Quayle and Hauer

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUAYLE & HAUER

[2014] FCCA 506

Catchwords:
FAMILY LAW – Parenting.

Legislation:

Family Law Act 1975

Applicant:

MS QUAYLE

Respondent:

MR HAUER

File Number:

PAC 1631 of 2012

Judgment of:

Judge Stewart

Hearing dates:

13 & 14 November 2013

Date of Last Submission:

14 November 2013

Delivered at:

Parramatta

Delivered on:

28 January 2014

REPRESENTATION

Counsel for the Applicant:

Mr Morley

Solicitors for the Applicant:

McPhee Kelshaw

ORDERS

That the parties have equal shared parental responsibility for the child X born (omitted) 2001.
That X live with the mother.
That X spend time with the father as follows:
(a)During the school term, each alternate weekend from Friday evening to Sunday evening;
(b)In the event that the father spends the alternate weekend time referred to in the preceding subparagraph in the (omitted) local council area, then the father’s time with X shall be extended so that such time commences at the conclusion of school on Friday afternoon and concludes at the commencement of school on Monday morning;
(c)The alternate weekend time referred to in subparagraph (a) shall recommence in each new school term on the first weekend that falls after X is scheduled to return to school for that new school term;
(d)On the weekend in which Father’s Day falls each year, from Friday evening to Sunday evening.
(e)For half of the school holidays on dates agreed in writing between the parties and in default of such agreement:
(i)For the second half of the school holiday in years ending in an even number, commencing 2014;
(ii)For the first half in years ending in an odd number commencing 2015.
That for the implementation of school holiday time the following shall apply:
(a)The school holidays shall commence at 3pm on the last day that X is scheduled to attend school for each term;
(b)The school holidays shall conclude at 3pm on the day before the first day that X is scheduled to attend school for the new school term;
(c)In the event that the duration of any school holiday is an odd number of days then the number of days in the father’s half of that school holiday shall be determined by dividing the number of days in half and then adding one day to the father’s time.
(d)The changeover time on the midpoint of the school holidays shall be 3pm (at (omitted) train station).
That the father’s time pursuant to paragraph 4 shall be suspended as follows:
(a)On the weekend which Mother’s Day falls each year, from Friday evening to the evening of Mother’s Day;
(b)Alternate weekend time shall be suspended during school holidays;
That for the purpose of weekend changeovers the following arrangements shall apply:
(a)The mother or her nominee shall deliver X to the father at (omitted) Train Station at the commencement of the Father’s time with X;
(b)The father or his nominee shall deliver X to the mother or her nominee at (omitted) Train Station at the conclusion of the father’s time with X.
(c)The Mother shall do all things necessary to ensure that X catches the earliest available train that leaves (omitted) station for (omitted) after the conclusion of school for X on the Friday afternoon.
(d)The father shall do all things necessary to ensure that X is delivered to the mother not later than 5.30pm on Sunday so the mother and X have sufficient time to catch the 5.40pm train from (omitted) to (omitted).
That for the purpose of school holiday changeover, the following arrangements shall apply:
(a)The mother or her nominee shall deliver X to the father at (omitted) Train Station at the commencement of the father’s time with X;
(b)The father or his nominee shall deliver X to the mother or her nominee at (omitted) Train Station at the conclusion of the father’s time with X.
That X shall go to (omitted) High School for her secondary schooling.
That each party be restrained from altering X’s school from (omitted) High School other than in accordance with the written consent of both parties.
In the event that either party takes X to a dentist or optometrist, such party shall provide written notification to the other party of the outcome of the appointment, including any treatment recommendations issued by the medical practitioner within 3 days of the appointment occurring.
That except in case of emergency, each party shall give the other party not less than 14 days’ notice of any proposed psychological or psychiatric treatment of X, counselling of X or attendance by X upon a medical specialist and such notice shall be in writing and shall include the name and address of the treating practitioner.
That each party do all things necessary to ensure that the other party is notified in writing and within 48 hours of any change to any of the following:
(a)A party’s residential address;
(b)X’s residential address;
(c)A party’s mobile telephone;
(d)A party’s email address.
That each party shall be restrained from:
(a)Denigrating the other party in the presence or hearing of X;
(b)Allowing or permitting any third party to denigrate the other party in the presence or hearing of X;
(c)Using X to convey oral or written messages between the parties.
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 is set out in Attachment A and these particulars are included in these orders.
Dismiss all outstanding applications and responses and remove all issues from the list of pending cases maintained by the Court.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.

IT IS NOTED that publication of this judgment under the pseudonym Quayle & Hauer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1631 of 2012

