Pino & Monte
[2023] FedCFamC2F 186
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pino & Monte [2023] FedCFamC2F 186
File number(s): MLC 10287 of 2021 Judgment of: JUDGE COPE Date of judgment: 27 February 2023 Catchwords: FAMILY LAW – parenting – parental responsibility – five year old – where final consent orders made for live with and spend time – discrete issue – parental responsibility for education and health – where father seeks mother be solely responsible for school fees – where mother’s orders sought argued to be a back door attempt to obtain a departure order – order made for equal shared parental responsibility. Legislation: Child Support (Assessment) Act1989 (Cth) s 116
Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 61DA, 65AA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: B v B: Family Reform Act 1995 (1997) FLC 92-755
Chappell & Chappell [2008] FamCAFC 143
Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133
Goode & Goode (2006) FLC 93-286
Greeves & Greeves [2013] FamCA 422
Hamill & Hamill [2009] FamCA 1324
Longer & Longer [2013] FMCAfam 257
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Pavli & Beffa [2013] FamCA 144
Penski & Kocher [2013] FamCA 255
Saberton & Saberton [2013] FamCAFC 89
VR & RR (2002) FLC 93-099; [2002] FamCA 320
Division: Division 2 Family Law Number of paragraphs: 143 Date of hearing: 19 October 2022 Place: Melbourne Counsel for the Applicant: Mr Lovering of Counsel Solicitor for the Applicant: Armstrong Legal Counsel for the Respondent: Ms Dunlop of Counsel Solicitor for the Respondent: Higgins Legal ORDERS
MLC 10287 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PINO
Applicant
AND: MS MONTE
Respondent
order made by:
JUDGE COPE
DATE OF ORDER:
27 FEbruary 2023
THE COURT ORDERS THAT:
1.All previous orders be discharged save and except the final consent parenting orders made on 7 June 2022 which are to remain in full force and effect and are to be read in conjunction with these orders.
2.The parents have equal shared parental responsibility for all major long term issues about the care, welfare and development of the child, X born in 2017 (“the child”).
3.All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.
NOTATIONS:
A.The court notes that the father has no objection to the mother selecting the child’s school, on the basis that in the event that the mother selects a private school then she is to be solely responsible for the fees.
B.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pino & Monte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART ONE: INTRODUCTION
The application before the Court is in relation to parental responsibility for the child X born in 2017. X was five years old at the time of the hearing.
The parties had a short term relationship. They did not live together. X was born after the parties had separated. The mother’s evidence is that she became aware of the pregnancy shortly prior to the birth. The first the father knew was after the birth of X.
Each party has good family support, noting that each party lives with their respective parents.
Each party finds fault with the other about various issues including communication, facilitating relationships and care of the child.
Prior to commencing proceedings, the parties attended eight mediations and evolved various parenting plans, noting that there is some dispute as to whether those plans were signed or indeed complied with consistently. The parties are however to be congratulated on their ongoing efforts to reach agreement which has led to the child spending increasing time with his father and a positive relationship developing.
The father filed an Initiating Application on 17 September 2021.
Consent orders made on 7 June 2022 provide for X to live with his mother and a build-up of time with the father to alternate weekends from Friday to Monday and block time in school holidays. The parties are to be commended for reaching agreement on the majority of issues.
The outstanding issue relates to parental responsibility. The main issues of dispute are as to which school X should attend and who shall bear the expense and the child’s health issues and how those are best met.
PART TWO: THE PROPOSALS
In addressing each party’s application I summarise the significant orders sought rather than repeat them verbatim.
The Father’s Proposal
In the Amended Initiating Application filed on 11 October 2022 the father sought orders for equal shared parental responsibility.
At the end of the trial the father proposed orders that the parties have equal shared parental responsibility, save that the mother may choose which school the child is to attend and be solely responsible for the cost of that school and that she may alone make school related decisions with a financial impact but that she alone be solely responsible for the associated costs.
The Mother’s Proposal
In the Amended Response filed on 12 August 2022 the mother sought orders that she have sole parental responsibility.
In summary, at the end of the trial the mother proposed the court make orders for shared parental responsibility save that she have sole parental responsibility for decisions regarding the child’s health and education.
PART THREE: THE EVIDENCE
The father’s Outline of Case was filed on 17 October 2022 and that sets out the documents relied upon.
The mother’s Outline of Case was filed on 17 October 2022 and that sets out the documents relied upon.
