REGINALD & REGINALD

FEDERAL CIRCUIT COURT OF AUSTRALIA

REGINALD & REGINALD

[2018] FCCA 3225

Catchwords:
FAMILY LAW – Parenting – final orders made by consent in 2015 – whether mother promoting a relationship between the father and the child – whether child’s attendances on medical practitioners are reasonable – child continue to live with the mother – child spend three out of four weekends with the father – parties have equal shared parental responsibility save for the father have sole parental responsibility in relation to medical issues – orders made.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Rice v Asplund (1978) FLC 90-725

Applicant:

MR REGINALD

Respondent:

MS REGINALD

File Number:

MLC 5002 of 2014

Judgment of:

Judge Hartnett

Hearing date:

13 August 2018

Delivered at:

Melbourne

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr Hoult

Solicitors for the Applicant:

Ian Robertson Legal

Counsel for the Respondent:

Mr Chislett

Solicitors for the Respondent:

David Luscombe & Associates

THE COURT ORDERS THAT:

All previous parenting orders be and are hereby discharged.

THE COURT ORDERS, BY CONSENT, THAT:

Save for medical decisions in respect of the child of the relationship [X] born 2011 (‘the child’), in relation to which the father shall have sole parental responsibility, each of the mother and father shall have equal shared parental responsibility for the child.

THE COURT ORDERS THAT:

It shall be part of the father’s parental responsibility that all invoices and fees incurred relating to medical appointments are rendered to him.
Nothing in order 2 herein shall prohibit:-
(a)the mother from having the child attend upon a medical practitioner and/or hospital in the event of a medical emergency whilst the child is in her care;
(b)the mother from taking the child to attend all necessary appointments as directed by the father; and
(c)the mother, following consultation with and agreement by the father, taking the child to attend any medical appointment/treatment whilst the child is in her care.
Nothing in order 2 herein shall cause the cessation of the child’s attendance upon Dr C, paediatrician, prior to Dr C’s expression to the parties of his opinion that there is no further need for the child to attend upon him.
The child live with the mother.

THE COURT ORDERS, BY CONSENT, THAT:

The child spend time and communicate with the father during school terms for the first three weekends of each month commencing at 5.30pm at the conclusion of school and concluding at 5.30pm on the day before school recommences;

THE COURT ORDERS THAT:

The child spend time and communicate further with the father as follows:-
(a)during school terms:-
i.by telephone each Wednesday between 4.00pm and 4.30pm with the mother to initiate the call to the father’s mobile telephone save in the week when the father will spend no time with [X] when in addition to each Wednesday, telephone communication shall be had each Friday between 5.00pm and 6.00pm;
ii.by telephone at any time the child wishes additional to that provided for in these orders, with the mother to initiate the call to the father’s mobile telephone; and
iii.upon the child attaining the age of ten years, by telephone at all reasonable times with the father to initiate all calls;
(b)during the school term holidays:-
i.providing the father takes annual leave for one week, then commencing at 12 noon on the first Saturday and concluding at 12 noon on the mid Saturday of the school holidays as notified to the mother 60 days prior to the commencement of the relevant school holiday period. The father is to be in substantial attendance;
ii.in the event the father does not take annual leave, then for a period of up to 5 consecutive nights, this time to include a weekend and a rostered day off, being dates and times at the father’s election as notified to the mother 60 days prior to the commencement of the relevant school holiday period. In the event the Easter public holidays fall within the school term holidays then the father shall only make an election for time spent with the child which will include the Easter public holidays every second Easter;
(c)in the event the Easter public holidays do not fall in the school term holidays, from 5.30pm on the Thursday evening preceding Good Friday until 5.30pm on Easter Monday each alternate Easter commencing in 2019;
(d)in 2018 and each alternate year thereafter from 3.00pm Christmas Day to conclude at 3.00pm on 9 January 2019 and thereafter from 3.00pm on 16 January 2019 until 3.00pm on 23 January 2019;
(e)in 2019 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm on Christmas Day;
(f)in 2019 and each alternate year thereafter from 3.00pm on 2 January 2019 until 3.00pm on 16 January 2019 and for a 72 hour period thereafter prior to the commencement of school at the mother’s election;
(g)on the child’s birthday if the child is not in the care of the father and upon the father giving the mother seven days notice of his intention to do so:-
i.if a non-school day from 12.00 noon until 3.00pm;
ii.if a school day from 5.30pm until 7.30pm;
with the father to collect the child from and return the child to, the mother’s residence;
In the event the child is in the care of the father on the child’s birthday, which will not occur before 2023, the mother is at liberty to spend time with the child from 12 noon to 3.00pm with the mother to collect the child from and return the child to, the father’s residence.
In the event that Mother’s day and/or Father’s day falls on a weekend when the child is not in the relevant parent’s care, then the child shall, notwithstanding any other orders, remain in the care of the mother for the entire weekend or be in the care of the father for the entire weekend to 5.30pm Sunday with the father to provide to the mother the care of the child in the immediately following weekend in substitution thereof should same fall during the school term.
The parent in whose care the child is not is at liberty to spend time with the child on the parent’s birthday from 5.30pm to 7.30pm upon the parent giving the other parent seven days notice of their intention to do so. The parent having the birthday is to collect the child from and return the child to, the location of the parent who then has the care of the child.
For the purpose of changeover, the parties or their nominee, ensuring that the nominee is a person well known to the child, will attend changeovers at [Suburb A] McDonald’s unless agreed otherwise in writing.
Each parent give consent for all doctors or hospitals to speak with the other parent and all information be communicated to the other parent in the case of any illness or injury to the child.
The parties at their own expense are able to receive information from the child’s school normally provided to a parent and be at liberty to attend events such as parent/teacher interviews, school concerns and the like that the parent are usually invited to or otherwise encouraged to attend.
Each party keep the other advised of their current email address, landline and mobile telephone numbers and provide the other with not less than seven days written notice of changeovers.
Each party should notify the other forthwith of any serious medical illness or injury concerning the child and provide details of the medical practitioners involved.
Without admission of the necessity to do so, the parties, their servants and agents be and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and from discussing these proceedings to or in the presence or hearing of the child or otherwise permitting any other person to do so.
There be no order as to costs.
Otherwise all extant applications are dismissed.

AND THE COURT NOTES:

A.Any further applications made by the parties in the next two years to be listed in the docket of Judge Hartnett where possible.
B.The child’s current preference is to speak with his father on the telephone for a short period of time commensurate with his age.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5002 of 2014