MS QUAYLE

Applicant

And

MR HAUER

Respondent

REASONS FOR JUDGMENT

These are contested proceedings under the Family Law Act 1975, concerning the parenting arrangements for the child X (“X”) who was born on (omitted) 2001 and is accordingly twelve years of age.
X’s parents are the parties to these proceedings.
The Applicant Mother, Ms Quayle was born on (omitted) 1971 and is 42 years old.
The Respondent Father, Mr Hauer was born on (omitted) 1973 and is 40 years old.
The parties began living together in about 1997 and married on (omitted) 2001.
The parties separated on 16 December 2006. At the time of separation the Mother and X remained living in the matrimonial home at (omitted) and the father relocated to the Sydney metropolitan area. The parties were divorced on 13 July 2013 and have both re-partnered.
X presently continues to live with her mother in (omitted) in the (omitted) and spends 2 out of 3 weekends and half the school holidays with her father in Sydney.
The mother currently studies part time as a (course omitted) of the University of (omitted) and since 2012 has cared for her Grandmother (X's Great Grandmother). Since May 2012, the mother has been in receipt of the Centrelink carer’s allowance.
The father is employed as an (omitted) and lives in (omitted), Sydney. He earns just under (omitted) per annum.
The Mother commenced proceedings in the Federal Circuit Court of Australia filing an Initiating Application on 19 April 2012. In that Application the Mother sought Orders as follows:
1. That the parties have joint parental responsibility for the child X born (omitted) 2001.
2. That X live with the mother.
3. That X spend time with the father as follows:
a. During the school term, each alternate weekend from Friday evening to Sunday evening;
b. In the event that the father spends the alternate weekend time referred to in the preceding subparagraph in the (omitted) local council area, then the father’s time with X shall be extended so that such time commences at the conclusion of school on Friday afternoon and concludes at the commencement of school on Monday morning;
c. The alternate weekend time referred to in subparagraph (a) shall recommence in each new school term on the first weekend that falls after X is scheduled to return to school for that new school term;
d. On the weekend in which Father’s Day falls each year, from Friday evening to Sunday evening.
e. For half of the school holidays on dates agreed in writing between the parties and in default of such agreement:
i. For the second half of the school holiday in years ending in an even number, commencing 2012;
ii. For the first half in years ending in an odd number, commencing 2013.
f. In years ending in an even number, commencing 2012, for the weekend that falls immediately after Christmas Day, from Friday evening until Sunday evening.
4. That for the implementation of school holiday time the following shall apply:
a. The school holidays shall commence at 3pm on the last day that X is scheduled to attend school for each term;
b. The school holidays shall conclude at 3pm on the day before the first day that X is scheduled to attend school for the new school term;
c. In the event that the duration of any school holiday is an odd number of days then the number of days in the father’s half of that school holiday shall be determined by dividing the number of days in half and then adding one day to the father’s time.
d. The changeover time on the midpoint of the school holidays shall be 3pm (at (omitted) train station).
5. That the father’s time pursuant to paragraph 4 shall be suspended as follows:
a. On the weekend which Mother’s Day falls each year, from Friday evening to the evening of Mother’s Day;
b. Alternate weekend time shall be suspended during school holiday;
c. In years ending in an odd number, commencing 2013, for the weekend that falls immediately after Christmas Day, from the Friday evening to the Sunday evening.
6. That for the purpose of weekend changeovers the following arrangements shall apply:
a. The mother or her nominee shall deliver X to the father at (omitted) train Station at the commencement of the Father’s time with X;
b. The father or his nominee shall deliver X to the mother or her nominee at (omitted) Train Station at the conclusion of the father’s time with X.
c. The Mother shall do all things necessary to ensure that X catches the first train that leaves (omitted) station for (omitted) after the conclusion of school for X on the Friday afternoon.
d. The father shall do all things necessary to ensure that X is delivered to the mother not later than 5.30pm on Sunday so the mother and X have sufficient time to catch the 5.40pm train from (omitted) to (omitted).
7. That for the purpose of school holiday changeover the following arrangements shall apply:
a. The mother or her nominee shall deliver X to the father at (omitted) Train Station at the commencement of the father’s time with X;
b. The father or his nominee shall deliver X to the mother or her nominee at (omitted) Train Station at the conclusion of the father’s time with X.
8. That each party be restrained from altering X’s primary school from (omitted) Public School other than in accordance with the written consent of both parties.
9. That the parties each do all things and sign all documents necessary to enrol X in (omitted) High School at (omitted) commencing 2014.
10. That except in case of emergency either party shall give the other party not less than 7 days’ notice of any appointment for X with a dentist, orthodontist and/or optometrist and such notice shall be in writing and shall include the name and address of the treating practitioner.
11. In the event that either party takes X to a dentist or optometrist such party shall provide written notification to the other party of the outcome of the appointment, including any treatment recommendations issued by the medical practitioner, within 3 days of the appointment occurring.
12. That except in case of emergency, each party shall give the other party not less than 14 days’ notice of any proposed psychological or psychiatric treatment of X, counselling of X or attendance by X upon a medical specialist and such notice shall be in writing and shall include the name and address of the treating practitioner.
13. That each party do all things necessary to ensure that the other party is notified in writing and within 48 hours of any change to any of the following:
a. A party’s residential address;
b. X’s residential address;
c. A party’s mobile telephone;
d. A party’s email address.
14. That each party shall be restrained from:
a. Denigrating the other party in the presence or hearing of X;
b. Allowing or permitting any third party to denigrate the other party in the presence or hearing of X;
c. Using X to convey oral or written messages between the parties.
The Father filed a Response on 17 May 2012 seeking orders as follows:
1. That Mr Hauer and Ms Quayle are to have equal shared parental responsibilities for decisions relating to the major long-term issues for the child (X, born (omitted) 2001) except as otherwise ordered.
2. That either party, their servants and/or agents be and hereby be restrained from removing or attempting to remove or causing or permitting the removal of the said child from the state of New South Wales without the express written consent of the other parent.
3. That either party, their servants and/or agents be and hereby be restrained from removing or attempting to remove or causing or permitting the removal of the said child from the Commonwealth of Australia without the express written consent of the other parent.
4. That until completion of the child’s primary education in December 2013 the child maintains primary residence with the mother except as otherwise ordered.
5. That from January 2014, upon the commencement of the child’s secondary education the child maintains primary residence with the father except as otherwise ordered.
6. That the father be restrained from relocating outside the Sydney metropolitan area.
7. That the Mother be restrained from relocating from the (omitted) Area except to move to the Sydney metropolitan area at the commencement of the child’s secondary education in January 2014.
8. That the child is to complete her primary school education at (omitted) Public School.
9. That the Mother and Father do all things and sign all documents necessary to ensure the child enrol in (omitted) Girls High for the commencement of her secondary education in 2014.
