Raymond & Harold
[2009] FamCA 155
•4 March 2009
FAMILY COURT OF AUSTRALIA
| RAYMOND & HAROLD | [2009] FamCA 155 |
| FAMILY LAW – CHILDREN – Child and parenting orders – Best interests of the child – Sole parenting responsibility or equal shared parental responsibility – Time spent and communication orders – Schooling – Change of surname – Family violence – Orders of State Magistrates Court |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DA Evidence Act 1995 (Cth) s140 Crimes (Family Violence) Act 1987 (Vic) Family Violence Protection Act 2008 (Vic) |
| Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| APPLICANT: | MR RAYMOND |
| RESPONDENT: | MS HAROLD |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 3001 | of | 2006 |
| DATE DELIVERED: | 4 MARCH 2009 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 4, 5 & 6 FEBRUARY 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | IN PERSON |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | IN PERSON |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | MRS. HOOPER |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | DONALD LAMPE |
TABLE OF CONTENTS
MR RAYMOND
REASONS FOR JUDGMENT
ISSUES
APPLICATIONS - ORDERS SOUGHT BY FATHER AND MOTHER
ORDERS SOUGHT - INDEPENDENT CHILDREN'S LAWYER
AFFIDAVITS
PREVIOUS ORDERS
BACKGROUND FACTS
LITIGANTS IN PERSON
OBSERVATION OF WITNESSES
STANDARD OF PROOF
FAMILY LAW ACT
SECTION 60CC CONSIDERATIONS
THE FATHER
FATHER’S AFFIDAVIT
THE MOTHER
MOTHER’S AFFIDAVIT
THE CHILD
FAMILY CONSULTANTS
STATE MAGISTRATES COURT – FAMILY VIOLENCE LEGISLATION
FAMILY INTERVENTION ORDERS
BEST INTERESTS OF THE CHILD - s60CC
TIME SPENT AND COMMUNICATION ORDERS
SCHOOLING
CHANGE OF SURNAME
COMMUNICATION BOOK
CHANGEOVER VENUE
CONCLUSION
ORDERS
THAT all previous child and parenting orders be discharged.
THAT the father and mother (“the parents”) have the equal shared parental responsibility for the child of their relationship S born … November 2002 (“the child”).
THAT the child live with the mother.
THAT the child spend time and communicate with the father as follows:-
a.on each alternate weekend from the conclusion of his school on a Friday until the commencement of school on Monday morning or, if that day is a gazetted public holiday or a day when school classes are not scheduled, then until the commencement of school on Tuesday morning.
b.in each other week:-
i)for first term 2009 from the commencement of school on Monday morning until the commencement of school on Tuesday morning; and
ii)from second term 2009 from the commencement of school Monday morning until the commencement of school on Wednesday morning.
c.on Father’s Day in each year, and if it should fall on the weekend when the child is not spending time with his father, then from 9.00 a.m. on that Sunday until the commencement of school the following morning.
d.in the event that Mother’s Day should fall on a weekend when the child is spending time with his father then he is to be returned to his mother at 9.00 a.m. on that Sunday and remain with her until the commencement of school the following morning.
e.for one half of each of the term school holiday periods commencing Term 1, 2009 at dates and times to be agreed upon in writing forty-two (42) days in advance between the parents or failing such written agreement as follows:-
i.in even numbered years for the first half of term school holidays to commence at the conclusion of classes on the last day of school and to conclude at 5.00 p.m. on the day which is the mid point of the total number of days of such holidays, and in each alternate year thereafter;
ii.in each odd numbered year, and alternate years thereafter, for the second half of school term holidays to commence at 5.00 p.m. on the mid point day of the total number of days of such holidays and to conclude at the commencement of school on the first school day of the following term.
f.in each calendar year from 9.00 a.m. Boxing Day, 26 December, until 9.00 a.m. 28 December (and with the mother to have in each calendar year the period 9.00 a.m. 24 December until 9.00 a.m. 26 December, inclusive).
g.in the 2009/2010 long summer holidays for a period of sixteen (16) days commencing 9.00 a.m. Monday 11 January and concluding 9.00 a.m. Wednesday 27 January (and, subject to paragraph (f) herewith the mother to have the balance of all other days of these long holidays).
h.from the 2010/2011, and thereafter unless varied by the prior written agreement of the parents, long summer holidays for a period of eighteen (18) days commencing on 9 January and concluding at 9.00 a.m. on 27 January inclusive.
i.on the child’s birthday, … November, he is to spend a period of two (2) hours between 4.00 p.m. and 6.00 p.m. with the parent with whom he is not residing with on that day.
j.when the birthday of either parent occurs on a day when the child is with the other parent, then for a period of two (2) hours at times to be arranged in writing or by e-mail between the parents or, if in default of agreement, between 4.00 p.m. and 6.00 p.m. on that day.
k.for such other times as the parents may be able to agree on.
THAT the alternate weekend time spent with periods as provided for in paragraphs 4(a) and 4(b) hereof are to be suspended during all school holidays and are then to recommence immediately upon the resumption of school and in the continuing order of what alternate weekend timetable existed at the time of this suspension for holiday purposes.
THAT the parents are to establish and support meaningful telephone communications between the child and the parent with whom he is then not spending time on each Saturday between 6.00 p.m. and 7.00 p.m., and twice weekly at that time period during all periods of school holidays.
THAT the parents use a communication book or email for all discussion, notification and advice of medical, education and personal notes concerning the child and exchange that book regularly.
THAT the changeover venue on all occasions during school terms are to occur at the child’s school and otherwise in school holidays at the McDonalds store at E and the parents are to be punctual and polite in their attendance at the times specified for changeover in these orders.
THAT if either parent is unable to attend at changeover then they may nominate an adult, known to the child, to attend on their behalf to collect or return the child at the McDonald’s store.
THAT the child is to retain the name and remain known under his registered birth name, S RAYMOND, and he is to be enrolled at school and at all other events by that name and the, mother her servants and agents, are restrained from any change of surname or substitution of any other given name for the child.
THAT any new passport for the child issue in the name of S RAYMOND.
THAT the child continue his primary education at K Primary School and both parents be and are hereby injuncted from removing the child from attendance at that school unless they are in full agreement or by Court order.
THAT if either parent is to change their residential address and move to a location outside of the zone established for the K Primary School they are to give the other party no less than forty two (42) days prior written notice together with a full explanation for the reasons for such change of address and every effort is made to continue the child’s schooling at K Primary School.
THAT the parents are to keep each other advised of any illness or injury sustained by the child whilst in their care and provide full particulars of any treatment received or required by him together with the name and contact details of any medical provider.
THAT both parents are restrained from taking or permitting the child to be seen by any treating health professional, save for any medical emergency or routine illness without the prior written agreement of the other party or Court order.
THAT the parents keep each other advised (punctually) of any change of residential address, telephone number or email address.
THAT the father, at his expense, provide a mobile telephone and number to the child which he is able to use to contact both of his parents as he may choose so to do.
THAT a sealed copy of this order be forthwith served by the solicitor for the father upon the Principal of K Primary School, or such other school the child may hereafter attend.
THAT the K School, or such other school the child may hereafter attend, be requested to provide to both parents copies of all school reports, newsletters and other available information prepared for parents.
THAT both parents be restrained from:-
a.discussing the Family court proceedings with the child; and
b.from denigrating the other parent or members of the other family in the presence or the hearing of the child.
THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.
THAT all other orders sought by the father in his application for orders filed 5 December 2008 and likewise the further orders sought by the mother in her amended response filed 20 January 2009 be otherwise dismissed and all proceedings be removed from the list of cases awaiting hearing in the docket of the Honourable Justice Young.
THAT pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Raymond & Harold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3001 of 2006
| MR RAYMOND |
Applicant Father
And
| MS HAROLD |
Respondent Mother
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
ISSUES
The mother and father are before the court for a determination of parental responsibility and the extent of time that the father should spend with their son S who is 6 years of age. There are many accompanying specific issues including a request by the mother to change the child’s school and surname and unfortunately with a background history of family violence and limited parental communication.
APPLICATIONS - ORDERS SOUGHT BY FATHER AND MOTHER
The father is applicant and his initiating application for final orders was filed 20 October 2006. Therein he sought, in summary, an order for shared parental responsibility for the child on the basis that he lives with the mother and shares time with his parents as detailed in that document.