MR REGINALD

Applicant

And

MS REGINALD

Respondent

REASONS FOR JUDGMENT

Preliminary

These proceedings concern the parenting arrangements for the child [X] born 2011 (‘[X]’) who is now aged approximately seven years and six months. The Applicant father was born on 1976 and is now aged 42 years. The Respondent mother was born on 1981 and is now aged 37 years. The parties cohabitated prior to marriage, married on 2010 and separated on a final basis on 4 January 2014. Neither party is currently in another relationship. On 15 July 2015, the parties entered into final consent orders as to parenting arrangements in respect of the child. This put an end to litigation that had existed between the parties for in excess of one year (‘the final orders’).
The final orders provided, amongst other things, for the parties to have equal shared parental responsibility for [X], for [X] to live with his mother, and for [X] to spend time with his father.
The spend time with orders were, relevantly, as follows:-
4. That [X] spend time and communicate with the father as follows;
…
(b) Commencing 20 November 2015 and each alternate weekend thereafter from the conclusion of school/childcare/kindergarten on Friday (or 3.30 pm if a non-school/childcare/kindergarten day) until 5 pm Sunday, save that if the Monday is the father’s RDO such time extend to 5 pm Monday;
(c) In the event that the father’s RDO occurs on a Monday that the father does not follow the weekend [X] spends time with him, from 10 am to 5 pm that day;
(d) By telephone and/or Skype each Wednesday between 4 pm and 4.30 pm with the father to initiate the call; and
(e) Such further or other times as agreed via the communication book.
5. That commencing June 2016 during all school term and long summer vacations the arrangements in order 4 herein be suspended (and recommence in the same cycle after the holidays as if the holidays had not occurred) and [X] spend time with the father as follows:
…
(e) Commencing in the June/July 2017 school holidays and thereafter for one half of all school term holidays as agreed and failing agreement from the conclusion of school on the last day of school term until 10 am on the middle Saturday of the school holidays;
(f) Commencing in the December 2017/January 2018 until [X] turns 8 years of age for one half of all school holidays as agreed and failing agreement on a week about basis as agreed and failing agreement with the father for the first week;
(g) Upon [X] turning 8 years of age in the long summer holidays for one half, as agreed and failing agreement, with the father for the first half.
6. That on special occasions the arrangements in orders 4 and 5 be suspended and [X] spend time with each parent as follows;
(a) At Christmas in 2016 and each alternate year thereafter with the mother from 3 pm on 24 December until 3 pm on 25 December and with the father from 3 pm on 25 December until 3 pm 26 December;
(b) At Christmas in 2015 and each alternate year thereafter with the father with the father from 3 pm on 24 December until 3 pm 25 December and with the mother from 3 pm on 25 December until 3 pm on 26 December;
(c) On Mother’s day weekend anytime which [X] would spend be due to spend time with the father be suspended and [X] spend time with the mother;
(d) On Father’s day weekend with the father from the conclusion of school/childcare/kindergarten (or 3 pm) Friday until 5 pm Sunday;
(e) On [X] and [Y]’s birthday;
(i) If a non school day, with the parent with whom he would not otherwise be spending time from 12 noon until 6 pm;
(ii) If a school day from the conclusion of school until 6 pm.
(f) On each of the parents birthdays if [X] is not already spending time with them;
(i) If a non school day from 12 noon until 4 pm; and
(ii)If a school day from the conclusion of school until 6 pm;
upon the parent giving the other parent 7 days’ notice of their intention to do so.”
Since July 2015, there has been some disagreement between the parties as to the interpretation of the final orders. The disagreement related mainly to the father’s time spent with on rostered days off (as provided for in order 4(c) above); the frequency of [X]’s attendances on medical professionals; and the interpretation of order 11 of the orders. Order 11 of the orders is as follows:-
“ That in the event that the husband is unable to care for [X] for a period longer than 3 hours during the time [X] spends with him, the wife be afforded the first opportunity to care for him.”
It is not surprising the above order created difficulties between the parties, in particular given the geographical distance between their respective residences. Both agree this order should not continue but unfortunately the Court processes were required to reach that consensus.
The father filed his initiating application on 4 November 2016, some 16 months after the final orders were made. In the initiating application, the father sought, relevantly, the following orders:-
“1. That all previous Family Court Orders be discharged.
2. The Parties have equal shared parental responsibility for the child [X] born 2011 (the Child).
3. The child [X] to reside with the Father.
4. The child spend time and communicate with the Mother as follows:
(a) every alternate weekend from 4.30 pm on the Friday until 6.30 pm on the Sunday;
(b) By telephone each Wednesday between 4 pm and 4.30 pm with the Mother to initiate the call to the Husband’s mobile telephone;
School Term Holidays
5. For half of the school holidays as by agreement or failing agreement from the last day of school term for half the holiday period.
6. The period of the school term holidays shall commence from the first night of the last school day and conclude on the first school day and the time is to be calculated by the nights the child is not at school.
Easter
7. From 4.30 pm on the Thursday immediately before Good Friday until 6.00 pm Good Friday.
8. Where Easter falls within the term break, the Father to spend time with the child in line with the father's Work Place Agreement in relation to the Easter Break allocated Rostered Days Off.
Special Occasions
9. On the child's birthday if the child is not in the care of the mother;
a. If a non school day from 2 pm until 6 pm.