10. That the child live with the father at the following times:
From the second school term in 2012 up to and including the fourth term in 2012: -
From 5.30pm Friday to 5.30pm Sunday, two weekends in three, being the first and second weekends in the group of three, with the group of three commencing on the first weekend after the commencement of each school term.
a. If the Friday of the period the child is to live with the father is a public holiday, or student free day, the period the child lives with the father is to commence at 5.30pm Thursday.
b. If the Monday following the period the child has lived with the father is a public holiday, or student free day, the period the child lives with the father is to conclude at 5.30pm that Monday
For the first half of the term 2 and 3 school holidays, with the first night to commence at 5.30pm on the last day of school.
c. In the event that the duration of any term holiday period is an odd number of days then the number of days in the father’s half of the school holiday shall be determined by dividing the number of days in half then adding one day to the father’s time.
From the first school term in 2013 up to and including the fourth term in 2013: -
From 5.30pm Friday to 5.30pm Sunday, two weekends in three being the second and third weekends in the group of three, with the group of three commencing on the first weekend after the commencement of each school term.
a. If the Friday of the period the child is to live with the father is a public holiday, or student free day, the period the child lives with the father is to commence at 5.30pm Thursday.
b. If the Monday following the period the child has lived with the father is a public holiday, or student free day, the period the child lives with the father is to conclude at 5.30pm that Monday.
For the second half of the term 1, 2 and 3 school holiday, with the first night to commence at 5.30pm at the midpoint of the holiday period.
c. In the event that the duration of any term holiday period is an odd number of days then the number of days in the fathers half of the school holiday shall be determined by dividing the number of days in half then adding one day to the father’s time.
December 2012/January 2013 Christmas School holidays and each alternate December January Christmas school holidays thereafter
a. From 5.30pm on the first Sunday that falls after the last day of school in the preceding term until 5.30pm on the 28^th of December
b. From 5.30pm on the 9^th of January for a period of 10 days, to conclude at 5.30pm 19^th December.
c. From 5.30pm on the last Friday prior to the commencement of the new school year, until Sunday 5.30pm two (2) days later.
During each Christmas school holiday period commencing December 2013/January 2014 and each alternate Christmas school holiday period thereafter:-
a. From 5.30pm on the first Friday that falls on or after the last days of school in the preceding term until 5.30pm the following Sunday.
b. From 5.30pm on the 28^th December for a period of 12 days to conclude at 5.30pm on the 9^th of January.
c. For the last ten (10) days of the Christmas school holidays to conclude at 5.30pm on the Sunday prior to the commencement of the new school year, and to commence at 5.30pm on the Friday (10) days earlier.
11. That from the commencement of term 1 2014 the child is to live with the mother at the following times provided that, the mother maintains residence in the (omitted) Area.
During each school term from the first school term in 2014 and all other school terms in even years onwards
i. From 5.30pm Friday to 5.30pm Sunday, two weekends in three being the second and third weekends in the group of three, with the group of three commencing on the first weekend after the commencement each school term.
a. If the Friday of the period the child is to live with the mother is a public holiday, or student free day, the period the child lives with the mother is to commence at 5.30pm Thursday.
b. If the Monday following the period the child has lived with the mother is a public holiday, or student free day, the period the child lives with the mother is to conclude at 5.30pm that Monday.
ii. For the second half of the term 1, 2 and 3 school holiday, with the first night to commence at 5.30pm at the midpoint of the holiday period.
a. In the event that the duration of any term holiday period is an odd number of days then the number of days in the mother’s half of the year
December 2013/ January 2014 Christmas school holidays and each alternate December January Christmas school holidays thereafter:-
a. From 5.30pm on the first Friday that falls on or after the last days of school in the preceding term until 5.30pm the following Sunday.
b. From 5.30pm on the 28^th of December for a period of 12 nights to conclude at 5.30pm on the 9^th of January.
c. For the last ten (10) days of the Christmas school holidays to conclude at 5.30pm on the Sunday prior to the commencement of the new school year, and to commence at 5.30pm on the Friday (10) days earlier.
During each Christmas school holiday period commencing December 2014/January 2015 and each alternative Christmas school holiday period thereafter
a. From 5.30pm on the first Sunday that falls after the last day of school in the preceding term until 5.30pm on the 28^th of December;
b. From 5.30pm on the 9^th of January for a period of 10 days, to conclude at 5.30pm 19^th of December;
c. From 5.30pm on the last Friday prior to the commencement of the new school year, until Sunday 5.30pm two (2) days later.
12. That from the commencement of Term 1 2014, provided that the mother has relocated to a residence within 20km radius of the father:-
a. That the child is to maintain residence with the father from the first day the child is required to attend school for her secondary education until the following Monday, and each alternate week thereafter.
b. That the child is to maintain residence with the mother from after school on the first Monday following the commencement of the child secondary education, until after school the following Monday one week later, and each alternate week thereafter.
c. That Christmas school holiday arrangements follow those in section 11.
13. That each school holiday period is deemed to commence at the conclusion of school on the last day on which the child is required to attend school and is to conclude at 9.00am on the first day which the child is required to attend school in the following school term, and any pupil free day occurring immediately after any school holiday period, is deemed to be part of the school holiday period.
14. That the child is to spend special occasions each year with the mother and the father as follows:
a. If Father’s Day falls on a weekend when the child is not living with the father then the child is to live with the father from 5.30pm Friday to 5.30pm Sunday of the Father’s Day weekend, such period to be in lieu of any other weekend or time as agreed by the parties. Provided that the parties are unable to agree, the next weekend the child is to live with the father as provided for in orders shall instead be spent with the mother.
b. If Mother’s Day falls on a weekend when the child is not living with the mother then the child is to live with the mother from after school on Friday to before school of the Mother’s Day weekend, such period to be in lieu of any other weekend or time as agreed in writing by the parties. Provided that the parties are unable to agree, the next weekend child is to live with the mother as provided for in orders shall instead be spent with the father.
c. If the father’s Birthday falls on a weekend when the child is not living with the father then the child is to live with the father from 5.30pm Friday to 5.30pm Sunday of the Father’s birthday weekend, such period to be in lieu of any other weekend as agreed in writing by the parties. Provided that the parties are unable to agree, the next weekend child is to live with the father as provided in orders shall instead be spent with the mother.
d. If the mother’s Birthday falls on a weekend when the child is not living with the mother then the child is to live with the mother from after school on Friday to before school of the mother’s Birthday weekend, such period to be in lieu of any other weekend as agreed in writing by the parties. Provided that the parties are unable to agree, the next weekend child is to live with the mother as provided in orders shall instead be spent with the father.