The mother's response was filed 22 November 2006 and she then concurred with the order sought by the father that the parents have equal shared parental responsibility for all decisions to be made of and concerning the welfare and development of the child. She proposed that their son live with her but that he spend time with and communicate with the father on overnight, weekend and holiday times as she identified in very significant detail in that response.
As a matter of some significance, the issues of the school at which the child should commence and any change of his surname were not then raised by either party. I do not propose to detail all of the particular orders which were sought in earlier applications and responses filed in this matter, and specifically I leave wholly to one side the various documents filed in the costs issue between the mother and her former solicitor.
A document that is however of importance is the further response filed by the mother on 4 July 2007 (document 6 in the Court Index) wherein she reconfirmed the position of the parents having equal shared parental responsibility for decision‑making in respect of the child and otherwise further refined the periods of time that she preferred the child to spend which his father. There were again other substantial specific and related orders sought by the mother but none of those go to the issue of the child's surname or of future schooling arrangements.
By her further amended response filed 10 July 2008 (document 31 in the Court Index) the mother sought for the first time a sole parental responsibility order, though the extended time she there offered to the father was more extensive than that upon which she conducted her case in this hearing.
Pursuant to case management directions the parties have now filed the specific orders that they seek in these defended proceedings. The father's orders are contained in a document filed 5 September 2008 (document 40 in the court index) and in summary the orders upon which his case proceeded were as follows:
i)that all previous parenting orders be discharged;
ii)that the mother and father have equal shared parental responsibility for the child;
iii)that the child live with the mother;
iv)that he spend time with and communicate with the father on alternate weekends, and on other week days, special occasions and during holidays in the specific manner as outlined in those orders;
v)for changeover to occur primarily at school or otherwise at the main entrance of the McDonald's store, E;
vi)that for his primary education the child continue his enrolment and attendance at K Primary School and the parents be each restrained from changing that school or the child's place of residence without prior written agreement or order of the court.
The mother's response to those orders and her final summary of orders sought in these defended proceedings was filed 20 January 2009 (document 36 in the Court Index). The mother sought orders that were significantly different from those that previously had been pronounced by the court or as had been sought by the father. In summary, the mother sought:
i)sole parental responsibility for the child;
ii)that the child lives with her;
iii)that the child spent time with and communicate with the father on a more limited weekday and extended alternate weekends, special occasions and holiday basis, as elaborated upon in paragraphs 4 – 13 (inclusive) of that amended response;
iv)that the surname of the child be changed from Raymond to Harold;
v)that the child be raised as a Catholic and attend only schools within the Catholic school system for both primary and secondary education, and that he be now removed from K Primary School and attend a further, but yet not ascertained, school.
ORDERS SOUGHT - INDEPENDENT CHILDREN'S LAWYER
Mrs Hooper of counsel appeared for the Independent Children's Lawyer. Her solicitors had not filed a specific document of their recommended orders but, at the commencement of the case, the support of the Independent Children's Lawyer for the orders sought by the father and his proposals was made very clear to the court. Specifically, they endorsed the retention of equal shared parental responsibility and identified the best interests of the child to be that his father should spend, in any fortnight, five (5) nights, with the child. They supported a shared school holiday arrangement and specifically submitted that the child retain the surname of Raymond and continue his primary education at his current school.
A further issue that has occupied considerable time and emotion in this case is the changeover venue on non-school days. The father seeks a continuation at the McDonald's store at E but the mother very strongly requires the changeover to be at or inside of the K police station. Whilst other options such as contact centres in distant suburbs or independent privately paid carers were floated without any evidence by the mother, they are both impractical and have not received any support from the father or the Independent Children's Lawyer. I have not considered those other options. The final submission of the Independent Children's Lawyer strongly supported any non-school changeover to be at the McDonald's store on the basis that it is a public place, with security cameras and a reasonable child friendly atmosphere. The police station was said to be a totally inappropriate venue.
There remains little or no agreement between all parties to these proceedings as to the specific "time spent with" and communication orders as between the child and his father, and I will detail reasons hereafter and provide orders that I have concluded to be in the child’s best interests.
The one specific matter of agreement is that in each year the child will be with his mother from 9.00 a.m. on Christmas Eve until 9.00 a.m. Boxing Day, 26 December, and thereafter be collected by and spend time with his father for the equivalent 48-hour period concluding at 9.00 a.m. on 28 December.
AFFIDAVITS
Since the proceedings commenced in this matter in October 2006 there have been numerous interim hearings and case management mentions before the Federal Magistrates Court or Registrars of this Court. The parties have filed various affidavits, though they have not called any other family or independent witnesses to give evidence to the court. The parties both presented their case to the court that the most recent and consolidated affidavit of each of them should be read and relied upon by the court and the earlier material only to the extent that it was touched upon in cross‑examination or submissions or otherwise where identified on a particular issue.
I have accordingly therefore carefully read and evaluated the father's affidavit (number 35 in the Court Index) and sworn 22 December 2008 and his Form 13 financial statement filed 22 January 2009. As to the mother, her primary affidavit relied upon (numbered 37 in the Court Index) was filed 20 January 2009 and I have read that document and its various exhibits. Her Form 13 financial statement was filed 2 February 2009.
Additionally the mother filed two notices to admit facts and authenticity of documents. They were each filed 20 January 2009 and are numbered 37A and 37B in the Court Index. The notices were directed to the father and to the Independent Children's Lawyer and there are various annexures attached to both documents.
At the case management hearing which I conducted on 22 January 2009 I required a response to be filed to each of those notices and accordingly there was filed by both the father and the Independent Children's Lawyer either a denial or, to some matters, a partial or full admission of matters and facts put in issue by the mother. I record that I have read the documents and the exhibits of the mother in that regard, and of the responses thereto. Some of the annexed documents were not properly before the court and were not addressed in evidence or relied upon. Clearly there could or should have been further witnesses, such as from the primary school or the general practitioner for the mother and the child, who could have given evidence but that was never sought nor made available to the court.
PREVIOUS ORDERS
The two previous orders of this court that are important to understand the current child and parenting orders are as follows:
(a)the orders of Senior Registrar Fitzgibbon pronounced 22 October 2007 and the accompanying reasons for judgment; and
(b)the consent orders pronounced by Her Honour Justice Brown on 30 November 2007 and in summary those orders to which the parents agreed provided that:
§the child live with the mother;
§the mother and father have equal shared parental responsibility;
§the father spend time with and communicate with the child on each alternate weekend, for one half of school term holidays and on other special occasions;
§the parents attend a counsellor to assist them to harmonise their routines with the child in respect of their households;
§the child be enrolled in 2008 and thereafter at K Primary School.
I have given substantial weight to that consent order where the parents were represented and where they have largely followed its terms.
BACKGROUND FACTS
The applicant father was born in February 1964 and is 45 years of age.
The respondent mother was born in February 1964 and is also 45 years of age.
There was one child of their relationship, S, born in November 2002 and now 6 years and 3 months of age.
The mother and father (“the parents”) commenced a relationship in 1999 and separated on 17 March 2002. They resumed cohabitation a few months thereafter when it was discovered that the mother was pregnant. Final separation occurred in December 2003 when the child had just turned one year old.
Neither parent has re-partnered and each of them live in rented accommodation in D.
LITIGANTS IN PERSON
The decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC ¶93-072, modified the guidelines to be used in proceedings where litigants appear without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC ¶92-764.
Those Guidelines are explained by the Full Court to be as follows:
(a)a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
(b)a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
(c)a judge should explain to the litigant in person any procedures relevant to the litigation;
(d)a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
(e)if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
(f)a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
(g)if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
(h)a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
(i)where the interests of justice and the circumstances of the case require it, a judge may:
§draw attention to the law applied by the court in determining issues before it;
§question witnesses;
§identify applications or submissions which ought to be put to the Court;
§suggest procedural steps that may be taken by a party;
§clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
The Full Court in Re F: Litigants in Person Guidelines (supra), after stating that the skill set of each individual litigant in person could vary greatly, further held at paragraph 229 that:
“With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case”
The Full Court had earlier said at paragraph 225:
"…we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation."