b. If a school day from after school until 7.30 pm.
Christmas Day
10. Commencing 2017 on Christmas day from 11 am until 4 pm on Boxing Day and each alternate year thereafter.
11. Commencing 2018 on Christmas Eve from 4 pm until 11 am on Christmas Day and each alternate year thereafter.
Mother's Birthday
12. If the child is not in the care of the Mother then from 11 am until 4 pm if a non school day or from 4.30 pm until 7.30 pm if a school day.
Mother's Day
13. If the child is not in the care of the Mother then from 11 am on the Saturday until 4 pm on the Sunday.
Changeover
14. That for the purpose of changeover the parties or their nominee, ensuring that the nominee is a person well known to the child, will attend changeover at Suburb A McDonalds unless agreed otherwise in writing.
…”
On 22 May 2017, the father filed a contravention application, alleging four breaches of the final orders. He proceeded on two counts.
On 21 August 2017, the contravention application was heard. The father alleged contraventions on 19 August 2016 and 2 September 2016. Both contraventions involved the mother failing to make [X] available to spend time with his father as ordered, including on Father’s day in 2016. The Court found both counts of contravention proven. The mother entered into an undertaking to be of good behaviour for twelve months and in that time not contravene the final orders. The Court notes that there have been no established breaches of Court orders by the mother since 2 September 2016.
The father was not required to address the Court as to any Rice v Asplund[1] matters that may have been relevant because, as conceded by the mother, order 9 of the final orders had become operational on the Court’s findings, on 21 August 2017, that the mother had contravened the final orders. The Court notes the finding as to the mother contravening orders of the Court post-dated the father’s initiating application. The mother’s Counsel took no issue with this however. Order 9 of the final orders is as follows:-
“That in the event that the mother fails without reasonable excuse to make [X] available to spend time in accordance with these orders, or to attend counselling, the father be at liberty to apply for an order that [X] live with him, and such non-compliance by the mother will be considered a change of circumstances.”
[1](1978) FLC 90-725.
In a document filed on 16 January 2018 and titled ‘Amended Final Orders Sought by Applicant’ (‘amended application’), the father sought that the parties have equal shared parental responsibility; that [X] live with him; and that [X] spend time and communicate with the mother, relevantly, as follows:-
“4. …
(a) every alternate weekend from 5.30 pm on the Friday until 5.30 pm on the Sunday;
(b) By telephone each Wednesday between 4 pm and 4.30 pm with the Mother to initiate the call to the Husbands mobile telephone.”
…
Special Occasions
9. On the child’s birthday if the child is not in the care of the mother;
a. If a non school day from 2 pm until 6 pm.
b. If a school day from 5.30 pm until 7.30 pm.
Mother’s Birthday
12. If the child is not in the care of the Mother then from 11 am until 4 pm if a non school day. Or from 5.30 pm until 7.30 pm if a school day.
Mother’s Day
13. If the child is not in the care of the Mother then from 11 am on the Sunday until 4 pm on the Sunday.
...”
Additional to the above, the father sought orders for the school term holidays, Easter and Christmas Day in the terms as sought in his initiating application.
The father’s amended application provided a set of alternative orders in the event the Court determined not to change [X]’s residence. Those orders provided for equal shared parental responsibility of [X] between his parents and otherwise, in circumstances where the child would continue to live with his mother, an increase in time spent with between the father and the child as follows:-
“ 4. The child spend time and communicate with the Father as follows:
(a) For the first three (3) weekends of each month commencing at 5.30pm at the conclusion of school and concluding at 5.30 pm on the day before school recommences.
(b) By telephone each Wednesday between 4 pm and 4.30 pm with the Mother to initiate the call to the Father’s mobile telephone; and
(c) The Father is at liberty to call the “child” on any other day between the hours of 4 pm and 5.30 pm and the mother will facilitate telephone contact between the child and the father.
School Term Holidays
5. The period of the school term holidays shall commence from the first night of the last school day and conclude on the first school day and the time is to be calculated by the nights the child is not at school.
6. Half of the school holidays which will be in accordance with the Father’s allocated Rostered days in accordance with the Father’s Work Place Agreement.
7. In the event that the Father does not have rostered days allocated or annual leave then half the school holidays commencing in the first week of the school term.
Easter Term Holidays
8. The Father to spend time with the child in line with the father’s Work Place Agreement in relation to the Easter Break allocated Rostered Days Off commencing at 5.30 pm on the day before the Father commences his Rostered Days Off and concluding at 5.30 pm on the last day of the half of the school term holidays.
Special Occasions
9. On the child’s birthday if the child is not in the care of the father;
a. If a non school day from 10 am until 6 pm.
b. If a school day from 5.30 pm until 7.30 pm.
Christmas Day
10. Commencing 2018 from 3 pm Christmas Day until 3 pm on Boxing Day and each alternate year thereafter.
11. Commencing 2019 from 3 pm Christmas Eve until 3 pm on Christmas Day and each alternate year thereafter.
Mother’s Birthday
12. If the child is not in the care of the Mother then from Midday until 4 pm unless the Mother’s birthday falls on a Sunday whereby the child will remain in the Mother’s care.
Mother’s Day
13. If the child is not in the care of the Mother then from 10 am on the Sunday and the child to remain in the care of the mother.
Father’s Day
14. If the child is not in the care of the Father then from 5.30 pm on the last day of the school week until 5.30 pm on the day before the commencement of the school week.
...”