15. That in the event the child is too ill to live with the father/mother as set out in orders, the child will spend that weekend with the mother/father. Such period to be in lieu of any other weekend as agreed in writing by the parties. Provided that the parties are unable to agree, the next weekend child is to live with the mother/father as detailed in orders, shall instead be spent with the father/mother provided that the mother/father provides the father/mother with a medical certificate issued by a registered medical practitioner stating the child’s illness and confirming they are too ill to present for an exchange of care times, and that this certificate be provided to the father/mother as soon as reasonably practical, and in any event prior to the next period to which the child would be in their care. If the mother/father is unable to provide a medical certificate, care times will remain unchanged and the orders shall prevail for the periods in question.
16. That changeover periods for when the child is living with each parent occur as follows provided that the mother maintains residence in the (omitted) Area.
i. That until the completion of the child’s primary education
a. The mother delivers the child to the father’s residence at the commencement of the father’s care period, and is to arrive between 6.00pm and 7.00pm
b. The father delivers the child to the mother’s residence at the conclusion of the father’s care period, and is to arrive between 6.00pm and 7.00pm.
ii. That from the commencement of the child’s secondary education
a. That the father delivers the child to the mother’s residence at the commencement of the mothers care period, and is to arrive between 6.00pm and 7.00pm.
b. That the mother delivers the child to the father’s residence at the conclusion of the mothers care period, and is to arrive between 6.00pm and 7.00pm.
iii. That any servant and or agent of the mother or father may be permitted to collect or deliver the child at the commencement and conclusion of each care period provided that the other parent is notified of the name of the servant or agent in writing as soon as reasonably practical, and in any event prior to the exchange of the child.
17. That when the child is living with either parent, she is to have access to telephone communication with the other parent as follows:-
a. On any days as requested by the child.
b. To receive telephone calls from the parent with whom the child is not living at any reasonable time.
c. For the purpose of telephone communication, the parent with whom the child is then living is to do all things necessary to facilitate such communication by telephone including.
i. Ensuring the child is made available
ii. Ensuring the child is able to speak to the other parent on an uninterrupted basis as is practicable.
d. That for the purpose of telephone communication, the father’s phone numbers be (omitted) and (omitted), and the mother’s phone number be (omitted) and (omitted).
18. That each parent is restrained from denigrating the other parent or their family to any member of any school faculty where the child is enrolled or is proposed to be enrolled; or in the presence or hearing of the child, and is restrained from causing or permitting any other person to so denigrate to or in the presence or hearing of the child.
19. That each parent is restrained from denigrating the other parent or their family on nay public or private social networking medium, including but not limited to Facebook or Myspace, and is restrained from causing or permitting any other person to so denigrate on any said medium.
20. That the mother and father are to notify each other in writing not more than forty eight (48) hours after any change to their residential address and/or email address and/or telephone contact numbers including providing the details of the changes of address and/or email address and/or telephone contact number.
21. That the parent with whom the child is living is to provide the other parent in writing the address and telephone contact numbers of where the child will be staying overnight for any period of two or more nights prior to the commencement of such period provided that the address is not the parents residential address.
22. That in the event the child is cared for by any servant and or agent of the parent deemed responsible for care in orders, for a period of two nights or more, that the other parent be notified of such as soon as reasonably practical and in any event prior to the commencement of third party care, and include in notification the name or names of servants and or agents delegated to fulfil care roles and the dates for when such care is to occur.
23. That during any period which the child is living with each parent, in the event of the child being hospitalised or receiving urgent medical attention, the parent with whom the child is living at that time is to notify the other parent as soon as practicable (and in any event within two (2) hours) after the first contact with either the medical practitioner, medical centre or hospital including the details of the illness, injury, the treating doctor and the prognosis and treatment including prescribed medication of the child if it is known.
24. That each parent is to keep the other informed in writing as soon as is reasonably practicable of:
a. Any non-urgent medical problems or illness suffered by the child; and
b. Any medication that has been prescribed to the child or over the counter medication administered to the child for any non-urgent medical condition.
25. That the mother and father are to consult with each other in relation to the non-urgent attendance of the child on any medical specialist and in the event that there is a dispute over the selection of the medical specialist the parent responsible for primary care is to be solely responsible for nominating which includes any specialised medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist (hereafter referred to as “consultant”) provided that:
a. In the event that the child is referred to any such consultant, the parent responsible for scheduling attendance is to inform the other parent in writing as soon as practical of any specialist appointments;
b. That the parent responsible for the child’s attendance of such special consultant, as soon as possible after the initial appointment is made and prior to the first appointment authorise the consultant to discuss such matters with the other parent.
c. That the parent responsible for such attendance, do all acts and things to ensure that the other parent is provided with detailed information of the outcomes of such consultation, copies of any test results, letters of referrals, reports, and letters received from and by such consultant.
26. That the parent responsible for primary care ensures that the child attends for dental check-ups at least every 6 months, and for optical check-ups every 12 months.
27. That the mother and father are restrained from allowing the child to consult with or attend for psychological treatment unless otherwise agreed by both the mother and father in writing.
28. That each parent may attend any school at which the child is enrolled for the purpose of attending any event to which parents are invited by the school including prize days, sports carnivals and parent teacher interviews.
29. That neither the mother nor the father are permitted to enrol the child to participate in any extracurricular activity that would require the child to attend when the child would otherwise be living with the other parent without the written consent of the other parent.
30. That the mother and father are to maintain all communication through email, or where email is unavailable through registered mail, regarding any items of significance or items which are required to be communicated between them for the purpose of the child’s welfare, and each parent is to ensure that such communication is confined to such matters and is polite and courteous.
a. That all emails or letters, and all issues raised in emails or letters, be answered within seven (7) days of the preceding email.
b. That for the purpose of the above, the father’s email address be (omitted) and the mother’s email address be (omitted).
c. That in the event communication is of an urgent nature, either parent may be permitted to contact the other via the telephone numbers provided in 18.