The following documents were tendered:-
(a)Exhibit F1 – Pages 639-678 of the Court book – correspondence between the mother and father;
(b)Exhibit M1 – Mother’s proposed orders;
(c)Exhibit F2 – Father’s proposed orders.
The parties have had the benefit of a Family Report prepared by Mr B dated 8 February 2022 and filed on 4 October 2022.
I have considered that material in reaching this decision and the evidence of the parties and the witnesses under cross examination.
The Witnesses
The Father
The father underwent a lengthy cross-examination. He was calm, considered and thoughtful. He was clearly attempting to give a good account of himself.
The father’s understanding was that he paid child support, and that child support should cover all the needs of the child. He was reluctant to sign school enrolment or other forms or to make any concessions which might make him responsible for any expense over and above the child support assessment.
Evidence was adduced from the father at the commencement of his time in the witness box to the effect as follows:
(a)that he had signed and provided to the school the enrolment form so that X could attend C School, with a notation to the effect that the mother would be solely responsible for the fees;
(b)that he did not care which school X attended but did not want to pay for it; and
(c)that the mother could enrol the child in any school of her choosing, so long as he was not required to assist with the school fees.
The father has a reluctance or inability to contribute over and above the child support assessment. I note his unchallenged evidence is that he pays $6,000 per annum by way of child support. This reluctance to pay private school fees does not mean that he does not love and want the best for the child.
Overall I am satisfied that the father presented as child focused. I accept his evidence.
The Mother
I am satisfied that the mother is a loving and child focused parent. I am satisfied that she too was trying to give a good account of herself.
She conceded that X loves his father, and that it was important for his father to be involved in his life.
At one point the mother appeared to agree with a variety of propositions that were put to her, however it became apparent that she was simply agreeing that propositions were being put to her, rather than agreeing with the contents of the propositions. That was somewhat confusing.
She did not agree that the father was following her medical advice in relation to the child and this is where the lack of trust was reflected. That was disappointing as I am satisfied that the father accepts X’s health challenges and has attempted to educate himself.
When asked why the father was not on the enrolment form for kindergarten, she said that as he had not signed the form his details could not be included; that for his name to be on the form he was required to sign it. She gave similar evidence about why his name was not on the records for the GP. I struggle to accept that evidence.
The explanation the mother gave for the father not being an emergency contact on the child’s enrolment forms was because her own father was closer to the child’s day care. I do not accept that as a satisfactory explanation in circumstances where the father’s details were not otherwise on the enrolment form.
I am of the view that the mother unnecessarily excluded the father from access to kindergarten information. I understand that it is frustrating when a parent is not paying the fees that they receive the benefits of information and access, but nonetheless it is in X’s best interest that both his parents are fully informed regardless of their financial input and that the father be available to X in the event of an emergency.
Under cross examination, the mother conceded that she would complete the enrolment forms for C School now that the father had done so and that the child would attend that school. What was not agreed was the issue of the expense for that school.
Mr B – Family Report writer
The Family Report writer gave evidence to the effect that he supported orders for equal shared parental responsibility, and expressed the opinion that sole parental responsibility was a blunt instrument that excluded one parent completely.
He talked of the different personalities of the parents - that the mother is keen to get things moving and is a decision maker while the father is wary and watchful, looking for the hidden agenda. His opinion was that the father struggled to put forward ideas, while the mother was inherently an ideas person.
He was of the opinion that the mother’s criticism of the father for taking the child to the doctor without advising her (noting that this was a mistaken belief) was an inappropriate criticism. He acknowledged that the parties did not trust each other, and was of the view that the issue between them was really in relation to financial matters.
He expressed the opinion that the father feels bombarded by the mother at times.
I share his opinion that the communication by both parties was polite and that there was a lot of positives in those communications.
Under cross examination the Family Report writer’s opinion remains that equal shared parental responsibility is the preferred outcome.
He expressed the opinion that the father was wary about costs overall and struggled to absorb information about what he was responsible for. I agree that theme came through very clearly.
The Family Report writer is of the opinion that handled differently, the parties could have been in a very different place. He expressed the opinion that there was a lack of trust both ways – that the father did not trust the mother when it came to school fees and that the mother did not trust the father to meet the child’s health needs.
The Family Report writer expressed the opinion that X needed to know with certainty where he was going to school and needed to start transitioning. That issue was resolved during the trial as the father had signed enrolment forms and the mother had given evidence that she would also sign. His opinion, with which I agree, is that X should not be aware of this conflict between his parents he should be able to transition smoothly to formal education.