Additionally, the father sought an order in these terms:-
“In the event that the Court finds that the Mother has breached these Orders then the child will be relocated to live with the Father forthwith.”
The Court states at the outset it will not make such an order. Such an order does not promote the child’s best interests and should never be made in these terms. What is an appropriate parenting order at any given time and in any given circumstances needs to be determined in context and at the relevant time.
In response to the father’s application, the mother sought it be dismissed and that the father pay the mother’s costs of the proceedings. As will be seen from these reasons, there is no legislative basis to depart from the usual approach of each party pay their own costs.
The father relied on the following affidavit evidence:-
a)affidavit sworn by Ms M, the paternal grandmother, on 1 November 2016;
b)affidavit sworn by Ms R, the father’s maternal aunt, on 1 November 2016;
c)affidavit affirmed by Ms M, the father’s sister-in-law, on 15 September 2016;
d)affidavit affirmed by Mr O, the father’s employer, on 16 September 2016 (not challenged by the mother);
e)affidavit affirmed by Dr L on 26 July 2018; and
f)affidavit affirmed by him on 26 July 2018.
Each of the father, his mother, aunt, sister-in-law and Dr L were cross-examined by Counsel for the mother.
The mother relied on the following affidavit evidence:-
a)affidavit sworn by her on 30 July 2018; and
b)affidavit sworn by her on 7 August 2018.
The mother was cross-examined by Counsel for the father.
Introduced into evidence by consent was the Family Report prepared by family consultant Ms J dated 28 May 2018.

The hearing

The mother made the following significant concessions during the hearing. The mother agreed to the following:-
a)If [X] was to continue living with her, he should spend three weekends out of four with his father. Change-over could remain at McDonald’s in Suburb A, a mid-point for the parties. This concession caused the Court to re-frame some of the orders, for instance, Mother’s Day/Father’s Day to ensure that [X] spent at least every fourth weekend with his mother.
b)The father having sole parental responsibility in relation to medical issues in respect of [X]. The Court notes that this was not an order sought by the father but was one he was happy to consent to. It addressed his concerns, and the evidentiary material that supported the making of this order.

Evidence

Statements of fact in these reasons are findings of fact on the balance of probabilities, save where the context indicates otherwise.

