Rowe & Osborne
[2022] FedCFamC2F 1072
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rowe & Osborne [2022] FedCFamC2F 1072
File number(s): SYC 1714 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – parenting – application for final orders – Father seeks graduated increase of time with child – Mother seeks different graduated time – Mother seeks sole parental responsibility – Father seeks equal shared parental responsibility – Mother seeks change of child’s surname – where substantial and significant time with the Father, equal shared parental responsibility and hyphenating the child’s surname is in the best interests of the child Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65Y and 65Z
Births Deaths and Marriages Registration Act 1999 (NSW) s22
Cases cited: A & A & The Child Representative [1998] FamCA 25
Beach and Semmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
G & C [2006] FamCA 994
Godfrey & Sanders (2007) FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Johnson & Page [2007] FamCA 1235
Lysons & Lysons (2019) FamCAFC 29
M v M (1988) 166 CLR 69
Mahony & McKenzie (1993) FLC 92-408
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Napier & Hepburn [2006] FamCA 1316
Reagan & Orton (2016) FamCA 330
Tinley & Colton [2020] FamCA 1015
Division: Division 2 Family Law Number of paragraphs: 241 Date of hearing: 17, 18, 19 May 2021 Place: Sydney The Applicant: The Applicant on his own behalf Counsel for the Respondent: Mr Apelbaum Solicitor for the Respondent: Clayhills Escobar Solicitors Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1714 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROWE
Applicant
AND: MS OSBORNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.That the parties (“parents”) have equal shared parental responsibility for the child X ROWE born in 2014, to be known upon the making of these orders as X OSBORNE-ROWE born in 2014 (“the child”).
2.That the child live with his Mother.
3.That the child spend time with his Father as follows:
(a)From 10:00AM on Saturday until 5:00PM on Sunday on the weekends of 20 and 21 August 2022, 3 and 4 September 2022, 17 and 18 September 2022, 1 and 2 October 2022 and 15 and 16 October 2022;
(b)From the end of school (or 3:00PM if not a school day) on Friday until 5:00PM on Sunday on the weekends beginning 28 October 2022, 11 November 2022, 25 November 2022 and 9 December 2022;
(c)From 2:00PM on 25 December 2022 until 5:00PM on 28 December 2022, from 2:00PM on 8 January 2023 until 5:00PM on 11 January 2023 and from 2:00PM on 22 January 2023 until 5:00PM on 25 January 2023;
(d)From the end of school (or 3:00PM if not a school day) on Friday until the start of school (or 9:00AM if not a school day) the following Monday on the weekends beginning 3 February and 17 February 2023;
(e)From the end of school (or 3:00PM if not a school day) on Friday until the start of school (or 9:00AM if not a school day) the following Tuesday on the weekends beginning 3 March 2023, 17 March 2023, 31 March 2023 and 28 April 2023, provided the Father is by 3 March 2023 residing in the Sydney Metropolitan Area south of Region B and the Region C or in the Region D north of the City E CBD (“the defined Sydney area”) and if the Father is by 3 March 2023 not residing in the defined Sydney area then such times will end at the start of school (or 9:00AM if not a school day) on the following Monday;
(f)From 3:00PM on 9 April 2023 until 5:00PM on 13 April 2023;
(g)Commencing from Friday 12 May 2023, each alternate weekend during school term time from the end of school (or 3:00PM if not a school day) on Friday until the start of school (or 9:00AM if not a school day) the following Wednesday, provided the Father is by 12 May 2023 residing in the defined Sydney area and if the Father is by 12 May 2023 not residing in the defined Sydney area then such times will end at the start of school (or 9:00AM if not a school day) on the following Monday;
(h)From and including the school holidays at the end of Term 2 in 2023, one half of the Term 1, 2 and 3 school holidays being from the end of the child’s school attendance for the term until 5:00PM on the middle Saturday of such school holiday for school holidays that start in an odd-numbered year and from 5:00PM on the middle Sunday of the school holidays until the child commences school attendance in the new term for school holidays that start in an even-numbered year;
(i)During the school holidays at the end of Term 4 in 2023 on a week about basis, being for the first, third and fifth weeks of that school holiday;
(j)From the end of Term 4 in 2024, for half of the end of Term 4 school holidays, being for the first half of such school holidays that start in an odd numbered year, commencing from the end of the child’s school attendance in Term 4 until the middle day of the school holidays, and for the second half of such school holidays that start in an even-numbered year, commencing from the middle day of the school holidays until the child commences school attendance in the new school year;
(k)Notwithstanding any other order, and commencing from 2023 onwards, from 2:00PM on 25 December until 5:00PM on 26 December; and
(l)At such other times as may be agreed between the parents in writing from time to time.
4.That the child’s time with his Father during school term time under order 3(g) shall cease during all school holidays and will resume on the next weekend after the recommencement of the child’s school attendance after school holidays that start in an odd numbered year, and on the second weekend after the recommencement of the child’s school attendance after school holidays that start in an even-numbered year.