The orders the father sought were prolix and many aspects of them were not argued at trial. Each of the parties approached the parenting issue dispute in a more general overarching way.
At the commencement of the hearing, the issues in dispute between the parties were in general terms as follows:-
a)whether the mother should have sole parental responsibility for matters relating to X’s education;
b)which school X should attend the commencement of her secondary education in 2014;
c)in the event that X continues to live with her mother, whether she should spend each alternate weekend with her father or two out of three weekends with her father.
Shortly after the commencement of the hearing, the mother withdrew her application for sole parental responsibility pertaining to education issues. She did so because following these proceedings, the issue as to which school X will attend for her secondary education will have been heard and determined. Accordingly, it is agreed that the parties will have equal shared parental responsibility for X.
On 30 May 2012 an Order was made pursuant to section 62G(2) of the Family Law Act 1975 for the preparation of a Family Report. Such Report was released to the parties on 7 March 2013.
The Family Report of Regulation 7 Family Consultant Ms M made recommendations that:
a)The parents share parental responsibility for X, except that the parent with whom X lives have responsibility for her educational needs.
b)X continue to live with her mother; and
c)X spend time with her father each alternate weekend from Friday afternoon until Sunday afternoon.
Following release of the Family Report and on 19 April 2013, procedural orders were made and the matter listed for trial for two days commencing 13 November 2013.