This decision in Re F: Litigants in Person Guidelines (supra) has been affirmed and followed in subsequent decisions of the Full Court and in particular the Full Court in Dobbs & Brayson (No 2) (2007) FLC ¶93-354 at 82,076 upheld its applicability to Less Adversarial Trials under Division 12A:
“These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A. “
I have endeavoured to ensure that both the father and mother have at all times been accorded procedural fairness and had a proper understanding of the procedures of trial and their rights in conducting their own case. I am satisfied that they both had a very substantial knowledge of all matters and facts and each of them were certainly firm and positive in the way they presented submissions to the court and asked questions of each other. They had each prepared written questions and were both able to explain their orders sought and factual basis relied upon and also to answer questions of the court. The mother’s affidavit and each of the Notices to Admit were drafted in an extensive style and format that would clearly suggest that she had some real pro bono legal assistance available to her in the preparation stage of her case.
OBSERVATION OF WITNESSES
I have had the very real benefit of observing the father and mother in giving their evidence on oath and in observing them in the courtroom. Those observations have been of assistance to me in formulating appropriate orders and are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other documents in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment.
In Zantiotis and Zantiotis (1993) 92-367 the Full Court of Nygh, Lindenmayer and Gun JJ in a joint judgment, said at 79,837-79,838:
The headnote also says that the Court of Appeal followed the South Australian cases of Minagall v Ayres [1966] SASR 151 at 156, Jobst v Inglis (1986) 41 SASR 399 at 417 and Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-179. In the last mentioned case King J. said at pp. 178-179:
“The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the Court in Jobst v Inglis, is expressed in a passage in the judgment of Napier CJ, with whom Travers J agreed, at 156 of the report. It is as follows:
‘But, while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as "fair play and common sense". The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.’
The rule, as appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness-box. Something will depend, no doubt, on the circumstances of the particular case and upon the significance of the particular observations. It is clear, however, that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.''
The unique role and observations of a trial Judge have recently been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC) [2005] UKHL 40 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter or allegation was, or its importance in this case, then I have more strictly examined the level of proof required.
S.140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”.
A more recent discussion of the standard of proof to be applied in non-criminal proceedings is contained in the Judgment of Lord Nicholls in Re H v Ors (Sexual Abuse: Standard of Proof) [1996] 1 ALL ER 1 at 16 where His Lordship stated:
“Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established”.
The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454).
The law requires that satisfaction be on a level of probability not certainty. I approached the determination of issues of proof on the basis that I can be fairly and properly satisfied of any alleged fact before accepting same. Conjecture or suspicion is not sufficient as the proof of the fact must be both rational and reasonably open and likely.
FAMILY LAW ACT
Section 60CA of the Family Law Act 1975 requires the court, in deciding whether to make a particular parenting order in relation to a child, to have regard to the best interests of the child as the paramount consideration.
The objects of and principals underlying Division 7 of the Act and its amendments from 1 July 2006 are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders.
It is important for the mother and father to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act. The objects are there stated to be:
(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.
Sub-paragraph (2) thereof highlights the principles underlying those objects which are:
(a)children to have the right to know and be cared for by both 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.
I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case partly nullify those objects and principles. The mother and father do not have a meaningful and co-operative relationship for the various reasons that I have explored in this Judgment. Ideally, as parents, they should be more understanding and co-operative with each other and it would be very helpful if they each reflected upon and acted more positively to perform their primary obligations to the child.
Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s61B. The specific sub-section provides as follows:
(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.
The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(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.
It is therefore necessary to evaluate, on all of the evidence in this case, whether sole or equal shared parental responsibility is an outcome that is in the best interests of the child. Given the conflicting applications and the presence of family violence as recorded in the recently granted State Magistrates intervention order I have approached this case on the basis of a full evaluation of all of the evidence and a proper determination of the best interests of the child and that specifically includes a determination of whether there should be an order for sole or equal shared parental responsibility. I have not applied the presumption of equal shared parental responsibility.
PARENTAL RESPONSIBILITY – CASE LAW
Crispen and Crispen [2008] FamCAFC 14 was a Full Court appeal from the decision of the Magistrate’s Court of Western Australia to rebut the presumption of equal shared parental responsibility and vest the mother solely with the responsibility for making all major long term decisions. The father was to have responsibility for day to day decisions of the child whilst she was in his care. The parenting orders made provided that the child spend 4 nights per fortnight with the father and the rest of the time live with the mother.
In that case the Magistrate held that the presumption in s 61DA had not been rebutted but should not apply on the basis that (at paragraph 25) “there was an inability of the parties to effectively communicate and that there was obsessional conduct on the part of the father”, and that furthermore there were other factors leading to the conclusion that it was not in the best interests of the child that there be equal shared parental responsibility notwithstanding that it would be in the child’s best interest to spend substantial and significant time with both parents. The Full Court did not disturb the findings or orders of the Magistrate and therefore dismissed the appeal.
In another recent case the Full Court allowed an appeal from a judge at first instance in Newlands & Newlands (2007) 37 Fam LR 103 ordering that the matter be remitted for a rehearing of parenting issues. The trial judge ordered the parties to have equal shared parental responsibility save in respect of education over which the wife was to exercise parental responsibility solely. The Full Court, in discussing the trial Judge’s rebuttal of the presumption of equal shared parental responsibility commented upon the provisions in the legislation for the allocation of responsibility noting that such an order was permissible under the Act, but holding that it was not an option for the trial judge given that it had been proposed by neither party. The Full Court expanded on the change of terminology in the Act at paragraphs 86-88 inclusive referring to what was said by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraphs 9.29-9.30:
9.29“In the absence of a specific issues order, we think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day to day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.
9.30 As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation”.
In addition Newlands referred to the judgment in Goode v Goode (2006) FLC 93-286 where the Full Court at 80,894 commented upon those paragraphs from B and B saying:
35.“Whilst we consider this is still a correct description of the concomitance of parental responsibility where no order has been made by a court, we do not think in light of the amending legislation it has application once an order for equal shared parental responsibility is made by the Court. This is made clear by the provisions of ss 61C, 61D and 61DA.
36.While it may be self-evident from the provisions of s 61C, note 1 makes it clear that the legal position prevails only to the extent it is not displaced by a parenting order made by the Court. Note 1 states:
This section states that the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and section 61D(2) for the effect of a parenting order.
37.Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
38.Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. The section requires decisions about major long-term issues about children to be made jointly by those persons who are to share parental responsibility and that they are required:
(a)to consult the other person in relation to the decisions to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Section 65DAE provides that if a child is spending time with a person under a parenting order, then that person is not required to consult with a parent or other person who shares parental responsibility about decisions that are not major long-term issues, unless the Court has made a contrary order.
39.We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides”.
These comments made by the Full Court on what is intended by the term “equal shared parental responsibility” are illustrative for the purposes of this decision insofar as they demonstrate that what is required by the Act is that there be a level of co-operation and communication in coming together equally to make decisions in respect of the long term care of the children. This is a process which would be unworkable in a relationship with high levels of conflict and where one parent sought to usurp at every opportunity the authority and decision making capacity of the other. The facts of this case however highlight that on many, but not all, issues the parents can and have co-operated and I have carefully further assessed these issues in my judgment.
A recent reported decision from the Full Court in Chappell & Chappell (2008) FLC 93-382 further examined parental responsibility and in the context of providing as much degree of certainty as is practicable, and thereby reducing any ambiguity the Full Court said at paragraph 69:
“It is clearly imperative that orders relating to parental responsibility should be accompanied by as little ambiguity as practicable. This is especially so given the extent to which third parties such as schools and hospitals rely upon court orders to satisfy themselves about the authority of parents to make decisions about their children. It could not be expected that third parties would be required to pursue the reasons for decision of a judicial officer in order to assist them to understand forms of words used in court orders …”.
The direction of the Full Court is for judges to pronounce orders incorporating the terms and language found within the Act and certainly not make other orders founded upon “nebulous concepts”, such as particular management issues in respect of an aspect of any child’s health, education or the like.
In summary the issue of parental responsibility to be carefully evaluated and determined in this case, where the presumption of equal shared parental responsibility does not apply because of issues of family violence which are hereafter considered in detail is whether, in the best interests of S, should the mother be awarded sole parental responsibility or otherwise should the parents have equal shared parental responsibility.