5.That notwithstanding any other order, the child shall be in his Mother’s care from 2:00PM on 24 December until 2:00PM on 25 December in each year.
6.That all communications between the parents in relation to matters concerning the child’s welfare, both long-term and short-term, shall be at all times polite and respectful.
7.That the child shall be named for all purposes X OSBORNE-ROWE and the parties shall forthwith do all things necessary to have the child’s name so registered by the Registrar of Births, Deaths and Marriages (under Part 2 of the Public Sector Management Act 1988 (NSW) (“the Registrar”).
8.That pursuant to section 22(3) of the Births Deaths and Marriages Registration Act 1999 (NSW) the Registrar shall register the name of the child currently registered as “X ROWE” born in 2014 as “X OSBORNE-ROWE”.
9.That any changeovers at the start or end of the child’s time with his Father that do not take place at the child’s school shall take place at the Mother’s place of residence.
10.That each of the parents is entitled to attend all events involving the child such as sporting fixtures and extracurricular activities that allow for parent attendance or participation, and school functions and events that allow for parent attendance or participation, and the parent who has the child in his or her care on the day of such event will be responsible for the day-to-day care of the child at the event, including the child’s transportation to and from the event, unless otherwise agreed between the parents.
11.That the child shall communicate via FaceTime or Skype or telephone call with the non-carer parent on Thursday and Sunday at some time between 6:00PM and 7:00PM with the method of communication being at the choice of the non-carer parent and initiated by the non-carer parent, with the carer parent made aware a reasonable time beforehand of the selected method of communication.
12.That the Mother may, upon giving the Father at least four weeks notice beforehand, swap the child’s weekend time with his Father for another time within a four week period.
13.That at all times that the child is in a parent’s care, that parent shall adhere to all dietary requirements for the child as recommended from time to time by the child’s health professional or professionals.
14.That both parents shall do all things necessary to ensure that the child has a current Australian Passport at all times until the child reaches 18 years of age.
15.That each of the child’s parents may take the child outside of the Commonwealth of Australia for holiday travel, on such conditions as are agreed between the parents in writing from time to time, and in the event that there is no such agreement, upon the following conditions:
(a)That such travel is during a school holiday period and during the time the child would otherwise be spending with the travelling parent pursuant to these orders, unless otherwise agreed between the parents as to a longer period of time;
(b)That at least three months prior to the first day of travel the travelling parent provides the non-travelling parent with an itinerary including at least the proposed dates of travel and the countries to which it is proposed that the child will be travelling and keeps such itinerary updated by notifying the non-travelling parent of any changes;
(c)That the travelling parent provides to the non-travelling parent a copy of all airline tickets or cruise tickets to be used by the child during the travel;
(d)That prior to the child’s departure the travelling parent provides to the non-travelling parent a copy of a comprehensive travel insurance policy covering the travelling parent and the child;
(e)That at least 14 days prior to the first day of travel the travelling parent provides to the non-travelling parent a contact telephone number on which the child can be contacted while travelling, and such address or addresses as are then known, and provides any updated information in relation to such address or addresses as same becomes known;
(f)That during any such period of travel the travelling parent continues to comply with order 11 in relation to communication between the child and the non-travelling parent; and
(g)That during all periods of non-travel, the child’s passport shall be held by the Mother and the Mother shall provide the child’s passport to the Father within a reasonable time in relation to any necessary use of the child’s passport in making arrangements to travel and in relation to travel departure, and the Father shall return the child’s passport to the Mother within five days of the child returning to the Commonwealth of Australia from travel.
16.That each parent is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of or within the hearing of the child.
17.That each parent is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
18.That each parent is restrained from discussing these proceedings or any issue arising out of these proceedings with the child, except as is necessary to inform the child about and explain to him these orders without approving or critical comment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Rowe & Osborne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction
These are final parenting proceedings between Mr Rowe, the Applicant Father (‘the Father’) and Ms Osborne, the Respondent Mother (‘the Mother’) regarding their son, X born in 2014.
The Father was born in 1970 and was 50 years at the time of the hearing.
The Mother was born in 1976 and was 44 years at the time of the hearing.
X was a few months shy of seven years at the time of the hearing.
The parents never married. There is dispute as to when the relationship and cohabitation commenced, the Father asserting that the parties entered into a relationship in 2012, and the Mother asserting the parties commenced cohabitation in 2011. Nothing turns on this issue.
The Father asserts that the parties separated in February 2015. The Mother asserts that separation took place on a final basis on November 2014. X was either 3 months (on the Mother’s version) or 5 months (on the Father’s version) of age at the time the parents separated. X remained at all times in his Mother’s full time care.
The Father appeared on his own behalf at the final hearing.
Mr Apelbaum of Counsel appeared for the Mother on final hearing.
Mr Jackson of Counsel appeared for the Independent Child’s Lawyer.
The final hearing of this matter took place over three days in May 2021.
Judgment was reserved in June 2021 after a timetable for written submissions was made.
Proceedings
The matter was commenced by the Father filing his Initiating Application on 19 March 2018.
The Mother filed her Response material late, on 7 May 2018, having been served on 25 March 2018.