The Family Report writer expressed the view that the father needs to “step up”. This was in the context of the father’s failure to respond to the mother’s message about arrangements for Father’s Day in a more timely fashion. The father however accepted responsibility for that delay and not being able to attend the Father’s Day event with X. I commend him for that concession and trust that he has learned from it.
The Family Report writer made it clear that in his view the father’s delays in replying to the mother did not come from a malicious place but rather from a place of genuine anxiety.
I agree with the Family Report writer’s assessment that the mother simply says “I will manage somehow” whereas the father worries about “how” he will manage.
The Family Report writer expressed the view that the father would not undermine X’s ability to engage in activities or educational opportunities but would be anxious about his responsibility to meet the costs.
He was of the opinion that the father may need longer to make decisions, that the longer the time frame the better the father would manage.
In relation to equal shared parental responsibility, he expressed that the parents would need rules with deadlines for it to work well. He also expressed the view that the father should be able to attend appointments, school events and so forth regardless of whether he was financially contributing and that any orders would need to make that clear.
Discussion and Findings
I was impressed that both parents are very child focused. I am however also of the view that both are stubborn in their own ways. The father is stubborn about child support and not taking on any additional responsibility for the financial support of his son. The mother is stubborn about her views of the father’s failings in meeting the child’s health and medical needs.
The father and the mother are very different people. The mother is very direct and forth right. At time she can be very forceful. The Family Report writer described her as a “mover” and I would agree. The father, on the other hand, is somebody who needs time to consider his options, and perhaps to take advice - whether from his lawyer or from his family or some other person. The Family Report writer described him as being “anxious” rather than vexatious or malicious. I agree with that assessment.
The father’s carefulness has led to some disadvantages for the mother. For example she retained the child in a day care at the father’s request even though moving him to a different day care would have meant less fees. The mother is to be commended for taking the father’s views on board even though he was not construing financially.
Both parties acknowledge that they do not trust the other. Having heard their evidence I find that the father does not trust the mother not to take any concessions he makes or documents he signs or court orders and present them to child support in order to increase the amount of child support payable by him.
Having heard their evidence I find that the mother does not trust the father to meet the child's health and medical needs and does not accept his evidence that he acts protectively in relation to the child’s allergies.
I was somewhat troubled about the father’s insistence that he would not pay more money and the child support was the end of it. I raised with him the potentiality of orthodontics and sporting interest which can be very expensive. The child support assessment is in reality a basic basket of goods to cover basic living expenses. It could not possibly cover expenses such as orthodontic costs which can be thousands of dollars or extra-curricular or sporting activities where those are agreed.
I trust that I have made my view clear that the father’s financial assistance should not end with the child support assessment; that no doubt there will be expenses in the future to which he may need to contribute.
That said, I am of the view that private school fees are a luxury that many people cannot afford. An inability to pay private school fees should not mean that a parent cannot know about or be included in a child’s education. Similarly if a parent chooses not to pay private school fees for other than financial reasons they should not be excluded.
These parents each had a significant adjustment to make on the birth of X. Each of them had in reality no time to adjust and then had to share with their families that they were in fact instantaneous parents.
The parties are to be commended and I do commend them for the tone and content of their communications. I trust that once these proceedings are done, and particularly noting the extent of their agreements to date, that the clarity of those communications will improve. For the sake of their son it is most important that they start learning to trust each other and communicating their positions clearly. They may wish to consider the recommendation of the Family Report writer for family therapy, noting however that neither seeks such an order. They may consider putting reasonable time frames such as fourteen days on requests for feedback.
The mother has missed out on being able to enrol X in her preferred school, noting that C School is her compromise position. I formed the view that because of the lack of trust between the parties they had not been clear with each other. I accept the father’s evidence that whilst he knew X was on the waiting list for the mother’s two preferred schools, the mother never told him that X was actually accepted.
I also accept the mother’s evidence that the father never clearly told her that she could pick any school she liked so long as he was not responsible for the costs.
Other issues I noted about communication are as follows:
(a)That each party has annexed conversation they have had in the parenting app which reflects in the main mutually respectful, polite and appropriate conversations. I acknowledge that there is some squabbling and miscommunication but am of the view that this is the exception rather than the rule;
(b)Neither parent has annexed inappropriate or rude communications between them;
(c)While the mother complains of the father’s delays in responding at times, I am not pointed to any examples which indicate excessive or detrimental delays other than the father missing out on a Father’s Day event due to his own delay;
(d)While the father fails to provide the mother with a direct answer about school fees he does respond, though I accept he needs to make his position clear;
(e)As regards the arrangements for Father’s Day, each party’s evidence is vague to say the least. Neither party provides any specific evidence about when the information came to hand about the function at kindy. The father’s evidence is that he became aware in “late August” and that he responded on 2 September. The mother gives affidavit evidence that he had two weeks to respond and failed to do so. The father concedes that he should have responded sooner and that his failure to do so meant that he and X both missed out.