SECTION 60CC CONSIDERATIONS
How the court determines what is in the best interests of a child is prescribed by s60CC of the Family Law Act 1975 and there are both primary and additional considerations that must and have been considered.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The relevant additional considerations must be considered within the framework that these parents have significantly resolved the issues of with whom S is to live and largely what time he is to spend with and communicate with his father. Within that framework and having regard to the specific issues remaining before the court the additional relevant considerations that I have considered and assessed in determining the best interests of S are:
(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;
(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);
(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;
(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;
(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);
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Thereafter sub-section (4) of s60CC is relevant because of the additional considerations identified in sub-paragraph (3)(c) and (3)(i) and an examination is therefore required of the role that both parents have undertaken and fulfilled for the child and specifically in the context of their separation and circumstances that have existed since that date are made relevant by s4A.
It is to better understand the post separation events that the parties have filed further affidavits and I have separately evaluated their evidence in that regard. Likewise the professional evidence of a psychological nature from the Family Consultant has considered these post separation events and conduct within the parameter of what is best for S and related to the proper parental responsibility order.
THE FATHER
The father is 45 years of age. He worked originally as a farmer and came from rural Victoria. He now works in the financial sector and has established his own business, R Business, which operates from rented premises near the city. He employs a part‑time staff of five. His business was first established in 2000 but more firmly established and developed from approximately 2002. His profit from the business is approximately $104,000 per annum and thus he declares an income of some $2,000 per week. His business mainly provides services to families, small businesses and self-managed superannuation funds.
The father's evidence is that his hours of work and responsibilities are flexible and his business, for he and his staff, is very family orientated. I accept that evidence. He has no other source of income, and he currently pays $200 a week to the mother for the child and pays school fees and other school, lifestyle and sporting expenses for his son on an informal basis. There is no current child support assessment. Notwithstanding he is employed in the financial sector and has a very clear and specific understanding of his obligations for lodgement of taxation returns he was substantially in arrears and he has only recently filed the last three financial year taxation returns, thus he has now filed up to 30 June 2008.
The father described his health as being very good and rejected the allegations made by the mother as to his state of mental health, alcoholism or other ailments. He certainly presented as a quite fit and active individual and at various times the evidence disclosed that he played tennis and basketball regularly, has a personal trainer two days a week and enjoys other sport and leisure activities. The mother did make some complaint of a past heart ailment from which the father had suffered but there is no real evidence before the court and the father’s explanation of this incident seemed appropriate but more particularly had caused him no ongoing discomfort or disability. He has no other personal relationship and thus his life revolves around his work, his lifestyle and the child. I accept his evidence on this health issue.
The father is a non-practising Anglican. He does not oppose the Catholic education but certainly wholly rejected the mother's evidence that she is a devout or practising Catholic. He strongly opposed any change of the surname of the child from Raymond to Harold or any combined surname and wants the child to remain at K Primary School, at least for the foreseeable years ahead.
Notwithstanding the recent pronouncement of the family intervention order, the evidence of the father to this court is that there was and never had been any need for such an order. He continued to dispute the factual basis on which it was granted and rejected the various allegations made by the mother. More particularly he asserted that there has never been any violence or improper behaviour shown directly by him to the child, and he continued to wholly reject a need or any reason for the inclusion of the child on that intervention order as the identified second aggrieved person. I have hereafter set out the appropriate State legislation, both the provisions of the prior Act and the recently commenced legislation and that both explains and directs the court to include a child in required circumstances. Whilst the current order has been extended to also injunct the behaviour of the mother in the presence of the child it is clear that the father does not have a proper understanding of the need for the order and more particularly of the necessity for he and the mother to behave in a civil and proper manner, and without violence and abuse in the presence of the child. As critical as I am of the father I balance however the fact that the order was extended to include the mother.
The father stated that he and the child have a very close relationship. They enjoy their time together and that clearly is consistent with all of the evidence in this case. He acknowledged that the mother is very loving and supportive of the child and he has structured the orders sought by him on the basis of equal shared parental responsibility but with the child to live with his mother. Very much the substantial issues in this case are and have been parental responsibility and the amount of further time which the child should spend with his father and the particular circumstances of changeover and other specific issues.
The previous orders of this court highlight that the father has always enjoyed time with his son. A reading of earlier orders and the family consultants’ reports highlight that it has always been the quantum of such time and the related circumstances and contact between the parents that has resulted in conflict and real difficulties. What is apparent and I accept is that these parents do not properly communicate, discuss issues concerning the child, or more particularly make any concessions on any part of the collection, delivery or duration of time spent issues. I am comfortable in concluding a finding that both parents primarily are self interested and concerned for themselves or otherwise to deprive and make more difficult the day to day life of the other in the context of the child and changeover. The mere fact that they previously rejected parental counselling highlights that they each have a limited understanding of their role and duties are parents and, looking ahead, unless change occurs, there may be little light at the end of the tunnel as regards to their conduct and behaviour to each other. As to the father it is evident that he lacks a proper level of understanding of his actions and certainly there were occasions where the evidence highlighted that he acted in an inflammatory and intimidatory manner towards the mother. On many occasions he brought upon himself issues and conflict and certainly in that regard he is both insensitive and somewhat immature. Whilst I am critical of the father I nevertheless emphasise that my criticism of both parents is balanced within the framework of understanding and implementing parental responsibility decisions and communication with the other.
The father sought five nights in each fortnight, together with school holiday periods and other specific occasions. He rejected a single block of time in each fortnight, such as the mother offered four consecutive nights (Thursday – Sunday) each fortnight. He emphasised the regularity of time that he needed to spend with the child and the benefit to the child of regular and meaningful overnight contact occasions each week. This situation was supported by the Family Consultant.
There are various special occasions such as Mother's Day, Father's Day, religious days of significance to the mother, birthdays and other occasions that both parents wanted to claim but they are wholly unable to agree to accommodate the other or to manage changeover away from the school. I have been asked to provide orders that accommodate all eventualities. That is both a difficult task and subject to the personality and ongoing conflict and emotional difficulties of the parents.
FATHER’S AFFIDAVIT
The former solicitors for the father, before ceasing to act in the proceedings, drafted a substantial affidavit which provided a helpful insight into the prior history and relationship of the parents. I have read and evaluated that affidavit.
The overview of the affidavit is that it highlights the ongoing father and son relationship, punctuated by disputes and family violence between the parents but otherwise emphasised the continuing frustration and difficulty that both parents had in resolving differences or in placing the child’s interests and priorities as a first concern.
I have read and I accept that on occasions the Independent Children’s Lawyer was approached for input or otherwise involved in determining changeover circumstances and the operation of the past order or agreement between the parties. I accept, as a result of this affidavit that a significant degree of certainty and lack of flexibility is required in orders so that they would operate for the best interests of the child.
I record that the parties have attended a number of counselling and mediation sessions, as identified in paragraph 26 of that affidavit, and I can understand that these parties would not make concessions and would not or could not agree on practical or common sense outcomes. That is most unfortunate for the child.
I accept the evidence of the father in paragraph 24 as to his denial of any attempted suicide.
I accept that the father on all occasions properly supervised or arranged appropriate care for the child and I can see no basis that it could be suggested that the child would be at physical or emotional risk when alone in the company of his father.
Very much the direction of that affidavit was to minimise the time and contact that the parents spend together and that is encapsulated in paragraphs 32 and 33 of the affidavit and is in accord with the evidence of the Family Consultant and the outcome that I intend by the orders that I have pronounced in this matter.
I record that the father’s affidavit was filed several weeks prior to the mother filing her affidavit and thus there was no formal opportunity for the father to respond in written form to the many issues and allegations raised by the mother in her affidavit. I have adjusted for that fact in my evaluation of the evidence and the determination of appropriate children and parenting orders.
THE MOTHER
The mother lives in rented premises in D. Her rent is $300 per week and she has lived in that home for three years. There is said by her to be a very real issue that the owner intends to sell and then develop the property, and she will be required to vacate that home. Originally she had a six-month lease of the premises but is now only a monthly tenancy. Having read the extempore reasons for judgment from Senior Registrar Fitzgibbon it is clear that that same scenario previously concerned the mother in or about October 2007. If required to vacate her home, very much her concern as expressed to the court is that she will not be able to afford inner city rental accommodation and may be forced to live in the outer suburban area. Of significance is that she owns a property in C, valued at approximately $380,000 and encumbered by a bank mortgage of $160,000 and which is presently tenanted on a six-month lease basis at a rental of $280 per week.