The matter then came before his Honour Judge Harper (as His Honour then was) on 21 May 2018 for first return. His Honour ordered that the parties attend a Child Dispute Conference with a Family Consultant. The conference took place on 25 July 2018 with Ms F. The Child Dispute Conference Memorandum to Court of that date was in evidence at the final hearing as Exhibit ICL1.
When the matter was next before the Court on 27 July 2018 an order was made for the Father to spend time with the child on two occasions each calendar month for a period of up to 2 hours “at such times and on such dates that may be arranged with G Contact Centre, Suburb H”. The parties were ordered to use a communication book for the purposes of making arrangements for the child. The Father was ordered to enrol and complete the “PPP” or “123 Magic” parenting course. A Family Report was ordered, and the matter was listed for an interim hearing on 20 November 2018, with a further mention on 27 September 2018. At that mention date, an order was made for the appointment of an Independent Child’s Lawyer (‘ICL’) “on an urgent basis”.
By the next occasion the matter was before the Court Mr Brian Samuels had come into the matter as the ICL for X.
On 20 November 2018 the matter was before Her Honour Judge Henderson (as Her Honour and was) and an interim order was made by consent that the child live with his Mother and for arrangements to be made for the child to be assessed by a paediatrician, with a “global paediatric assessment report” to be prepared at the equal cost of the parents, to include a full assessment the child’s dietary needs.
Interim orders were further made, not by consent, that:
(a)The Father spend unsupervised time with the child each alternate Saturday and Sunday from 10:00AM until 2:00PM commencing on 1 December 2018;
(b)Changeovers to occur at G Contact Centre, Suburb H at the equal cost of the parents and if G Contact Centre, Suburb H was unavailable changeovers were to occur at McDonald’s at Suburb H.
(c)The Father spend unsupervised time child each alternate Saturday and Sunday 10:00AM until 5:00PM commencing on 9 February 2019 with changeovers to occur at Suburb J McDonald’s.
(d)The Mother was to “provide the father with a list of foods and other items that the child may have difficulty consuming as a result of the child allergies.”
There is no evidence that the child has ever suffered from any allergies.
The Family Report ordered on 27 July 2018 was prepared by Family Consultant Ms F, dated 6 November 2019, and was released by an order made that day. The Family Report was Exhibit ICL2 in the hearing.
The matter was listed for final hearing for three days from 17 to 19 May 2021 and the hearing proceeded on those days.
Final Hearing
Documents relied upon by the parties
The Father relied upon the following documents:
(1)His Case Outline document filed 12 May 2021 that included a minute of the orders the Father sought at the commencement of the final hearing;
(2)His Further Amended Initiating Application filed on 17 July 2020;
(3)His affidavit affirmed 17 January and filed 18 January 2021;
(4)The Affidavit of Service of Mr K sworn or affirmed 29 March 2018 and filed 16 April 2018;
(5)His written submissions filed on 31 May 2021 that included a minute of the orders the Father sought at the conclusion of the final hearing; and
(6)The following documents tendered into evidence and marked as exhibits:
(a)Exhibit A1, being a two page document with the heading ‘L Naturopath Low Reactive Anti-Inflammatory Diet’;
(b)Exhibit A2, being pages 11, 12, 32-36, 50-56 of the Father’s Tender Bundle, commencing with a photograph of the child entitled “ 18/12/2019”; and
(c)Exhibit A3, being a one page document headed ‘M Medical Practice’ dated 17 January 2019 addressed to Dr N from Dr O.
The Mother relied upon the following documents:
(1)Her Case Outline document that included a minute of the orders the Mother sought on final hearing;
(2)Her Amended Response filed 16 August 2019;
(3)Her affidavit affirmed and filed 18 January 2021;
(4)Her written submissions in reply to the written submissions of the Father; and
(5)The following documents tendered into evidence and marked as exhibits:
(a)Exhibit R1, being a three page letter from documents produced on subpoena by Region P Local Health District addressed to Dr O from Dr Q and Dr R;
(b)Exhibit R2, being 10 pieces of artwork by the child X, stapled together;
(c)Exhibit R3, being four pages paginated as pages 2 to 5 being text messages and emails between the Mother and the Father; and
(d)Exhibit R4, being correspondence between the Mother and the Father paginated as pages 2 to 5 inclusive, 6 to 13 inclusive, and 22 to 31 inclusive.
The ICL relied upon the following documents tendered into evidence and marked as exhibits:
(1)The ICL’s Case Outline document;
(2)The ICL’s minute of order provided to the Court at the close of the evidence; and
(3)The following documents tendered into evidence and marked as exhibits:
(a)Exhibit ICL1, being the Child Dispute Conference Memorandum to Court dated 25 July 2018;
(b)Exhibit ICL2, being the Family Report prepared by Ms F dated 6 November 2019;
(c)Exhibit ICL3, being a five page bundle of documents being two letters from Dr S dated 16 March 2016 and 15 August 2014; and
(d)Exhibit ICL4, being a 12 page bundle of documents from T School.