Sometimes coming to court and the parties seeing each other in the witness box and hearing each other’s worries and concerns can come a long way to resolving issues and repairing relationships. I trust that the parties truly listened to each other and the views of the Family Report writer and that they will use those tools going forward.
Both parents acknowledged that their relationship as parents did not get off to a good start because of the simple fact that there was no nine month pregnancy in which to become accustomed to the idea and set the ground rules. I impressed on the parties at the conclusion of the evidence that they were each very different people and they need to give each other some leeway.
I am satisfied the father has done the best he can to educate himself about X’s medical issues and school options.
As noted earlier, the mother was an impressive and child focused witness. She is very different from the father however she clearly loves her son very much and wants the best for him. What she has struggled with is the father’s position that he is not prepared to or is able to contribute to the cost of private education for their son.
Each parent complained that the other had not provided them with documents or information. I trust that they have listened to each other in the witness box and learnt that is important to be clear in what they say and ensure that they answer questions. It is not enough to say “I have already made my position clear” – answer the question.
PART FOUR: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting orders, s60CA and s65AA provide that the best interests of the child are the paramount consideration. The best interests of a child are ascertained by a review of the relevant s 60CC factors.
In this case final orders have been made about the child’s living arrangements and the issues remaining for determination relate to parental responsibility.
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
…[I]n our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
Those authorities must, however, be read in the context of s 65DAC(2) and (3) of the Act, which provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
The Full Court in Marvel v Marvel (2010) 43 Fam LR 348 at [103] acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility, stating that:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
There is clear authority that the court may make orders allocating sole parental responsibility for only some aspects of a child’s long term care, welfare and development whilst the parents retain shared parental responsibility for all other issues. One of the options that I am to consider in my determination is whether it is in the child’s best interests to do that and if so what terms and conditions should be imposed.
I was assisted by a number of authorities provided by the parties which usefully consider when orders for equal shared parental responsibility, shared parental responsibility or sole parental responsibility should be made.
PART FIVE: APPLICATION OF THE LAW
Departure Orders
A preliminary issue was raised at the commencement of the trial in relation to the second order sought by the mother at that stage, to the effect that the parties do all acts and things necessary to enrol the child at C School at Suburb D commencing in 2023. Counsel for the father submitted that this was in effect a back door attempt to obtain a departure order.
In Saberton & Saberton [2013] FamCAFC 89 at [12], the Full Court confirmed that, before considering an application under s 117, the Court must be satisfied of the matters set out in s 116(1) of the Child Support (Assessment) Act 1989 (Cth).
Section 116 relevantly provides:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b)both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c)in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
If the requirements of s 116(1) are satisfied, the Court is then required to consider and be satisfied of the matters set out in s 117 before making a child support departure order.
Rule 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires a proper process to be followed in the event a departure order is sought. It was conceded however that the proper steps have not been followed and ultimately I was advised that no Departure Order was sought.
Counsel for the father submitted that in the event that the court makes an order that the child attend a private school it is then open to the mother to seek a change of assessment on the basis of those private school fees. Certainly it was conceded by counsel for the mother that such an application could be made.
It was submitted that those matters needed to be considered very carefully in any orders that the court makes.
The position of the mother is that if the court makes an order for sole parental responsibility then no order needs to be made about the schooling but if the court made an order for equal shared parental responsibility, then the issue of schooling was undecided.
At the time those submissions were made there was no agreement as to education/school for the child in 2023. Although the father had signed the enrolment form he had written on that form that the mother was to be 100% responsible for the school fees. The mother does not agree that she should be solely responsible for the private school fees.
Parental Responsibility
I now turn to consider the application of the law to the particular circumstances of this case based upon the evidence and the findings that I have made, the reasons I have outlined for those findings and how they determine which parenting orders are in the best interests of the child.
In accordance with s 61DA(1), when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence. In this case no such allegations are made by either parent and therefore the presumption does apply.