The mother has a Bachelor of Business Marketing degree from Monash University and gave her occupation as a Marketing Manager and she works on a casual basis, when work is available. She stated that her income for any full day is approximately $500 but that it must be aggregated over various days or weeks. Otherwise she has the rental income from her C home, $200 per week paid by the father, a Centrelink and family allowance benefit of $460 a week, inclusive of the child, and work income which she said is averaged at approximately $300 per week. In her recently filed financial statement she deposed her income to be $1,240 per week.
Her estimate of expenses is very general and unhelpful but she asserts that she spends, on herself and the child S, approximately $140 per week more than she receives, including expenditure of $360 per week on the child. She does hold two cash trust accounts for the child of approximately $60,000.
I have provided some financial background for both mother and father only as a basis of a wider understanding of their financial and domestic circumstances but most certainly there are no property or financial proceedings between this unmarried couple now before any court.
The mother is largely estranged from her extended family. Her father lives in northern New South Wales and there is but limited contact. She has no contact with her three siblings and thus the child has no real contact with the extended maternal family.
The mother described her physical health as good, though the cross‑examination of her by counsel for the Independent Children's Lawyer and medical records and documents subpoenaed to court most certainly do reveal matters of very considerable importance that she had elected not to place before the court. The mother was most certainly selective in her disclosure of matters of serious issue on her mental and emotional state of health and past treatment and ongoing medication.
In her Notices to Admit certain facts, the mother selectively annexed letters from her general practitioner, Dr N of E Medical Centre. Those documents from that medical centre, including from Dr L, do disclose her longstanding history of circumstantial anxiety and its treatment. There is reference to a full mental examination which then revealed only mild insomnia and occasional anxiety attacks. The letter clearly but carefully highlighted that there was no past history of admission to any psychiatric facility and concluded, in the opinion of that doctor which was never able to be tested before the court, that she was fit to be a carer and a parent.
There was further annexed a more updated letter dated 16 September 2008 from Dr N which was directed towards the necessity to reduce the conflict and tension on changeovers but the purpose or extent of that letter was most likely for the Magistrates Court's hearing of the intervention order.
What was not fully before the court was that in April of 2006 Dr N organised for the mother to attend upon Dr J for an opinion and management of her psychiatric state. The referral letter identifies the issue as:
"The mother suffers from depression and anxiety. She has always been a worrier. She has had two clear episodes of depression, the most recent lasting for 12 months. I put her on Cipramil and initially she did well. Recently she has had more difficulty, especially with sleeping. She increased her Cipramil but found that whilst she slept better, she was more anxious during the day. She identifies three main problems - grief over her mother's death, real difficulties with her ex, and the difficulties of living with her three‑year‑old. In addition I think drinking is an intermittent problem."
In the subpoenaed documents to court from her general practitioner was contained the psychiatrist's report dated 16 October 2006 and there are a number of serious and relevant issues raised therein.
Dr J saw the mother seven times between April and June of 2006. At that time her statement of history highlighted that she was not working and living off savings and a pension. She belonged to local single parent groups but had little social contact with former friends. She provided a time line of her former depressive episodes and treatment, and she listed major psychosocial stressors in 10 of the past 16 years and in consecutive years since 1999 which included retrenchments, major sporting injuries and relationship difficulties. She had received counselling on eight occasions.
The history of the mother as provided by her recorded that she had been treated with antidepressant medication for six months in 1999 and again in 2005. She suffered panic attacks triggered by arguments with the father and she would manage her feelings of helplessness or an inability to cope by resorting to alcohol or by going to bed.
In mid-2006 the mother said that she consumed approximately 35 standard alcohol drinks in a week and had been doing so for the past few years, she was smoking in excess of a packet of cigarettes a day and drinking up to seven cups of coffee. She had recently used cocaine but that was said by her not to be a normal or ongoing part of her lifestyle.
Her family history highlights an upbringing inclusive of alcoholic abuse and violence. Her father suffered anxiety and depression and had been both imprisoned and spent time in a psychiatric Hospital.
Dr J’s assessment was one of major depression in partial remission and hazardous drinking. He recommended a change in her medication, which seemingly was successful. There were lengthy discussion and counselling between Dr J and the mother, and that seemingly led to her expressing a level of dissatisfaction about the time taken to develop the background and history and also the relevance of questions and the cost charged to her. It seemed that at or about that time she declared to her general practitioner and presumably to Dr J that she did not feel comfortable with him and had no confidence in him. From the report it is evident that other professional colleagues of Dr J declined to take on the mother's case.
Subsequent to 30 June 2006 there was a further telephone conversation and then an appointment rearranged between Dr J and the mother, and at that time there was a disclosure of her increased drinking of alcohol, 10 light beers a day three to four days a week and beers on other days. She drank between 11.00 a.m. and 2.00 p.m., and thereafter collected the child from child care. She was given appropriate advice about drink drinking and exceeding the legal blood alcohol level.
Seemingly therefore the mother has been on anxiety or antidepressant medication for a very long and continuous period. Her evidence to the court is that she now prescribes and takes Valium, five mil, two times a day though, if required, sometimes three tablets a day. She admitted consuming alcohol with her Valium medication and said that she was allowed to combine both substances and, as a matter of real concern to the court added that “they work well together”.
In cross‑examination by counsel for the Independent Children's Lawyer the mother was certainly somewhat hostile to the suggestion that she should not drink alcohol or should at least not drink to excess. She said that she does not drink every night but then volunteered that on the second day of this hearing, and when the child was to be collected from school by the father and stay with him overnight, she went with a friend to a hotel and consumed three pots of beer and then drove home.
I have very real concerns about her current level of drinking of alcohol and her failure to understand or appreciate the need for substantial moderation. I am certainly concerned at the level of social drinking in the presence of the child and most likely I have only been exposed by evidence to limited aspects of the wife's social and drinking environment. I find it difficult to accept much of the mother’s evidence on her lifestyle or social behaviour. I have accordingly given a measure of real weight to my concerns of the mother and of her approach and attitude to, and understanding of, these social issues. I do conclude this aspect of the evidence before me is of importance and it influences the additional considerations in balancing the best interests of the child. My concerns support the need for balance in the child’s life and therefore a shared parental responsibility situation.
I record that the mother made very general allegations against the father of alcohol consumption and abuse, and that he had contracted sexually transmitted diseases and had been referred to or contacted by the Department of Human Services in that regard. I have no evidence, though there was some vague reference made by her to documents generally subpoenaed to court through a medical practitioner but there was no cross‑examination of or disclosure of these documents or issues to the court. I therefore do not accept her complaints on these issues.
The mother suggested to the court that she was a practising Catholic and for that reason and because of availability of Catholic education, wanted the child transferred to a Catholic primary school and then educated at a Catholic school. The father said that the mother was not a practising or devout Catholic and did not attend mass or church services during their relationship.
The mother agreed that she does not attend mass and does not take the child to any church service. The child has had, as far as I can understand from the evidence, little or no exposure to the Catholic church or religious upbringing of the church, save that he was baptised.
There is simply no evidence before the court to support the order sought by the mother in paragraph 16 of her amended application, which was a follows:
“16.That the child be raised a Catholic as christened, and that the child spend all days of major importance to the Catholic religion with the mother each year. Unless inappropriate to the child’s needs, the child is to attend schools within the Catholic school system for the purposes of primary and secondary education”.
The child does not attend a Catholic school and was not enrolled within the Catholic education system. I have no evidence that he has ever received any teachings in the Catholic faith or been involved in any of its religious events. Likewise, and save that it must have been long ago, I have no evidence of when the mother last involved herself in any organised religious event or day.
I have evaluated this request by the mother for the child’s involvement within the Catholic faith as part of her sole parenting application as, if she were to have sole parental responsibility then the child’s religious upbringing and education would largely and substantially be her responsibility. Within my determination of that sole parental responsibility outcome and in the best interests of the child I am not persuaded to give any weight to the mother’s submissions on this issue; indeed I conclude that it more properly supports a shared parental responsibility outcome.