Background

In preparing these reasons, it is not possible to include all aspects on which I heard or on which there was evidence. I have however considered all of the evidence in the proceedings and taken all evidence into account. If I have not mentioned a particular fact or matter in these reasons it does not mean that I did not have regard to it.
In these reasons a statement of fact is a finding of fact.
At the date of separation, X was five years old. Since that time she has lived primarily with her mother in the (omitted) area.
X is the only child of both the mother and father.
The mother has formed a new relationship with Mr A. Mr A has a child A. The mother and Mr A do not live together. There was a dispute in the proceedings as to whether or not the mother proposed moving to live with Mr A in a different area. Mr Hauer was concerned in relation to a possible move and the disruption that may cause to X and her ongoing education. The mother said, and I accept, that she has no intention of moving X’s residence from the (omitted) area. She said that she did not wish to move X away from her family in the (omitted) area. The maternal grandparents live close by as does X’s great maternal grandmother.
X sees her maternal grandparents and her great grandmother regularly and derives a great deal of pleasure out of spending time in the company.
There had been a previous proposal that X attend the (omitted) School. Initially the maternal grandparents had offered to pay the tuition and school fees with respect to X’s attendance at that school. However due to their own personal financial circumstances, they now find themselves in a position where they are unable to do so.
Accordingly, the mother was in a position where she had to research an alternative education plan for X. Initially she had not been happy with the idea of X attending (omitted) high school. However, she attended that school for its Orientation Day (as did the father) and was impressed with the facilities it was able to offer. The mother was also impressed with two gifted streams to students. She made enquiries and X is able to be placed in the second tier gifted stream
The father would like X to attend (omitted) School which is close to his home. That school imposes tuition fees in the vicinity of $3500 per annum. The father said he would pay those fees notwithstanding having a personal income of less than $15,000 per year. When cross-examined on that issue, he indicated that he would commit to the payment of those school fees and that he could obtain some financial assistance from his family if necessary.
The father presently has a ‘nil’ assessment for child support. Since separation, he has not earned a great deal of money and one of the criticisms the mother makes is that he has rarely been in gainful remunerative employment, preferring instead to rely on his domestic partner’s support.
Although the father agrees that he has a nil assessment for child support and has a limited income, he says that he supports X when she is in his care and he buys her things when she is in his care.
The father has a new partner, Ms J. Ms J is aged 28 years. She and the father commenced their relationship in 2009. Ms J does not have children. Ms J describes a special relationship between herself and X, almost as that of a confidant to X. Ms J is employed as a (omitted) and supports the father in his application including an application for X to live with them in the event X attends a school close to their home.
Following separation, X spent time with the father sporadically having regard to his accommodation at that time. From around 2008 and after the father obtained his own rental accommodation, X commenced to spend regular time with the father, usually each alternate weekend. From 2009, X started to spend two out of three weekends with the father and that arrangement has continued to date. X has also spent school holiday time with the father and there is a dispute between the parties as to whether the father has spent half of the school holidays with her or rather a period of four weeks only. The father seeks half school holidays and there is no reason why he should not spend that time with his daughter. In terms of the dispute as to whether the father has spent four weeks or one half of the school holidays with his daughter in the past, this will make no difference to the outcome of this case.
The parties had organised the care arrangements for X without the necessity for formal court orders. This is to their credit. Whatever differences there may have been between the parties and whatever tensions may have existed between them (and there were many) neither of them have allowed those issues to impact on X’s relationship with each of them.
Because the parties have deemed it appropriate to include material critical of the other, it is appropriate that I mention those disputes in brief form. However, I preface this by acknowledging that X has an appropriate and loving relationship with each of her parents and it is appropriate that she spend time with each of them
The mother for her part is critical of the father. In summary, her criticisms are as follows:-
a)She says that the husband has from time to time been abusive towards her and annexes a number of emails to her affidavit sworn 11 October 2013. Those affidavits speak for themselves and it is clear from time to time the father has been threatening, abusive and difficult to deal with.
b)There is much material devoted to an issue surrounding the piercing of X’s ears and it seems that neither party could agree on the appropriate form of treatment for an infection that X suffered afterwards. Whilst such an issue in the circumstances of this case could hardly be determinative, it is a good example of the symptomatic dysfunction that has existed between the parties. It seems that their joint parenting of X has existed without much cooperation;
c)The mother says that the father is inflexible and rigid in his thinking.
The father makes a number of complaints about the mother:-
a)He says that the mother fails to notify him about important events in X’s life;
b)He says that the mother has been abusive towards him in email communication and cites a number of examples;
c)He says that problems have arisen between the two of them with respect X’s health including one occasion where X broke her arm;
d)he says that X has missed numerous days of school and is failing to perform to an appropriate academic standard.
Again, these issues are relevant to the extent that they evidence the underlying tension between the parties and the caregiving arrangements for X. However as the case proceeded, it became clear that the father would be quite content for X to remain in her mother’s care if she attended the (omitted) School.
Thus it seems that these proceedings really boil down to an issue as to schooling.