During the hearing the Father gave some updating evidence in chief and was cross examined by Mr Apelbaum for the Mother and by Mr Jackson for the ICL.
The Mother gave some updating evidence in chief, was cross examined by the Father and by Mr Jackson for the ICL, and was re-examined by Mr Apelbaum. By agreement, the Father’s cross examination of the Mother was interrupted by Mr Jackson’s cross-examination of her to ensure that cross examination on behalf of the ICL occurred before the Court received the verbal evidence of the Family Report writer, Ms F. In any event, the Father was able to complete his cross examination of the Mother before Ms F’s evidence.
I must note that the trial affidavit of the Father attached purported annexures A to Z and AA to AQ, without any annexures being referred to as such in the text of the affidavit. However, there was no objection on behalf of either the Mother or the ICL to that irregularity and I have accepted each of those pages as evidence.
Orders sought by the parties
The Father sought the following final orders, being his minute of orders in his written submissions:
[1] All previous orders between the parties be discharged.
[2] The parents share parental responsibility.
[3] The child spend equal time with mother and father.
[4]Immediately the child spend from 10:00AM Saturday to 5:00PM Sunday on alternate weekends with the father.
[5]From the date of judgement or 2 months from starting one overnight time with the father, from after school on Friday to 5:00PM Sunday on alternate weekends with the father.
[6]Then after each additional 2 months the child spend one additional night with the father, building up to 7 nights; from Friday after school to the following Friday before school.
[7]Regular care arrangements suspend during school holidays and are substituted with the child in the care of the father for the first half of the school holidays in odd-numbered years and for the second half in even-numbered years.
[8]If a changeover day is not a school day, changeovers shall occur at 10:00AM at the mother’s residence and 5:00PM at the father’s residence.
[9] Both parents have the opportunity to attend the Child’s school functions.
[10]The Parents shall do all things necessary to assist the Child communicating with either parent via FaceTime or Skype on all [sic] Sunday and Thursday between 5:30 PM and 7:00PM; or at other times agreed between the parents or as requested by the Child.
[11] Health and other particulars – refer ICL minute of orders all of part 2.
[12]The Mother be restrained from teaching, referring or causing the Child to be registered anywhere, by any other [sic] than [X].
[13]Relocation of the Child from [Region AJ] NSW shall only be made by consent between the parties in writing. If agreement cannot be made, then it shall be resolved by order of the court before any relocation.
[14]The parents agreed that the other may temporarily take the Child outside of the Commonwealth of Australia and must be provided with the Child’s passport for the purpose of such travel on such conditions as are agreed between the parents in writing, and failing agreement, upon the following conditions being met:
(a)the travel is during a school holiday period and during time the Child would otherwise spend with the travelling parent pursuant to these Orders;
(b)the Child is only to visit (even by way of transit or stopover) countries that are signatories to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
(c)the travelling parent provides the non-travelling parent with a draft itinerary, including at least the proposed dates of travel in the countries to which it is proposed that Child will be travelling, at least three months prior to the first day of travel;
(d)the travelling parent provides the non-travelling parent with a copy of any airline ticket to be used by the Child as well as an itinerary showing all countries that the Child will be visiting during the travel at least two months prior to the first day of travel;
(e)the travelling parent provides the non-travelling parent with a copy of a comprehensive travel insurance policy covering the travelling parent and the Child, as well as a contact telephone number and address/addresses in which the Child can be contacted throughout the travel at least 14 days prior to the first day of travel;
(f)the travelling parent pay all costs associated with travel.;
(g)During any periods of travel, the travelling parent must ensure that the Child contacts the non-travelling parent by telephone or other electronic means on at least two occasions per week;
(h)during periods of non-travel, the child’s passport shall be held by the father, and returned to the father within 14 days of the Child returning from overseas travel.
[15] Without admissions the parents shall be restrained from the following:
(a)Denigrating the other within the presence or hearing of the child or permitting or authorising any third-party from [sic] doing so;
(b)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting or authorising any third-party from [sic] doing so.
The Mother sought the following orders in her Case Outline for final hearing:
[1]That the Respondent have sole parental responsibility for the child [X] born [in] 2014 (“the child”).
[2]That the child live with the Respondent.
[3]That the Applicant spend time with the child on a fortnightly basis from the date of these Orders until the commencement of Term 1 in 2022 as follows:
a.On the first weekend after the making of these orders from 9.00am on Saturday until 12 noon on Sunday to be exercised in the [Suburb T] Region and changeover shall be at the Respondent’s home; and then
b.For a period of fourteen (14) weeks each alternate weekend from 9.00am on Saturday until 12 noon on Sunday to be exercised in the Sydney Metropolitan Region and changeover shall be at the Respondent’s home; and then
c.Each alternate weekend from 5.30pm on Friday until 12 noon on Sunday to be exercised in the Sydney Metropolitan region and changeover shall be at the Respondent’s home;
[4]That the Applicant spend time with the child from the commencement of school in 2022 during school terms as follows
a.Each alternate weekend from 5.30pm on Friday until 3.00pm on Sunday to be exercised in the Sydney Metropolitan Region and changeover shall be at the Respondent’s home.