When asked why the sole parental responsibility order in her favour was appropriate and in the best interests of the child her response, in evidence to the court, was that:
“Because I have for six years unsuccessfully sought to involve the father in decision makings for [the child] … life should not be this difficult …”.
That evidence of the mother is consistent with relevant paragraphs of her affidavit upon which she relied but I do not conclude that they sufficiently promote or establish a need, in the best interests of the child, for there to be a sole parental responsibility situation.
Dealing with the issue of family violence the mother’s evidence was that:
“The father has exposed [the child] to family violence – he has yelled, screamed and physically pushed me in front of [the child]”.
That evidence of the mother supports the outcome of the family violence intervention order and is no doubt very similar to evidence given to and upon which the Magistrate must have relied. I certainly accept that the father has behaved improperly and in a loud, abusive and aggressive manner on previous occasions and that is wholly inappropriate and indeed deplorable when enacted in the presence of the child. I have considered and balanced all aspects of family violence in my ultimate determination of appropriate parenting and child orders.
Notwithstanding all of the complaints of the mother directed towards the father what was clear from her evidence, and from that of the Family Consultants, is that the father does enjoy a very good and balanced relationship with the child who is clearly very comfortable and relaxed in his father’s presence. The caveat placed by the mother upon that evidence was that “the relationship could be better”. My observation is that, if the relationship between both parents and the child is to further improve, it needs a marked change in the attitude and demeanour of both parents, a more civil and relaxed environment and the finality of all court proceedings.
My assessment of the mother’s personality and behaviour is that she has at times acted in a calculating and a controlling manner towards the father. I do conclude that, certainly recently she has become aware of the fact that a lack of co-operation and failure to communicate between the parents would assist her outcome of achieving a sole parental responsibility order. I conclude that she has thus acted on occasions to somewhat provoke and escalate conflict and issues, but with her ultimate aim in mind. She is bitter and resentful towards the father and unfortunately fails to acknowledge or have any real understanding of the impact upon the child of the tension, turmoil and parental conflict. This attitude and capacity does unfortunately limit her parental skills and has made more difficult the ongoing parental relationship and their upbringing of the child. Again, and if there is to be a positive scenario it is that I have little evidence of recent conflict post December of last year and hopefully the effect of the intervention order and the conclusion of these proceedings will restore a measure of calmness and certainty to the parents and their lifestyle. The competition between each of them must abate and somehow and sometime they must each understand that they are the parents of the child and must responsibly communicate, work and respond to his best interests.
MOTHER’S AFFIDAVIT
The primary affidavit of the mother filed 20 January 2009 is both a well drawn and clearly set out document. It was drawn in such a way as to highlight the conflict and lack of communication between the parents no doubt targeted at convincing a court of the need for a sole parental responsibility order based on the inability or refusal of the parents to co-operate.
The father briefly cross examined the mother and objected to the contents of various paragraphs of her affidavit and in particular paragraphs 6, 7, 8, 9, 25, 26 and 28.
The mother strongly submitted to the court that the father’s relationship with the child is predominantly play based. She alleged he lacked insight into the needs of the child and refused to co-operate and discuss health, medical, occupational therapist and optometrist issues, which the father largely denied. The mother asserted that the father’s lifestyle was not conducive to substantial parenting and that he cannot prioritise the child’s needs above those of himself. As an example she identified his sports orientated lifestyle and commitments and the fact that he involved his sister in the child’s collection and sometimes care.
I have carefully read the mother’s affidavit in the context of the allegations she has made of the father and, leaving aside issues of family violence I do not find myself in support of or accepting of the mother’s many and varied complaints.
The mother has summarised the orders that she seeks, and the reasons therefore in paragraph 29 of her affidavit. As a general response I do not accept the evidence of the mother contained in sub-paragraphs (a) – (f) (inclusive) thereof. Specifically I have no evidence that the child is and remains unsettled. He has a primary home with his mother and that will remain the ongoing situation. I have examined in detail the changeover venue but do not accept the mother’s proposal in lieu of that which has now operated over the past four months without incident. I do not accept that a sole parental responsibility order “acknowledges the reality of the past six years”. I do intend to pronounce orders that will conclude all proceedings between these parties and the court can only hope that they will thereafter devote their time, energy and money to the best interests of the child and not in continual and ongoing litigation. The orders will provide for the child embracing both his school life and his after hours sporting and other activities and, of course, whatever arrangements both parents make for him in their time.
Both parents exhibit an appropriate attitude to the physical needs of the child. Within their own family environment they are responsible parents though that is subject to their inherent difficulties in co-operation and liaison with the other.
As to sub-paragraph (j) and (k) the issues of violence and abuse have been exhaustively considered throughout these reasons for judgment. Notwithstanding the continuing family violence intervention order I conclude that the orders pronounced for equal shared parental responsibility and the time that the father will spend with the child are in all of the circumstances appropriate and in the best interests of the child.
As to the finality of further proceedings in this court I have balanced the short and long term needs and interest of the child in arriving at the orders pronounced. Given the lack of communication and trust between the parents there likely will be future schooling issues, at least at secondary level or otherwise if and when the mother is genuinely required to relocate to another suburb in Melbourne. The outcome of such future events cannot, of course, be reasonably anticipated or determined at this time.
As I have evaluated the requirements of sub-paragraphs (c) and (i) of the additional considerations in sub-section (3) of s60CC I am therefore required pursuant to sub-section (4) of 60CC to consider the extent to which each of the parents have fulfilled, or failed to fulfil their responsibilities as a parent and I record that I have carefully assessed each of the opportunities, involvement and decision making of the parents as stipulated therein. Further and pursuant to sub-section (4A) I have carefully considered all of the post separation events relevant to a determination of orders that are made in the best interests of the child.
In considering all of the primary and additional best interests of the child I have ultimately concluded that on the principal issue of parental responsibility and otherwise on the best interests of the child it is both the safer and more appropriate course of action to accept much of the evidence given by the father as against that of the mother. To the extent that the father’s evidence or outcome is supported by the Independent Children’s Lawyer and the Family Consultant that adds both weight and support to this outcome. I reach this conclusion with the major caveat of my earlier concerns and criticism of both parties and the fact that the timetable for the child is now urgent and his parents must reflect, act and improve their own relationship and put the child before any selfish or personal requirements.
TIME SPENT AND COMMUNICATION ORDERS
Both parents presented their case on the basis that the child live with the mother. That outcome was supported by the Independent Children’s Lawyer and the orders pronounced will provide for that outcome.
I have concluded that in each alternate weekend the child should spend time with his father from after school Friday until the commencement of school on the Monday morning or otherwise the following school day if and when appropriate. In the other week what is ordered initially is one overnight occasion on the Monday extending from second term this year to overnight on two occasions, being both the Monday and Tuesday nights and until the commencement of school on the Wednesday morning.
I have accepted the recommendations of the Independent Children’s Lawyer and the Family Consultant in the form and provision of these orders. It is an arrangement with which the child is now comfortable and the removal of a changeover at 7.30 p.m. on the other Tuesday can only be in his best interests. I am satisfied that the father can properly accommodate and care for the child at all times appropriate for these spend time with orders to operate efficiently and in his best interests. I do not accept the mother’s request for one only block period each fortnight and do accept that the child needs more regular and meaningful periods of time with his father.
Otherwise I have generally provided for special days including birthdays and the order for time in the days surrounding Christmas Day in each year was agreed to by the parties.
I have determined school term and summer holidays on the basis of the evidence and what I regard as workable and in the best interests of the child. I do well appreciate that the father has the same period of sixteen, or thereafter and from 2010 / 2011 eighteen days in each year but that the mother has the time from the conclusion of school until Boxing Day (inclusive) and thereafter from 28 December until 9 January (inclusive) a period of twelve consecutive days.
The intent of the court is that, wherever possible changeovers will occur at school and on school days and otherwise I have hereafter considered the appropriate changeover venue on other days.
SCHOOLING
The mother does not specifically seek by order 16 of her amended orders filed 20 January 2009 to immediately remove the child from K Primary School, which he attended last year in his preparatory year and which he has recommenced in Grade 1 this year. There is no earlier order sought by the mother for a change of school or for the child to attend only a school within the Catholic education system.