I am asked by the mother however to make a determination that while an order for shared parental responsibility in terms of s 61DA(4) is in the best interests of the child, as regards the issues of education and health an order should be made that the mother have sole parental responsibility. Consultation clauses and related orders are also sought.
The father proposes equal shared parental responsibility but with the mother to be able to choose the child’s school, provided she is solely responsible for the financial aspects of her choice.
Primary Considerations
The Family Report writer expresses the opinion that the child is loved and will be well cared for by both parents. I do not doubt that. It is clear from their evidence that X is a well-loved child.
The father does not identify any risk factors for the child in the mother’s care.
Whilst the mother expresses concerns about the father’s mental health and his drinking, the father acknowledges his issues and gives evidence as to how he has addressed them. He acknowledges OCD and anxiety and tells the Family Report writer of his medications and his past engagement with therapeutic support including CBT treatment. His evidence is that he has addressed his alcohol use and describes himself now as “a social drinker” in interview with the Family Report writer.
Whilst the mother still points to these matters in her material I am of the view that they are historical, in the case of alcohol use, and managed, in the case of his mental health issues. The mother has agreed to consent orders that the father have substantial and significant time with the child. The father has been spending regular time with the child and no significant issues have arisen. I acknowledge the mother’s concerns regarding the father’s alleged failures to meet the child’s medical or health needs, but I am satisfied that those are well met by the father’s engagement with the child’s medical practitioner and efforts to ensure he is fully informed as to the child’s health needs as reflected in the communications annexed to the parties’ affidavits.
For those reasons I am satisfied that there are no issues of unacceptable risk of harm.
Additional Considerations
As regards the additional considerations each party has addressed them in their outline of case documents. I do not propose to go through each one in detail. I shall focus on those most relevant but have turned my mind to each of the s 60CC(3) factors.
Aside from his concerns about the mother’s ability to facilitate the child’s relationship with him, the father does not challenge the mother’s capacity to parent.
The mother raised a number of issues in relation to the father, which I was urged to consider relevant to the issue of parental responsibility, the most significant of which I address as follows:
The extent to which the father has engaged in decision making and time.
It is demonstrated in the parties’ direct communications that the father has been keen and has taken active steps to receive information from and be on the records at the child’s kindergarten.
It is a credit to the parties that they have mediated on a number of occasions. With such a young child, his capacity to spend time with the father was and is constantly increasing and the parties undertaking mediations at appropriate intervals allows that to be addressed. There has been a sensible progression of time since X was a young baby to the father ultimately spending substantial and significant time with him. This is a consequence of those mediations and negotiations during these proceedings as reflected in the interlocutory consent and final consent parenting orders.
I accept the father’s evidence that he has attended on the child’s GP on a number of occasions to ensure he understands the child’s health needs including allergies.
I accept the father’s evidence that he listens to the mother’s advice and is guided by her as to the appropriate care of X.
I am of the view that the parties have a proven capacity to agree as reflected in the consent orders made – both the two interim orders and the final orders.
I am satisfied that the father has done his very best to engage in decision making and time spending and has done so to the extent that X’s developmental capacity and the mother would permit.
Maintaining the child
It is an agreed fact that the father pays child support as assessed. In this case that amounts to about $6,000 per annum.
The child support assessment is for the basic basket of goods, to meet the child’s day to day needs. There will be additional costs in the future to which both parents will need to contribute. Such things as orthodontic work, therapeutic support, and agreed extra-curricular activities may well fall into the range of goods that require additional financial input from the father.
The mother’s evidence is that she earns $79,000 per annum and that she works three jobs to do so. She receives child support from the father. Her evidence was that the child’s day care cost were $168 per day however she received a government rebate at 80% such that she had to pay $42 per day. Her evidence is that amounted to about $13,000 per annum, noting that the child attended three days per week. I see the issue with the maths but this was her evidence.
The father has a similar income to the mother and has made it clear in his evidence in chief that he cannot and will not afford private school fees.
I am satisfied that both parents are doing what they can reasonably afford to support and meet the child’s needs.
Capacity to provide for the child’s needs and attitude towards the responsibilities of parenthood
The mother sees the father as lacking in capacity. She is of the view that he lacks insight and relies on his mother to meet the child’s needs. I do not agree for the following reasons;
(a)The communication between the parents shows the father asking for and receiving information about X’s routine, medical needs and well-being;
(b)The father has attended on the child’s doctor on a number of occasions;
(c)I accept the father’s evidence that he complies with the mother’s advice and with medical advice – using the appropriate skin care products and so forth.