Ms J

Ms J, family consultant, prepared a family report in these proceedings dated 28 May 2018. Her recommendations were as follows:-
“Option 1 – if it were found that it were in [X]’s interests to remain with his mother:
69. It is recommended that [X] live with his mother and that the parents have shared parental responsibility.
70. It is recommended that [X] spend substantial and significant time with his father.
Option 2 – if it were found it was in [X]’s interests to live with his father:
71. It is recommended that should the Court order a change in residence then [X] to live with his father and spend significant and substantial time with his mother.
Regardless of who [X] primarily lives with, the following is recommended:
72. That each parent give consent for all doctor’s or hospital’s to speak with the other parent and all information be communicated to the other parent in the case of any illness or injury to [X].
73. That both parties use only one doctor (or medical centre) and one Paediatrician in relation to all of [X]’s health needs in their respective areas. That all information in relation to [X]’s health be shared between these two doctor’s (or medical centres) and Paediatrician’s.”
Ms J described [X] as a “well groomed, initially shy and confident young child who appeared to be meeting his developmental milestones”.[2] He shares a “special relationship with his younger half-brother [Y]”.[3] Ms J observed [X] to have, in general terms, a good and loving relationship with both his parents. She noted [X] was well and appropriately cared for by his mother, save that Ms J indicated she believed there was an element of “attention seeking” in the mother’s frequent attendances on medical professionals in respect of [X]’s health. Ms J opined that the mother may be doing so to satisfy some sort of mental health difficulty of her own.
[2] Family Report prepared by Ms J, dated 28 May 2018, 52.
[3] Ibid 58.
Ms J’s evidence as contained in the s.62G of the Act report prepared by her was, relevantly, as follows:-
“63. … In his mother’s care, [X] would experience the least amount of change. His mother has always provided primary care for him and in her care he gets to enjoy the very significant relationship he has with his brother. However, it is also likely that given her past practices, Ms Reginald will continue to find reasons to limit the time [X] spends with his father, either through her possible misuse of the medical system or through blocking time through her misunderstanding of the Orders potentially jeopardising the relationships he has with both parents.
…
65. The over medicalisation of [X] is concerning and if unaddressed could see him present for unnecessary medical interventions throughout his childhood. This has both a physical and psychological impact. Physically, he may not be able to discern good health from poor and psychologically it may become a maladaptive strategy to get attention. If this is not addressed the outcomes could be poor for him.
66.In his father’s care, [X] would experience significant change. It would require a move from his current place of residence to Suburb B. This would see a change of school, a loss of his sibling relationship and the absence of his mother who has been in his life on a daily basis since birth. He would also potentially be exposed to multiple caregivers given his father’s full-time work requiring Mr Reginald to have the knowledge and capacity to ensure that he can meet all of [X]’s needs at a time of significant crisis for him. However, it would also provide [X] with the opportunity to be able to enjoy a relationship with his father. Mr Reginald may be able to support a more functional co-parenting relationship with Ms Reginald and it is also possible that Mr Reginald would be better placed to facilitate a relationship between [X] and his mother than Ms Reginald has been in reverse. Furthermore, it is less likely that there would be the number of medical interventions for [X] in his father’s care. These are all credible reasons to consider a change of primary care as it is likely that in his mother’s care his relationship with his father will continue to be blocked to some extent.
…
68. [X] clearly needs a relationship with both parents. In the absence of significant risk there is no good reason for this not to occur. Ideally, if his mother could facilitate a relationship between him and his father, this would be a preferable option due to his mother having been his primary carer and the sibling relationship he has in her care. However, if it were found that she was unable to promote that relationship, then consideration would need to be given to the short term disruption to [X]’s life for the longer term gain of being able to have both parents engaged in his life. Two options will be provided by way of recommendations to reflect the benefits of each proposal.”
Ms J was cross-examined in the proceedings. Some considerable part of that went solely to the issue of the many medical attendances undergone by [X] whilst in his mother’s care. To address that issue the Court made orders in line with those proposed by Ms J and which were not, in any event, opposed by the parties. Otherwise, Ms J raised as an issue for the Court’s consideration, the mother’s promotion of [X]’s time with his father which the Court has considered as set out below.