The Family Report

Ms M prepared a family report to assist the Court in these proceedings. That report is dated 7 March 2013.
She interviewed each of the parties, the maternal grandmother and Ms J. She also interviewed X and ascertained X’s views. Ms M observed that X has a close and loving relationship with both of her parents.
X was aged 11 years and four months at the time of the report. X told Ms M:-
a)That she wants to go to (omitted) High as “ lots of my friends are going there”;
b)That she said “all the girls” in her class at (omitted) will be attending (omitted) High;
c)She was aware that her father did not approve of (omitted) High but that her mother knew she wanted to go to (omitted) High;
d)That she wanted to live with her mother in the (omitted) area. She said she enjoyed spending time with her father but she did not want to live in Sydney or go to school there;
e)She told Ms M that she missed out on things with her friends because she spent most weekends with her father.
f)She told Ms M that she wanted to make the decisions about when she spent time with her father and did not seem positive about spending time with her father every alternate weekend.
Although X has indicated a wish to decide for herself when she spends time with her father, such a position was not supported by the mother. The mother says that X is too young to be making that decision for herself and therefore she continues to propose orders for X to spend each alternate weekend with her father. This position shows considerable insight on the part of the mother. She has not opportunistically seized upon the position put by the child but rather considered what she believes is in X’s best interests which at this point is to have continuing orders to spend time with her father
This position is also demonstrative of the parties’ differing parenting styles. In stark contrast to the mother’s position, the father continues to propose a two out of three weekend regime for X to spend time with him with little regard for the fact that she is heading into adolescence and wants to have some input into the arrangements and time that she spends with the father.
Ms M said at paragraph 46 of the Family Report:
… as children grow older, the focus of their lives gradually moves from their family to include friends and peers. This is a normal part of development and lays the ground for a child’s growing independence. An arrangement such as that which is presently in place for X can become rather onerous for a child, as they grow older. This is especially so if a parent is unable to be flexible about the child’s parenting arrangements. Mr Hauer appears to have a rather inflexible attitude to X’s parenting arrangement and seems to be very resistant to making any changes in the current arrangements to accommodate X’s changing needs. Given Mr Hauer’s attitude to the issue of X spending fewer weekends with him, it is likely that he will experience difficulties parenting X as she enters adolescence.
Ms M also said at paragraph 49 of the Family Report:
X seems very settled in her mother’s care and she enjoys the time that she spends with her father. She is never been in his full-time care for any time but holiday time. It is difficult to predict how X would adopt [sic] to her father’s parenting style but it seems likely that she may have some difficulties. She has grown up in (omitted) and has access to her extended family while she is there. X clearly feels that it is her home. She expressed a clear wish to remain living with her mother and to attend (omitted) High School. Although X may not yet be even age when her wishes should be the only consideration, her wishes need to be given significant weight. Mr Hauer seems to dismiss X’s wishes as irrelevant.
Ms M also said that would be of some advantage to X to have a cohort of friends attending high school with her and noted that X seemed very positive about attending (omitted) High School.
Ms M expressed a preference for X to remain living with her mother and to attend (omitted) High School.
Ms M noted that the father adopted a rather structured and inflexible view about a number of aspects of life generally. She noted that he wanted X to have a good education however he seems to focus on this aspect of X’s life to the exclusion of her other needs.
Ultimately, Ms M made clear recommendations for X to continue living with her mother and to spend fortnightly overnight time with her father from Friday afternoon until Sunday afternoon.
Ms M gave evidence and was cross-examined. She said and expanding on her written report, that it is very important for a child to have a sense that their wishes, thoughts and opinions were heard and respected. She agreed that orders should be made rather than allowing X to make the decisions for herself. She thought if X was given all of the decision-making process, there was a risk that the relationship with her father could slide away.
She said that by forcing X to do something she is opposed to, namely attending at her father’s for two out of three weekends or living with him, there was a risk that could impact detrimentally on the relationship between father and daughter.
Mr Hauer cross-examined Ms M. He was critical of the mother in that she did not have her partner attend for the report. Besides that criticism, Mr Hauer did not cause Ms M to divert from her original recommendations.
I give significant weight to the evidence of Ms M and her recommendations contained in her report.

The Law

In proceedings for a parenting order, the court may make such parenting order as it thinks proper subject to Part VII, Div 5 of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are as follows:
(1)     The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)     The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
I am satisfied that each of the parties’ proposals will allow X to develop and maintain a “meaningful relationship” with each of her parents. X has an established relationship with her mother and her father and she is of an age where such relationships can be maintained on an alternate fortnightly basis.
Although the parties agree that they will share parental responsibility for X, neither of them has proposed that there be an equal time for X between the two households. In any event, the distance between the two households would make sharing time impractical. The father had said that if the mother moved to within 20 km of his residence, he would like X to spend equal time with each of them on a week about basis. The mother pointed out that she had no intention of moving to Sydney and nor could she afford to do so. This is not a realistic proposal.
When determining what is in the best interests of a child, the Court must consider the considerations set out in s.60CC of the Act. The Court’s consideration of the s.60CC considerations must also be informed by s.60B of the Act.
I will now turn to the section 60CC considerations.
Section 60CC(2)(b) provides that when determining the best interests of a child, a court is required to consider, “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.”
The need to protect a child from the risk of harm needs to be balanced against the consideration that it is in the child’s best interest to have a meaningful relationship with both parents.
Although there have been discourteous and sometimes abusive emails passing between the parents, such discourse has had little if any impact upon the child and her relationships. Although I am concerned as to the way the parties interact with each other and how that might impact on X in the future, these concerns do not impact on the ultimate determination of the issues at hand.
To the extent to that I have not already done so, I now turn to a consideration of the section 60CC (3) considerations.

Subparagraph (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;

I have set out in detail X’s expressed views that she wishes to remain living with her mother and to spend time with her father as she may decide. It is clear from Ms M’s report that X herself was resistant to formal orders even to spend alternate weekly time on the weekends with her father. Ms M however believes that X’s views should be supported but not determinative insofar as she expresses a view as to how much time she should spend with her father. The mother supports that position.