[5]That the Applicant spend time with the child during school holiday periods at the end of Term 1, 2 and 3 from the commencement of school holidays after Term 1 in 2022 as follows:
a.For one week of the holidays and the Respondent Mother will be at liberty to nominate which week and notify the Applicant Father at least 28 days prior to the commencement of the school holidays.
[6] That the Applicant spend time with the child during the Christmas school holidays as follows:
a.Until the child is 10 years of age for a one week period at times to be agreed and failing agreement, to be from 27 December in even numbered years for one week and from 2 January in odd numbered years for one week;
b.After the child is 10 years of age for the second half of the school holidays.
[7]That each night the child is with the Applicant Father, the Father will facilitate a telephone conversation between the child and the Respondent Mother by telephoning the Mother between 6.00pm and 7.00pm.
[8]That the Respondent Mother may, upon giving the Applicant Father at least four week’s notice swap the Applicant’s weekend time for another time within a four week period.
[9]That at all times that the child is with the Applicant Father the Applicant Father shall adhere to any dietary requirements for the child as advised from time to time by the Respondent Mother.
[10]That the Applicant Father shall sign and return a passport application for the child within a period of one (1) week after it has been requested by the Respondent Mother.
[11]That the Respondent Mother shall be able to remove the child from the Commonwealth of Australia for a period of 6 weeks each year for the purposes of a holiday, provided that the Respondent Mother has notified the Applicant Father of her itinerary and make up contact time is arranged.
[12]That the child’s name be [X] [Osborne].
[13]That during such time the Applicant Father has the child, he will take the child to birthday parties and extracurricular activities.
The Independent Child’s :Lawyer sought the following orders:
[1] That the mother have Sole Parental Responsibility for the child.
[2]That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:
•any medical problems or illnesses suffered by the child whilst in each parents care;
•any medications that have been prescribed for the child;
•any specialist medical appointments;
•any significant social, school or religious functions which the child is to attend;
•the details of any sporting body(ies) that the child is involved in;
•the residential address of each parent and particulars of others who may reside with the child;
•any other important matter relevant to the welfare of the child;
•that each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
[3]That each parent is entitled to attend all events involving the child including, but not limited to:
•sporting fixtures;
•extracurricular activities that allow for parent attendance or participation;
•school functions and events that allow for parental attendance or participation.
•And the parent who has the child in their care on the day of such activity will be responsible for the day-to-day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
[4]That both parents be permitted to liaise directly with the child school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
[5] That the child live with the mother.
[6] That the child spend time with the father as follows:
(a) During school terms and on a fortnightly basis:
(i)For the first period of two months – from alternative Saturdays at 11:00AM until the following Sunday at 5:00PM, whereupon the living place of the child shall be at the father’s cousin [Mr U’s] home currently located at [Suburb V], or otherwise some other venue as agreed.
(ii)Thereafter for the second period of two months – from alternate Fridays after school until the following Sunday at 5:00PM, whereupon the living place for the child shall be at the father’s cousin [Mr U]’s home currently located at [Suburb V], or otherwise some other venue as agreed.
(iii)Thereafter for the third and final continual period – from alternate Fridays after school until the following Monday before school.
(iv)In the event that the father permanently relocates to the Sydney Metropolitan area or the [Greater Region E] area no further south than [Suburb W], the father’s time extend to 4 nights per fortnight, commencing no earlier than 2 months after the commencement of the time referred to in Order 6(a)(iii).
(b)During school holidays, to commence after the completion of the second period referred to above:
(i)For one week in the shorter school holidays, to be the first week of such holidays commencing after school on the last Friday of the previous school term and concluding at 5 PM on the second Saturday of the school holiday; and
(ii)On a week about basis during the first available Christmas holidays, being the first, third and fifth weeks of such holidays, from Saturday at 1 PM until the following Saturday at 1 PM (save and except a suspension of time to permit the mother’s time with the child from Christmas Eve at 2 PM until Christmas Day at 2 PM), and, thereafter, from the second available Christmas holidays, being the first half of such holidays in December years ending in an odd numbered year (save and except a suspension of time to permit the mother’s time with the child from Christmas Eve at 2 PM until Christmas Day at 2 PM) and the second half in December years ending in an even-numbered year;
(iii)In relation to December years ending in in even-numbered year, from 11:30 AM on Christmas Day until 7:30 PM on Boxing Day.
(c)The changeover venue shall be, if available and open, the child’s school, and otherwise, the mother’s home.
[7]Telephone or face time communication between the child and the father shall be at dates and times and for such period as agreed to be [sic] the parties and in absence of such agreement each Tuesday and Thursdays between 4:00PM and 5:00PM.
[8]The parties shall do all things to ensure that the child’s surname be known as “Rowe-Osborne”.
[9]Both parties shall be able to remove the child from the Commonwealth of Australia for an overseas holiday for a period consistent with the time allocated for school holidays or otherwise agreed for an extension of such time, provided that the party travelling has provided the other party with his or her itinerary.