Pursuant to the consent order pronounced by Brown J on 30 November 2007 it was ordered that the child be enrolled at K Primary School in the calendar year 2008 and thereafter. The mother was asked how and why she consented to that order or thereafter did not object and file any order for a change of school until January of this year. Her answer was, to the effect, that she was preparing and interviewing schools and making appropriate inquiries. I do not accept that response as being adequate and sufficient.
The primary paragraph of the mother's affidavit dealing with this schooling issue is paragraph 14 where she deposes as follows:
"[The child] is far from settled at [K] Primary School. I have been advised that this is a result of [the child’s] maturity level, the enormity of change and emotional energy required of him for his life outside of school and the school itself in regards to its policies and culture and the lack of timeliness with which it deals with identified student needs. The primary request made of the school by me for this coming year was to have [the child] not to be in the same class as a child who has been a constant source of bullying, teasing and physical abuse throughout last year. The school has separated [the child] from his closest friends and have placed him in a class with the one child he does not want to be with. I was informed of their inability to amend class placements on the second‑last day of school last year.
Whilst there will always be challenging people to deal with, [the child] would benefit from an environment that embraces proactively teaching children how to do that, rather than one which reacts on an individual basis to individual situations. I believe [the child] would benefit from moving to a school with a different culture to that of [K] Primary School. I have held discussions with a number of school principals and have a few more planned prior to the trial date, at which time I hope to have a solid recommendation for an alternative school for [the child] in the coming year. It is not of benefit to [the child] to be locked into a particular school in court orders, as children change, as do their interests and needs, and they should be able to attend the most appropriate school for them at any point in time."
Unfortunately the mother provided few, if any, real or considered alternatives to the court. At some point in her evidence she identified a Catholic Primary School in E and said that she had had a telephone discussion with an officer of that school. She did briefly mention two other primary Catholic schools, and then made passing reference to a Rudolf Steiner School where some relative of the father's had attended school.
The mother provided no information of the schools, had not been to any interview herself or with the child and certainly had no acceptance of a place at school from any other educational group. Her homework and effort in this regard was non‑existent and could not possibly support any change of school in this year and most likely during the child’s primary years and for so long as he lives within the immediate neighbourhood and zone of K Primary School.
The mother identified and relied upon an e-mail that she had sent to the father on 25 October 2007. That document is the first annexure to her Notice to Admit facts addressed to the father and filed 20 January 2009. In that document she requested of the father, as a matter of urgency, a list of primary schools which he was considering for the child with a summary of the benefits of each school and his preference together with him providing advice on his anticipated financial contribution for education purposes. The mother identified that both parties lived in the E primary school zone and it is clear that the mother’s preference was for the child to commence at that State primary school. There is no reference to any Catholic education or Catholic primary school. I conclude that e-mail is an important document to be evaluated in this case and it most certainly, given it was prepared and sent by the mother, does not in any way support, indeed it significantly lessens her submission on schooling. Of course, and only to state the obvious, following upon that e-mail agreement was reached and the child was enrolled and remains a pupil of the K Primary School.
The father seemingly first raised attendance at K Primary School in his interview with the psychologist Ms D in August of 2007, as in her report it is recorded that:
"While there is as yet no agreement between the mother and father as to [the child’s] school for 2008, the father states that all of his friends will be attending [K] Primary School."
As the amended response of the mother seeking the order for the change of school and education within the Catholic school system was filed only after the father had prepared and filed his affidavit, he has therefore not had the opportunity to address therein the issue of schooling other than in his evidence‑in‑chief and under cross‑examination.
The father is very supportive of K Primary School and most certainly requests that the child continue his attendance at that school.
Exhibit "ICL3" is the end of year student report for the child for last year. I have read and evaluated that report. The child was assessed in all areas to be at the standard expected of him and an age appropriate child in their preparatory year. His effort and class behaviour was recorded as "very good". Otherwise I have read what the teacher Mrs T recorded and he certainly does need some occupational therapy and other assistance from the school, that has been assessed, though the mother would claim that it was initially neglected and not properly supervised. On the basis of that report, the school subjects offered and the observations of the teacher, I concluded that the child was suited to his class last year and participated in school activities, though I note that his attendance level was only recorded as "satisfactory" and that he was late for school on seven occasions and absent from school for seven and a half days.
There was evidence given about the school friends and in particular one child with whom there were three particular incidents last year. On two occasions it appears that the child received detention, one for putting a thumb tack in the custard tart that the other child was eating and then again for throwing sand in his eye. The third occasion was when the child was on the receiving end of a hard knock when drinking water at a school tap. I am satisfied the school appropriately handled those issues and there has been a level of discussion between respective parents. The mother's initial concern was that the child was placed in a Grade 1 class this year with that same child, but the father is supportive of that placement and believes there is no real issue in their relationship. The child has other friends at that school and, on the evidence I have heard, is happy and settled.
In reality there is no option to change school immediately, as no alternative was provided to the court. However, and on the positive note, I am satisfied that this school is currently very appropriate for the child and therefore he will remain at K Primary School for this school year and the foreseeable primary school future years.
As part of her argument in changing school, the mother intertwined the school argument with her religious beliefs and the need for the child to be wholly involved in a Catholic education system. The evidence of the mother and of her history simply does not lend support to her argument. I accept the evidence of the father that the mother was not a devout Catholic. She did not attend church during the relationship and does not attend any mass now, nor does the child save perhaps on Christmas Day. The mother's evidence was that she has not involved the child with the church or mass but that they occasionally visit and sit in a church.
It is a matter of very real significance that the mother consented to K Primary School, a non-Catholic state primary school. I do not accept the mother's submissions or evidence on this or related issues, such as her request to have the child with her on all important Catholic religious days such as Good Friday, Easter Sunday, Ash Wednesday and other holy days throughout the year.
The determination of the schooling issue is founded upon making a decision in the best interests of the child balanced against the proper and available alternatives which were not present in this case. There are many reported decisions of this court dealing with the determination of the appropriate school, the most often cited of which is the decision of the Full Court (Nicholson CJ, Kay and Brown JJ) in Re G: Children’s Schooling (2000) FamCA 462 where the various factors considered by that court on the schooling issue included:
§the wishes of the child, where appropriate;
§any prior agreement in relation to schooling;
§any change to the existing arrangements;
§any anxiety which the child may experience as a result of changing peer groups;
§the views of the parents about the affect of change upon the child;
§the travel time to school;
§the costs of education;
§any particular issue that may have a real impact upon the child and his immediate schooling and social environment.
The above list of matters are not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child. I have read and considered other reported decisions of trial judges such as the decision in H and M [2001] FamCA 851 and more recently the decision of F and F [2006] FamCA 125 in which case Rose J observed that:
“There is no suggestion that merely because the child will go to a different school therefore the benefits of the family input in terms of religious values and association with friends who share a similar religious philosophy will somehow or other be weakened or come to an end. After all, one does not need to be an expert to appreciate that teaching values in life, whether based on religion or otherwise, is to some extent a responsibility of parents in their own home life as school is created not to take on the burden or responsibility of every aspect of the child’s upbringing”.
In summary and having considered all of the relevant s60CC factors and carefully analysing the relevant facts of this case and the child’s current schooling it is appropriate that he remain a pupil of K Primary School.
CHANGE OF SURNAME
The child was registered with the surname Raymond and the original of that birth certificate was produced by the mother to the court, though as it was the original it was returned to the parties and not marked as an exhibit in the proceedings.
The father's evidence is that there was no discussion of or disagreement about the fact that the child would carry his surname. The mother's evidence is that the name was registered only on the last day of the 60-day period after birth and that was because of her indecision in relation to the name. I do not accept that response. It does not fit with all of the evidence in this case.
The child was baptised on 6 June 2004 and the baptismal certificate is in evidence as exhibit "ICL4". He was baptised under the name of S Raymond Harold. I observe that date of baptism, 6 June 2004, was after the final separation and certainly this ceremony was organised by the mother with minimal input from the father.
The mother now seeks for the first time an order in paragraph 14 of her recently filed amended response to change the surname and to obtain a new passport in that amended name for the child. Again, and of significance, that was the first application of the mother seeking that name change.
The relevant fact contained within paragraph 16 of her affidavit that lends some weight to her application is that in 2004 the father attended with her at the office of Births, Deaths and Marriages to submit paperwork to change the surname from Raymond to Harold. Whilst perhaps reluctant he was then agreeable to a change of surname. The parents were unable to then effect that paperwork to change the surname because the father did not have the appropriate paperwork or identification documents with him. Thereafter the mother alleges and the father agreed that he has declined to co-operate or provide identification required to facilitate that name change.