When it comes to the issue of health, I have accepted the father’s evidence that he does follow the mother's advice and treats the child’s allergies. I was asked to find that health is a non-issue because of the failure to challenge the issue under cross examination, because it was not addressed in the Family Report and because the Family Report writer gave evidence that though it was raised it was not the most significant issue. It was his evidence that the focus was on the choice of school.
I am satisfied that the father has the capacity to meet the child’s needs. The mother has agreed to final parenting orders that allow the child substantial and significant time with his father which would indicate, although the mother states otherwise, that she is also satisfied with the father’s capacity.
Other considerations
I accept the evidence that X has a loving connection to both parents. When he undertook interviews in December 2021, the Family Report writer noted that there was sufficient bond and attachment with the father to increase time. The parents accepted that recommendation. X is a young boy who loves, and is loved by, both his parents.
The issue of family violence was not the subject of concern in the proceedings.
I agree with the parties that it is preferable to make orders to bring this litigation to an end so that the parties can move forward and co-parent their son. Submissions were made that unless this court made orders granting sole parental responsibility to the mother for education then there was a real risk of further litigation.
PART SIX: CONSIDERATION
It is not uncommon the parents have very different personalities. In fact this can be a benefit to a child; that there will be two different people with two different life views and decision-making processes contributing to the child. The fact that the parents are two different personality types does not mean that it is not in the best interest of the child that they communicate and jointly make decisions.
There is no evidence of any negative impact on the child of the differences in personalities.
There is now agreement as to the choice of school. The remaining issue is in relation to costs of that school. In the event that I am wrong about that the father has now made it clear that the mother may choose X’s school provided that she does not expect him to meet school fees.
I accept the father’s evidence in cross-examination that he accepts and follows the mother’s advice in relation to managing the child’s allergies and sensitivities. I agree that this is a non-issue.
I do not agree that the existence of two different personalities is a basis for the view that equal shared parental responsibility is rebutted as was submitted on behalf of the father. That would mean that orders for equal shared parental responsibility were rarely made as this court constantly sees parents with differing world views and beliefs.
I do not accept that because the father considers financial matters in making decisions that he should be excluded from decision making. Any parent making a decision about a child must consider their ability to afford the cost. This is particularly so when considering a private school where fees can be very high indeed. The fact that a parent cannot afford or does not want to pay private school fees does not mean that they are not focused on the best interests of the child.
I accept that at times these parents will struggle to reach agreement. That is not necessarily a bad thing. As noted above they will each bring their own viewpoints and beliefs. I am reassure by the fact that they have a proven history of being willing to mediate and an ability to reach agreement on most issues.
I was urged to consider the mother’s evidence that in February 2022 she had offered equal shared parental responsibility to the father but had withdrawn that offer based on the nature of their communication. I have looked at the communication between the parties after February 2022 and it is commendable. It is polite, it is courteous, it is inclusive and at times each party makes concessions. The fact that they do not agree does not mean that it is poor communication.
That said, I do not agree that the father was clear in his communications to the mother that the child support assessment would be the full extent of his financial contribution. I formed the view that the father was very careful in what he said to the mother – no doubt so as not to incur any additional liability. This made his communications obscure and no doubt clouded the mother’s understanding of his position.
Indeed I accept, as noted earlier, that at times both parties have been unclear in their communications. I agree that it is not an answer to a question to say words to the effect “I have already answered that”. Perhaps a parent might be repeating themselves but some things do bear repeating. I have no doubt the parents have learned from their mistakes, they are intelligent people, and will ensure clarity in future communications.
I see the submissions in relation to the issue of a child support departure application as being a red herring. It was conceded that there is no departure application before the court. I do not intend to make orders which impinge on the jurisdiction of the child support legislation in those circumstances.
I am asked to form the view that because the father is content with the child attending any school on the basis that the mother pays, he trusts the mother to make the right decisions. I accept that submission. That is a significant and appropriate concession by him. It is, however, one thing to concede that the mother may decide the school. It is another thing altogether to remove decision making capacity from the father in every aspect of the child’s health and education. I do not accept that automatically follows.
I was asked to discount the father’s view that the mother would cut him out if she had orders for sole parental responsibility. The father’s fears in this regard are not a matter upon which I have placed any great weight.
I accept that when the Family Report writer suggested an exploration of a more affordable school, the mother embraced that and made inquiries and in effect sprang into action. C School is not her first preference but she proposed that school as a compromise. This was also acknowledged by the father. The mother is to be commended for attempting to reach a compromise.