Consideration

Matters which are to the fore in this litigation are as follows:-
a)The parties do not live in close geographical proximity, rendering any shared care arrangement impractical. The mother relocated to Town P in [date] 2014. The father lives in the former matrimonial home in Suburb B. The travel time between the two residences is approximately two hours and twenty minutes. This provides no real opportunity for mid-week time spent with, which both parties concede.
b)The father is a [occupation omitted] employed in a full-time capacity with four weeks of paid annual leave available to him in the Christmas/January period. Additionally, he is able to take unpaid annual leave which renders hollow his claim that he is unable to take leave in the term school holidays. The mother on the other hand is engaged in full time home duties and the caring for two young children. She is always available to care for the children. Because of this, the father requires, in part, that her care arrangements work around his work commitments. In the other part he requires her consent to extended family members on his side caring for [X] in circumstances where the mother is both available and desirous of looking after the child. The father has wanted time spent with [X] in small allocations that disrupt the orderly flow of the mother’s household and regular commitments of the mother and children, and add to the burden and costs of travel.
c)The father’s work commitments require that he leave his home at around 6.00am to 6.30am in the morning, and return to the home around 4.30pm to 5.00pm for nine days in each fortnight taking into account the father’s rostered day off. The father proposes that his extended family would assist in the care of [X] where necessary, both before and after school. Such care would involve the father delivering [X] to his sister-in-law’s home before school; his mother attending at his home; and/or his aunt attending at his home before school, and one of those persons providing after school care in some combination with the school after care service. The father offered Ms M as a care-giver, for care both before and after school in circumstances where she lives some 20 minutes drive from the father’s home and works five days a week, at least 8 hours a day. Her evidence was that she currently leaves for work between 5.00am and 5.30am and returns home between 5.00pm and 5.30pm in the evening. She claims however that her hours are flexible. If she needs to start later, she does and she would be willing to take annual leave. This evidence had an air of impracticability and implausibility about it. Certainly the paternal grandmother could assist the father on four days a week but this stands against the constant availability of the mother to care for [X] in circumstances where they live in the same home and the arrangements see [X] being in the care of a parent.
d)[X] is now aged seven years and completing grade one. He has lived with his mother since the parties’ separation in 2014. That is almost five years. [X] has a close relationship with his half-brother [Y] born 2014, who is now aged four years. The mother has been [X] and [Y]’s primary care giver for their entire lives. The family unit of the mother and children has lived in Town P for in excess of four years. The father eventually conceded in evidence that to remove [X] from this environment would be a “huge change” for [X]. Nevertheless the father argued [X] would “adapt quite well”.
e)The father’s wishes to have a mid-year holiday period wherein [X] spends time with his extended paternal family during the day when the father is working. This will be of benefit to [X], who has a good relationship with the father’s family (as acknowledged by the mother) for so long as it is limited, especially given [X]’s current age. He will be away from his mother and brother for the purposes of forging a relationship with his father’s family which can otherwise readily occur in those times when the father is present also. For this reason the Court will make an order providing for time spent with for five and not seven, continuous nights where it is anticipated [X] will be in the care of extended family members over two days and being the time at which the father is working and travelling to and from work.
f)[X] has suffered from asthma-like symptoms over many years, and has various medical ailments as reported by his mother. From 1 January 2017 to 31 December 2017, [X] visited various doctors on 61 occasions, and in the previous year on 43 occasions. Some of these attendances represent instances where [X] required medical care, and others are more suspect. Dr L gave evidence in the proceedings. Dr L is a general practitioner in Melbourne. He provided medical assistance to the mother for over ten years and has more recently provided medical assistance to both [X] and the father. On the last occasion he saw [X], being in March this year, [X] presented, in his father’s care, and was healthy and well-nourished. That presentation accorded with the observation of [X]’s now paediatrician, Dr C. The parties agree, as does Dr L, that the recent involvement of Dr C in [X]’s care is a positive step. Dr L is more so of that opinion because in his view, the “ongoing conflict between [the] parents, at the current level, will result in long-term negative psychological impact” upon [X].