The father's explanation is that he enjoys and wants the child to have his surname. That, he said, was agreed at birth and there was one period only, post‑separation, where he acknowledged that he agreed to a change of name. His evidence is that was in the light of discussions with the mother when she raised the issue of having other children in future years, by other relationships, and wanting to avoid any confusion of surname and so that the child would carry her surname as would any future children. The mother of course has no more children and the father currently believes that the child is well‑known by and comfortable with the surname of Raymond. He is enrolled at his school under that surname and his passport formerly issued under that surname and that was required when the child and his mother enjoyed a holiday in Thailand.
I have no evidence before me, of a professional nature or otherwise, that the child is in any way uncomfortable with or disadvantaged by his surname. The school at which he attends has made no reference in the report and there is no evidence of any embarrassment or upset that the child suffers from carrying his father's surname whilst living with his mother.
Currently I can identify no evidence of any confusion of identity with the child and his surname, and the parenting arrangements between the parents have both of them somewhat involved at school and in collecting or delivering the child to school. Further, from the evidence I have heard, the mutual friends and other school parents and acquaintances all know of the separation and history of the parents and indeed very few of those people would ever have known the parents as a couple.
On all of the evidence before me the child copes very well with each of his parents, their respective homes and his lifestyle. There is not the slightest suggestion of upset to the child nor of any real reason for a change of name, save that the mother has been the primary parent and pursuant to orders the child has lived with and will continue to live with her, notwithstanding the substantial time to be spent with his father.
The mother produced to the court various documents showing the child was enrolled in swimming classes under the name Harold, but again these were solely at the preparation or organisation of the mother and I give them little or no weight. The reality may be that the child is comfortable and has interchanged with the names of both of his parents but predominantly he has, and I would conclude should in future, remain known as Raymond.
There are numerous reported authorities on a change of surname, perhaps most recently summarised in the reported decision of Flanagan v Handcock (2001) FLC 93-047, where the Full Court reviewed a number of earlier reported decisions relevant to a change of surname. Those cases reviewed included George and Radford (1976) FLC 90-060; Chapman and Palmer (1978) FLC 90-510; Beach and Stemmler (1979) FLC 90-692; Kelley and Kelley (1981) FLC 91-002; Skrabl and Leach (1989) FLC 92-016 and Mahoney and McKenzie (1993) FLC 92-408 and from which the following principles that must be considered and evaluated can be summarised as:
§the final outcome must be governed by the best interests of the child and not by supposed parental rights;
§the child should not be subjected unnecessarily to any confusion of identity;
§the short and long term effects of any change of surname must be considered;
§the advantages, both in the short and long term which may accrue to the child if their surname remains as it is now;
§the present and ongoing involvement of both parents in the life of the child;
§that he is currently enrolled at school under his father’s surname and the earlier agreement that he be registered with that name.
I have accordingly carefully evaluated the evidence and given very considerable thought in the exercise of my judicial discretion as to any change of surname. In all of the circumstances of this case and having primary regard to the best interests and welfare of the child I have concluded that he should remain known under the surname of Raymond.
The father has not directly sought an injunction pursuant to section 68B of the Act to restrain the change of surname, though I understand that his "orders sought" document was prepared, but not filed, prior to the mother's amended response. His position in court has been to actively oppose and injunct any name change and I conclude it is just and proper and certainly in the interests of the child to bring security to the issue of his name and to pronounce an injunction restraining both parents from changing his surname of Raymond to Harold, or any other single name or combined name.
There was discussion with both parties about the use of a hyphenated surname. That was rejected by both of them. The father reluctantly initially suggested that the mother's surname could be added as another middle name, but certainly not a surname, but that would seem very cumbersome to the child. Likewise the mother, very much as a second alternative, was prepared for the child’s name to be hereafter known as "[S C Raymond Harold]". Likewise that is cumbersome and confusing to the child and others and I do not accept any such name change.
The reality of the child’s surname is that it was chosen by his parents when his birth was registered. He has always been known as Raymond, for school, in court proceedings and for the passport application, and I will not permit the other surname to be substituted or added as a further middle name as I do not regard that to be meaningful or in the best interests of the child.
COMMUNICATION BOOK
Senior Registrar Fitzgibbon, on 22 October 2007, directed that the mother commence a communication book to be exchanged between the parties on each occasion of time spent by the child with the father but that it be limited to information about routine, health, social or school commitments.
I have had three communication books produced to me which I have read. They cover the period 2007-2008 and their contents were very helpful and appropriate.
Given the very high level of tension between the parents in this case, their upset and aggravation with each other and their total lack of meaningful and well‑spirited communication, I propose to require an ongoing communication book which may be used in conjunction with written e-mails. This is of particular importance given the current two-year intervention order and the need to avoid the parties having to discuss issues of importance concerning the child. From what I have seen, they are capable of fully detailing in that communication book all matters of health and social interest and concern for the child and that must be ongoing.
CHANGEOVER VENUE
The earlier consent orders pronounced by Brown J in November 2007 and the prior orders of Senior Registrar Fitzgibbon pronounced 22 October 2007 did not make provision for a specific changeover venue. The child was then attending crèche but the particular venue of changeover, and any issues surrounding his collection or return, were not considered by the court. The same situation applied in the earlier orders of the Senior Registrar of 5 July 2007. Perhaps then changeover venue had not developed as such an explosive issue.
In her amended response now filed, the mother seeks an order that if changeover is to occur other than at school then it must occur inside the K Police Station closest to the residence of the mother and, if the child were to be ill, then inside the medical clinic attended by the mother.
The father has expressed a very strong view about his attendance at any police station to collect or return the child, and indeed in paragraph 19 of his affidavit simply stated that "I refuse to attend any changeover at the police station".
From the time when the father first commenced to communicate and have contact with the child there have been some difficulties in changeover, though these have dramatically escalated over the two past years. The history of the development of this complex issue is highlighted in paragraphs 17-21 of the father's affidavit and in particular it was the interim orders of 11 September 2008 that provided for a changeover at the McDonald store, E, other than during school terms.
I am particularly mindful of the current intervention order and the parties' inability to communicate with each other and the level of angst and conflict, and certainly abuse, that has occurred or been alleged on past changeovers. The mother has not put forward any particular or personal objection to McDonald's as a changeover venue, save that she disputes the level of surveillance cameras installed at that particular E store and otherwise has a preference for the security and atmosphere of the police station. On the other hand the father has told the court from the bar table of his conversations with the staff of the McDonald's store and their level of surveillance and that it is a very popular and well used changeover venue for children. He has expressed a vehement objection to the police station because of the insinuation of wrongdoing and because it exposes the child to an unnecessary and inappropriate scenario from which he should be shielded, that is the inability of his parents to cooperate as proper citizens and parents.
I have no evidence before me from any independent source of the attitude or behaviour of the parents on changeover. I have no police report or request, nor any information from any person who has been involved on changeover with the parties.
What is of significance is that, seemingly, after McDonald's was introduced in September 2008 there has been no real incident or complaint at that venue. What is fundamental to the child is that there is a gracious and non-conflictual handover between parents, and he is now of an age where he should be able to simply walk from one parent to the other without them being directly in conflict with each other. Indeed with a communication book there is no reason why the child could not convey that from one parent to the other, and that would otherwise limit any discussion between parents to email or telephone or SMS contact.
The majority of times the changeover will be at school, and the orders sought by the parents and that which I will make for the time to be spent by the father with the child will specifically be drafted to accommodate a maximum number of school changeovers.
Having regard to the best interests of the child and being very mindful of the need for security and with a public changeover, I do propose to continue McDonald's, E store, as the venue. I see only a downside for the child and his perception of his parents if the changeover occurs inside or outside of the K police station.
CONCLUSION
I have listened attentatively to the parties and the Family Consultant. I have read all of the evidence before the court and have asked many questions of each of the parents to better understand both their case and their concerns. I have concluded orders that I find to be in the best interests of the child S, both in the short and hopefully the long term. I would encourage the parents to accept these orders and to make every endeavour to co-operate and promote the future opportunities and life of the child.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
………………………………………………………..
Associate:
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