Subparagraph (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);

I have dealt with the nature of the relationship between X, her parents and her extended family in this judgment. Suffice to say that X has an appropriate relationship with each of her parents save that towards the end of the case there was a suggestion that X was reluctant to spend time with the father. In my view that is directly related to the father’s insistence that X bow to his will in terms of schooling and how much time she spends with him. The incident occurred during the hearing where X, upon being required to attend her father’s home, locked herself in a room and refused to attend. The father was very critical of the mother and her failure to secure X’s attendance and also suggesting that she was somehow influencing X in X’s refusal to attend. It would seem incongruous that the mother would adopt such a stance particularly as she had hitherto promoted the relationship between father and child and perhaps, to a lesser extent, that she would choose to do such a thing in the midst of litigation. The father must realise that X is fast becoming a young woman and she will no doubt wish to be involved to a greater extent in the decision making processes as to how she spends her weekends and with whom. The very best that we can hope for for our children is that a significant enough relationship has emerged throughout their young childhoods that they do wish to have us involved in their lives. If X is expressing reluctance to attend, unfortunately in my view, it is likely to be difficulties that X has with her father’s rigidity and inflexibility.

Subparagraph (c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;

In these proceedings I am satisfied that the mother has a willingness to promote the relationship between X and her father.
I am also satisfied that the father understands and values the concept of promoting a meaningful relationship between X and her mother and others, however I am concerned about the father’s capacity to wholly embrace that concept given he is quite critical of the mother as I have said while lacking any real insight into what problems might be.

Subparagraph (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;

I have dealt with this aspect previously in this judgment, however, I note that Ms M indicated that a change of residence for X was not warranted and in fact would not be good for her. She said a change in the frequency upon which X sees her father was warranted because it was in accordance with X’s wishes which should be given significant weight. I also note that X has significant ties to the (omitted) area where she lives with her mother, not the least of which is her relationship with her maternal grandmother and great grandmother and of course with her peers who become so important to children during their adolescence.

Subparagraph(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

There is no practical difficulty or expense with respect to X spending time with and communicating with the father which would substantially affect X’s right to maintain personal relationships and contact with her father on a regular basis.
There was a dispute between the parties as to where changeover should take place, the father suggesting that the mother should be required to drive X to his home rather than having a changeover at the (omitted) Railway Station. I accept the mother’s evidence that she is not a confident driver in the Sydney suburban area and the train presents as a very attractive option to conduct changeovers. In circumstances where the mother expresses a preference to travel on public transport, noting that the mother identified benefits to X and herself in that they were able to pursue their love of reading on the train and also in circumstances where X is fast approaching an age where she will probably be able to catch the train by herself (if her parents deem that appropriate) in my view changeovers should continue to be conducted at the (omitted) Railway station.

Subparagraph (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);
(iii)to provide for the needs of the child, including emotional and intellectual needs;

Under this subparagraph in my view the mother is able to promote all of the needs of X including her emotional, intellectual and academic needs. The father was critical in that he felt that X was not performing to her optimum level academically. However, as Ms M pointed out this is but one part of a child’s life. Even if the father was correct in that regard (and I do not make a finding that he is), the father seems incapable of providing for X’s emotional needs in a way which recognises her development as a young person into an adult.
In terms of X’s academic progress, it is satisfactory and whilst it might have been improved by her attendance at a private school, the realities of the parties’ circumstances make her attendance at a private school impracticable. Further, she wishes to attend (omitted) High School and is enthusiastic about it. Each of X’s parents has the capacity to encourage X to perform to the best of her ability, however, I believe the mother has the greater capacity to promote every facet of X’s life.
I further note the evidence that the father’s partner, Ms B holds a special relationship with X and while she is obviously in a step parental role for her, she is in the unique position in X’s life as a confidant and someone who X can look up.

Subparagraph (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

There are no relevant matters under this subparagraph.

Subparagraph 60CC (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

I have dealt with this subparagraph already in this judgment.

Subparagraph (j) any family violence involving the child or a member of the child’s family;

As referred to above, there are the unfortunate emails and correspondence passing between the parties and the parties’ style of communication is sometimes deficient. Whilst in the strict sense of the definition that would constitute family violence, I find that those issues do not affect my determination in this case.

Subparagraph (k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;

There are no family violence orders.

Subparagraph (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;

These orders will be final orders and as X gets older I would expect that she would have a much greater and significant say in the time she spends with her father. As I have said, I do not believe that a private school is feasible or practicable for this family and for X and I am concerned that if I were able to order that X attend a private school, (which I do not believe I am) the arrangement has the real potential to break down because of financial considerations and affordability. In that sense in my view, (omitted) High School presents the most reasonable and long term option for the conclusion of X’s secondary schooling.

Ancillary matters

The mother seeks an order with respect to dental care and mutual advice provisions with respect to health issues, those orders seem sensible and I shall make those orders.
The father sought an order that the mother be restrained from living outside of the (omitted) area. Clearly he means that the mother be restrained from changing the child’s residence from outside of the (omitted) area. In the circumstances and given the orders that I am making, I am not satisfied that such an order should be made. I do note however, that the mother has agreed to an order for equal shared parental responsibility and I would expect that in the event that there were to be any changes to X’s schooling or her residential address, such matters would be discussed between the parties. If no resolution can be reached either by discussion or mediation, then proceedings unfortunately would need to be issued in this Court. In those circumstances, I am not proposing to make the order sought by the father on the basis. In my view it is not necessary.
In the above circumstances I make the orders as set out herein.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 28 January 2014

[2014] FCCA 506

28 January 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Procedural Fairness