[4] The evidence of the father supports the views expressed by Ms J that the mother has engaged in arranging excessive medical attendances for [X] which are not in his best interests. Part of that medical history has been weekly attendances, on different doctors, and the giving to [X] of substantial amounts of medication. Whilst there was some detailed evidence about this aspect of the matter, it is not useful to set it out here in the context of the mother’s concession that she would hand this responsibility in respect of [X]’s care to the father. She makes no admission however that [X] has attended unjustified medical appointments and been prescribed an excessive quantity of medications, and nor is there definitive medical evidence, from a doctor or doctors regularly seeing [X], to support those claims.
g)The father has for the most part failed to communicate with the mother directly. He engages his lawyer to correspond with her. He has sought changes to the arrangements as provided for in the final orders to suit his work roster. These changes have involved more travel and disruption of the mother’s plans. The father needs to provide the mother with certainty as to those times he shall care for [X]. This will lessen the conflict between the parties. The father should take at least two weeks of his annual leave with [X] in the Christmas/January period. Any further period will need to be separated, as [X] will need a return to his mother’s home and the company of his mother and brother for an interval given his young age. An annual alternation of Christmas Day can readily occur. The father will be able at that time to be present for the time [X] spends with him. Additionally, it is in [X]’s best interests to be able to spend further periods with his father in each of the term school holidays. Should the father elect to take leave in those times, then he should have a continuous seven day period of time. Should he not take leave, then he should have a period of five days, to include a rostered day off and weekend where [X] could spend the remaining two day period in the company of his extended paternal family. In particular, the mother’s evidence that she “would be more than happy for [the father’s] mum to look after [X]” indicates a level of acceptance by her that it is necessary for [X] at this stage to further develop his family relationships on his father’ s side.
h)Whilst the father argues the mother does not support his relationship with [X], and Ms J shares those concerns to some extent, the mother’s evidence is that the father is a “terrific” father, a word used by Counsel and agreed to by the mother and it is clear the mother has confidence in the father’s care of [X]. Over two years have passed since the mother’s breach of orders of the Court and the mother has agreed to extend [X]’s time with his father at this stage in his development. The mother wishes for some direct communication between she and the father in respect of [X]’s needs and arrangements. She is frustrated by his approach which appears non-conciliatory. Both parties have been non-conciliatory over time. For [X]’s sake, their conflict needs to lessen. Providing in the orders for more defined times, which take into account the travel impost for [X], should reduce the parties need to disagree with each other or seek clarification or alteration of the orders. The absence of a communication book should also assist, it merely adding to the conflict and providing an excuse not to directly communicate.
[4] Affidavit of Dr L affirmed 26 July 2018, 134.
In determining the best interests of the child, the Court must consider the matters set out in s.60CC(2) and (3) of the Act. The Court is mindful of these mandatory considerations when examining the evidence contained in these reasons. There are no risk factors that present to the child and/or the parties to these proceedings. Both parties love and cherish [X] and [X] is happy and thriving in the current arrangement. The Court is not satisfied that the mother fails to support the child’s relationship with his father. She sees that relationship evolving in terms of time spent with in accordance with [X]’s changing needs and capacities. What has occurred is that she has struggled, in particular in earlier times, to deal with the parental conflict. It would be detrimental to [X] to change his living arrangements, in particular given his sibling relationship and attachment to his primary care-giver, an important part of his childhood development. [X]’s expression of any wishes is mostly absent and is not given any weight given his lack of maturity as a consequence of his age and particular to him, stage of development.
The Court makes orders which, on the evidence, promote the best interests of the child.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 30 November 2018

[2018] FCCA 3225

30 November 2018

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Family Law

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