[10] That the child is passport shall be in the possession of the mother.
The Evidence
The parents began their cohabitation in 2011 in Sydney. X was born in 2014. It seems that the parents resided apart for much of the time the Mother was pregnant with X, but still regarded themselves as a couple. The Mother says the parents separated in November 2014 when X was three months old and the Father says they separated in February 2015 when X was five months of age.
The parents had moved from Sydney to City Y on 15 September 2014 to live at Z Street, City Y. The Mother asserts that the parties were separated under the one roof in City Y from November 2014 until February 2015 when she left and moved with X to live with the maternal grandmother, Ms AB, at Town AC in the Region AD west of Sydney. The Father asserts this move as the parties’ separation.
The Father has remained living at City Y since the separation. The Mother resided with her mother at Town AC until 14 January 2017 when she relocated herself and X to a unit she purchased in Suburb T, where she remained living up to the final hearing.
The Mother complains of the Father’s behaviour and character, by inference throughout their acquaintance, but her trial affidavit evidence relating to their period of cohabitation asserts only the following:
(e)That the Father perpetrated family violence within the meaning of the Family Law Act 1975 (Cth) (‘the Act’) by, “often throwing my items against the wall and breaking them. He would then blame me for his actions. Mr Rowe often laid in bed for days at a time and completely withdraw [sic] from me and from X.” I note that on the Mother’s evidence such conduct in relation to X could only have been during his first three months of his life; and
(f)That the Father was disinterested in caring for X as a baby and did not assist her in caring for X, and on an occasion when he was caring for X in the bath he left him unattended in the bath to take a business call and walked out of the bathroom, causing the Mother to have run in to be with X.
Paragraph 59 of the Family Report contains the only other evidence in chief by the Mother about the Father’s conduct during their cohabitation. The report writer notes “she alleged that he would leave her stranded on the farm for days with no ability to leave.” During cross examination the Mother clarified that the report writer had misunderstood her and that she had asserted that the Father had left her stranded at the City Y home whilst he was at the farm.
The report writer also records an assertion by the mother that the Father, “would not allow her to leave the bedroom to go to the toilet” though it is not clear whether it is a report of the Mother referring to a single incident or a course of conduct. She also notes the Mother asserted that she felt “terrified on occasion when Mr Rowe appeared to be intentionally driving recklessly and through red lights with her in the car in a deliberate attempt to scare her”, though the inclusion of the word “appeared” leaves open the possibility of an erroneous perception of the incident by the Mother.
The Father denies all allegations that he has perpetrated family violence affecting the Mother or X. These denials are found in his trial affidavit, in the Family Report and during his cross examination.
The Father makes allegations that the Mother perpetrated family violence against him during their cohabitation, saying in paragraph 20 of his trial affidavit that the Mother:
…was verbally and physically abusive, threatening me with false allegations of abuse that she would make to police to have me removed from the house, and she gouged my arm when I would not argue with her.
The report writer notes in paragraph 39 of the Family Report, when detailing the Father’s criticisms of the Mother’s conduct during their cohabitation, that “he alleged that she has also grabbed him on one occasion.”
In paragraph 31 of his trial affidavit, the Father asserts that, “on occasion in 2013 and 2015 Ms Osborne gouged my arm when I refused to argue with her. On another occasion in 2013 Ms Osborne medicated me without my consent.” There is no evidence elaborating on the accusation of medicating without consent in either the Father’s trial affidavit, the Family Report or during the parties’ verbal evidence, though it features in cross examination of each party going to their almost complete lack of trust of each other.
During her cross examination the Father asked the Mother about an incident while they were living at City Y where she “became abusive and gouged me on the arm”, to which the Mother replied “I do recall that incident”.
Ms F noted in the Child Dispute Conference Memorandum to Court (Exhibit ICL1) that the Father alleged that the Mother “would smoke a joint most nights during their relationship”. Ms F further noted that the Mother “strongly disputes that she smoked cannabis during her relationship” with the Father and said that the last time she used illicit drugs was as a teenager.
During cross examination, the Father put to the Mother that she used marijuana during their relationship, with which she agreed. When he put to her that she told the report writer that she had not used marijuana during the relationship the Mother explained that she felt put on the spot in the interview and had not recalled her use of marijuana during the relationship “until I saw your email”. The email referred to is annexure “A” to the Father’s trial affidavit dated 10 February 2012.
There is no evidence that the Mother has used marijuana at any time after she fell pregnant with X. The Mother says in paragraph 51 of her trial affidavit, “I have not smoked marijuana since X was born”. I accept that she has not.
From his earliest months X had difficulties with constipation and the parents attended a local General Practitioner in the City Y area at some time between August and November 2014 to consult “about X’s apparent food intolerances and his lack of bowel movements.” Being then in his first few months of life X could not have been eating any great range of foods at the time. His subsequent history of dietary problems will be discussed later in these Reasons.