I am not critical of the father for writing on the enrolment form for C School a note to the effect that the enrolment was dependent on the mother solely accepting responsibility for the school fees.
I accept the mother’s evidence that she would complete the enrolment forms for C School when she attended the information session in November 2022. I accept her concession under cross examination that the choice of school for X was no longer an issue.
I do not accept the submission that the father will make decisions based solely on finances rather than what is in the best interest of the child. I repeat my view that being unable or unwilling to afford private school fees does not mean that a parent is not focused on the best interests of the child.
Having made those findings, the only outstanding issue is the cost of X’s education.
PART SEVEN: DETERMINATION
In summary, while the mother previously sought orders for sole parental responsibility, she now proposes that the court make orders for shared parental responsibility regarding matters concerning the child’s name, religion and culture and changes to his living arrangements that significantly impact time spending. She still proposes orders for sole parental responsibility in her favour regarding the child’s health and education.
In summary, the father seeks orders for equal shared parental responsibility save that he proposes the mother choose the child’s school and be responsible for the fees and that she also solely make school related decisions that have a financial impact - with the mother again to be solely responsible for those costs.
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. There are no such allegations in this matter.
I then turn to consider whether in terms of s 61DA(4) the presumption is rebutted; whether the evidence satisfies the court that an order for equal shared parental responsibility is not in this child’s best interests.
Factors which cause me to doubt whether an order for sole parental responsibility for health and education would be in the child’s best interest include the following:
(a)The father’s evidence that the mother enrolled the child in kindy without his consent, noting that this is denied by the mother;
(b)The difficulties the father has had engaging with the kindergarten and his inability to collect the child from kindy despite his efforts as reflected in the parents’ communication app;
(c)The fact that the mother had not listed the father as an emergency contact on the child’s enrolment at kindy as reflected in the father’s communication with the kindy;
(d)The troubling fact that his attempts to engage with the kindy were reported by the mother to the Family Report writer as indicative of a likelihood that the father may abscond with the child. There is absolutely no evidence to support such a suggestion;
(e)The mother’s evidence that she views the father signing the school enrolment form for C School as “blackmail” in circumstances where the consent orders of 7 February 2022 bear a notation that it is her wish that the child attend that school. This is in circumstances where the father’s evidence is that he cannot afford to contribute to the fees, which the mother estimated at $12,168. I do not agree that the father’s action amounts to blackmail;
(f)The mother’s refusal to concede that the communication between herself and the father had been good. Her evidence was that there have been no communication of any “worth”. She did concede however that it had improved since they started using the parenting app and that each parent responded to the other, even though they may not get the response they seek. I am of the view that the parents have positive and meaningful communications – they just sometimes don’t agree and have struggled to manage that;
(g)The mother’s evidence that every single time the child returned from the father’s care he struggled with allergic reactions and she placed this firmly at the father’s door. This is a sweeping and scathing generalisation for which there is no independent evidence;
(h)While the mother initially gave evidence that she simply wanted to choose the school, under cross examination she gave evidence that she wished to make all decisions in relation to educational matters and in particular in relation to financial matters where the father did not contribute financially. I am of the view that this is a harsh and inappropriate response to the father’s position;
(i)That in the Notice of Child Abuse, Family Violence and Risk filed on 15 October 2021 the mother states that the father suffers OCD, anxiety and depression and that she doesn’t want “these aspects projected onto our son”. This is a harsh view indeed;
(j)In their direct communication the mother made it clear to the father that if he was not contributing financially then he would have limited involvement in what happened at school. Fortunately by the time of trial her position had softened and she agrees that regardless of his financial input the father would be able to attend at the school, obtain school documents and be kept informed and consulted. That is only right and proper.