It is difficult to distil from the parties’ evidence the history of the Father’s time spent with X following separation and up to the making of interim orders in these proceedings. Though the parties disagree on specifics, it seems that for about a year and half X spent time with his Father supervised by his Mother about once every two months. The Father says that following the Mother’s move to live with the maternal grandmother in the Region AD he spent time with X at the maternal grandmother’s home, with which the Mother agreed during cross examination. The Father said that he, the Mother and X:
…went on holiday together and we took outings to restaurants, markets, historic houses, zoos, parks and festivals. I would look after [X] while [Ms Osborne] went shopping and she would let me take [X] to the park, but she would not allow me to take [X] to see my family or relatives.
In her affidavit the Mother referred to a diary entry she made on 21 January 2016 referring to the Father during a discussion between them about her recovering her belongings,
He immediately flipped out yelling abuse. Told me I always provoke him to want to punch me.
On 19 May 2016 the Mother notified the Father that she intended to travel overseas to Location AE with X for a month from about 19 June to 23 July 2016. The Mother’s email included “if you’d like to organise a time to see him before and after we go just give me a call.” The Father raised some objections to X travelling and in relation to the duration of the trip and in consequence of the Mother refusing to provide him with an itinerary and contact details.
The Mother asserts in paragraph 4 of her trial affidavit that it was following the incident recorded in her diary on 21 January 2016 that she contacted the Suburb AF Contact Centre with a view to the Father’s time with X being on a supervised basis at that centre, but the communication to her from the Suburb AF Children’s Contact Centre, that is annexure “B” to her trial affidavit, would seem to indicate that her contact with the centre was in May or June 2016. This is further borne out by annexure “B” to the Father’s affidavit, being a print of an email from the Mother to the Father on 6 June 2016 advising him that she had “contacted Suburb AF Contact Centre to arrange supervised visitation for you and X on a fortnightly basis.”
The Mother’s assertion in her evidence is therefore that she decided that the Father’s time with X should be supervised at a contact centre because of what she regarded as his threatening statement to her noted in her diary on 21 January 2016. Whereas, the Father’s evidence is that it was in consequence of his refusal in May 2016 to consent to X travelling to Location AE with the Mother for a month that caused the Mother to require that his time with X be supervised at the Suburb AF Contact Centre.
It seems, though once again the evidence of both parties is unclear, that this led to a break in contact between X and the Father for about six months.
The Father says that from 3 December 2016 the Mother, X and he, “began again to spend time together visiting parks, beach, library, shopping and restaurants.”
Since the interim orders were made by Henderson J on 20 November 2018, and following the initial regime of 10:00AM until 2:00PM each alternate Saturday and Sunday between 1 December 2018 and the last occasion before 9 February 2019, the Father has been spending time with X each alternate Saturday and Sunday from 10:00AM to 5:00PM with changeovers occurring at the Suburb J McDonald’s, unless otherwise agreed between the parties. This time with X occurs in the Sydney Metropolitan Area as travel to and from City Y is not possible within these timeframes. One tragic consequence of the tyranny of distance and the limited time between the Father and X has been the passing of X’s paternal grandfather without having seen X for a long period of time.
In paragraphs 10 and 11 of her trial affidavit the Mother gives evidence that the Father made repeated attempts to reconcile with her and that she was the victim of his unwelcome physical advances – attempts to kiss her and attempts to hug her – in the period from 9 April 2016 to 26 December 2017, though in paragraph 10 she makes the all-inclusive statement:
Every time I see Mr Rowe he sexually harasses me and tries to physically touch me and kiss me. He says to X: “tell mummy to kiss me, tell mummy to hug me”.”
In paragraphs 14, 15 and 16 of her trial affidavit the Mother gives evidence of what she asserts is the Father’s neglect of X on occasions, taken from her diary notes that are annexed to the affidavit – she incorrectly asserts in paragraph 15 that an entry is 14 July 2018 when it is actually 14 July 2015 – and in paragraph 17 she refers to eight diary entries (copies of the originals at annexure “E”) of incidents between 11 October 2015 and 26 December 2017 of asserted lack of parenting capacity on the part of the Father when caring for X, but the evidence is so lacking in particularity that it cannot be taken as evidence of a lack of parental capacity or as going to a risk in relation to the Father.
In paragraph 33 of his trial affidavit the Father refers to some occasions in December 2016, March 2017, and November 2018 when he became aware of some injuries to X whilst in his Mother’s care. Once again, the total lack of any particularity and of any evidence linking the asserted injuries to X with neglect or lack of care by the Mother leads me to find that such evidence cannot be taken as lack of parental capacity on the part of the Mother or as going to any risk in relation to the Mother.
The most significant issue between the parents in relation to the Father’s care of X relates to X’s dietary requirements. X had problems with constipation from the first months of his life. The parents had consulted a general practitioner while they were still together in the late months of 2014. In March 2016 the Mother took X to a general practitioner at Town AC and was referred to a Consultant Paediatrician, Dr S at Town AH, who saw X on 23 May and 30 November 2016. The Medical Reports prepared by Dr S for each of those visits are Exhibit ICL3.