I propose to make orders for equal shared parental responsibility, for the same reasons that I am troubled about making an order for sole parental responsibility as outlined above, and based on the findings I have made and for the following further reasons which support equal shared parental responsibility working for these parents:
(a)I agree that for equal shared parental responsibility to work there needs to be communication. I have viewed the communications between the parties as annexed to the affidavit material and in the court book. That communication is polite, respectful and child focused. The difficulty is that they have just been dancing around the hard discussion of expenses and child support. Now that each parties’ position is clearly on the table they can negotiate more meaningfully;
(b)I was asked to consider that the parties were not effectively communicating; that while polite they had not actually achieved anything. In my view this was due to a failure to say outright what they wanted. This is no reason to deny a child the right of input from both parents – this is a fixable issue;
(c)The mother conceded that she had not always been clear on what she had said to the father, in particular about child support. She concedes that it was not solely the father’s issue. She gave evidence that whatever orders were made about the cost of the child’s education she would not take that to the child support and seek to increase the child support assessment. This was an impressive concession;
(d)I accept the mother’s evidence that she said she welcomed it when the father called the doctor and she encouraged him to do so. I accept that the mother wants the father to be involved in and informed about X’s health;
(e)I do not accept that the parties’ inability to reach agreement as to parental responsibility, particularly the child’s school, is reflective of their inability to compromise overall;
(f)I was asked to consider that the father placed finances above the best interests of the child. As noted earlier I am not of the view that a refusal or inability to pay private school fees means that the father is not child focused;
(g)I accept that the mother will do whatever is necessary to achieve the best outcome for the child. I am of the view that the father will also do whatever is necessary to achieve the best outcome for X;
(h)The parents have attended several mediations and they have worked hard and achieved consent on the majority of issues. I have confidence that the child focus of both will mean that they will continue in that work;
(i)I do not accept that if an order is made for equal shared parental responsibility that the parents would struggle to agree if there was any financial aspect. That is too sweeping a generalisation based on the evidence to hand and where there is only that one outstanding issue;
(j)I accept the father’s evidence that the communication between the parties had improved over time. This is certainly supported by the parenting app.
(k)The family report writer interviewed both parents and reviewed the material, and formed the view that equal shared parental responsibility was in the child’s best interests provided that the court can be satisfied that the father will respond in a timely fashion. I am satisfied that both parents have the capacity to improve their communication. I am satisfied that the father is aware that delay has been to the detriment of himself and X;
(l)The family report writer talks of the unusual start to their co-parenting relationship and the lack of trust between the parties. He recommends family therapy. I am reassured by the fact that the parties’ reached agreement on all issues save this issue.
(m)In relation to the difficulties arranging the child’s enrolment in school, I am of the view that fault lies with both parties. The father has signed the enrolment forms for the mother’s compromise school on the basis that the mother alone would need to meet those fees. The issue of choice of school is resolved.
(n)The mother has provided information to the father about health issues. The father’s evidence is that he followed that advice and also attended on the child’s GP on multiple occasions to ensure he was fully informed as to allergies and sensitivities. I have accepted that evidence.
(o)I accept the father’s evidence that he has actively sought to obtain information from the child’s kindergarten;
(p)Through these proceedings the parties have negotiated two consent interim parenting orders and the Final Consent Parenting Orders such that only the issue of parental responsibility remains to be determined.
(q)The father’s concession that the mother had not disregarded his views and had taken them into account - in particular when she continued the child’s attendance at day care as requested despite the greater financial cost. This indicated to me that there remained a level of trust and respect;
(r)The fact that the mother proposed equal shared parental responsibility in February 2022 means that she too has some trust in the father.
I have also considered the issue of the cost of X’s education. The father declines to meet the cost of a private school. I do not propose to make orders that require him to pay private school fees as there is no Departure Application before the court. If X is to remain at C School the mother must meet the cost of the choice that she has made, failing which X will need to attend a state school;
For all those reasons I do not propose to make the orders as sought by the mother to allocate sole parental responsibility to her for health and education. The criteria simply does not exist to satisfy me that it would be in the child’s best interests to do so. X has two loving, committed and child focussed parents who can each bring balance and support to every aspect of his life. To deprive the father of the opportunity of involvement is to deprive X of that balance in circumstances that do not justify such an extreme step.
Turning now to the actual form of orders sought by the father. I am of the view that his proposal that orders be made that the mother may, provided she is solely responsible for the cost, choose the school and make decisions with financial consequences about the education of X, in effect grants sole parental responsibility to the mother for that aspect of his care. I therefore do not propose to make orders in those terms for the same reason that I have declined to make the orders as sought by the mother. I shall however include a notation to that effect.
PART SEVEN: CONCLUSION
For this court to make orders that the mother have sole parental responsibility for any aspect of the child’s care, I would need to be satisfied that it is not in the child’s best interests to order equal shared parental responsibility. I am not so persuaded for the reasons I have outlined above.
I am of the view that it is in the child’s best interest that the parents have equal shared parental responsibility. I have every confidence, now that these proceedings are at an end, that the parents will move forward to co-parent and communicate positively and with clarity.
I now make orders in the attached terms.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 27 February 2023
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