As a result of the consultations with Dr S, X was medicated with ‘Parachoc’, which the doctor noted had been effective in relieving the problem. At some time after those consultations the Mother had a consultation with a naturopath, who recommended a “low reactive anti-inflammatory diet” and that X have only one serve of wheat and one serve of sugar each day. The Father asserted during cross examination by Mr Jackson for the ICL that the Mother did not inform him that she was taking X to a naturopath and that she had never told him the name of the naturopath.
The Mother complains in her evidence that the Father did not follow that recommendation on occasions. Following the orders made by Henderson J on 20 November 2018 the parents attended with X at Region AJ Hospital on 5 June 2019 for a global paediatric assessment. Exhibit A3 is the referral from the Mother’s general practitioner to paediatrics at Region AJ Hospital. Exhibit R1 is a medical report, undated (as seems to be the habit of much of the medical profession) from Dr Q, Paediatric Registrar, and Dr R. The report notes:
He was previously on Parachoc for constipation. He has not required any aperients in the last two years since his mother has taken him to a naturopath. He is on a diet low in wheat and low in sugar with good effect. He now opens his bowels daily. He has no concerns nor do his parents, regarding his bowel motion.
And:
Overall, [X] seems to be doing very well. The diet recommended by his naturopath seems safe and balanced. We have encouraged [X] to have small amounts of wheat in his diet to allow for a tolerance when he is outside of the care of his parents.
And further:
It was a pleasure to see [X] and his parents in clinic today. Overall, he has no significant concerns. His constipation seems to have completely resolved.
Exhibit A1 is a two-page printed document from L Naturopaths headed “Low Reactive Anti-Inflammatory Diet”. During cross examination of the Mother by the Father the document was shown to the Mother and she described it as, “not a diet, it’s a guide in relation to the wheat to help you. As I told you, X’s diet is one serve of wheat per day and one serve of sugar per day.”
The Father asked the Mother, “when was the last time you sought assistance for X in relation constipation?” and the Mother answered “in June 2019”. When the Mother was asked by the Father, “when was the last time you complained to me about what I feed X?” she answered, “this year or late last year”. The Father asked “several months ago?” and the Mother replied “yes”.
On all the evidence, and mainly from the cross examination of each of the parties, it seems that the focal point for X’s diet is to avoid him having a reaction in consequence of food intolerance. X is to have, as far as possible, only one serve of wheat and one serve of sugar per day. That advice comes from the naturopath, not the paediatrician, but the paediatrician considered that the diet recommended by the naturopath had been effective.
The parents have conflicted over child support matters. The Father has paid his child support and was up-to-date in payments at the time the hearing, but the parties have been through the legislative processes with the Child Support Agency and the Administrative Appeals Tribunal in relation to applications for departure from the legislative formula assessments.
The parties have very little trust in each other, to the extent that the Father suspected the Mother of attempting to “poison” him by offering him cupcakes that he suspected were laced with marijuana in an attempt to trick him into a damning drug test result. The Mother’s evidence regarding this was that she was keen for him to try some cupcakes that had been cooked with X’s assistance for the purpose of giving X pleasure in seeing his Father eat the cupcakes he had cooked.
This brings me to the point.
Much of the parties’ evidence in chief, limited though it is, is an attempt to impugn the parenting capacity of the other parent. These attempts would seem to stem from a mutual dislike and distrust rather than any real belief that the other parent lacks appropriate parenting capacity to care for X. This is borne out by the orders sought by each of the parents. The Mother seeks that the Father have much less than what the Act refers to as ‘substantial and significant time’ with X on weekends during school term time. However, the Mother’s minute of order proposes that from the commencement of the school year following the final hearing in May, X spend one full week in each of the Term 1, 2 and 3 term holidays with his Father and two occasions of one full week with his Father during Christmas holidays, increasing to half the Christmas holidays once X turns 10 years of age. For the Father’s part, he considers that the Mother has adequate parental capacity to care for X on a week about basis through school term time and for half of all school holidays.
For that reason I do not consider it necessary to detail, even in summary form, much of the evidence in chief of the parties or their cross examination on that evidence.
I have considered the evidence of the parties in relation to the involvement of the Department of Family And Community Services (FACS) and the Joint Investigation Response Team (JIRT) with the parents and X and I do not need to traverse that matter. It does not represent risk.
It is clear from the evidence of both parties, in chief and in cross examination, that the Mother has on occasions made decisions of a long-term nature affecting X without consultation with the Father – for example the move to reside at Suburb T – whilst on other occasions consulting with the Father – for example on medical issues and education.
The Father complains of the Mother enrolling X in childcare without his knowledge and enrolling X under the name X Osborne when the name on X’s birth certificate is X Rowe. The issue of X’s surname will be dealt with later in these Reasons and the evidence relating that issue traversed at that time.
The Father complains of the occasions when the Mother removed X from the Commonwealth of Australia without his consent, referring to the overseas travel by the Mother and X in 2016 to Location AE and Country AK and in 2017 to Country AL. The Mother gives her evidence that she has “always advised Mr Rowe of my intention to travel” and such travel was prior to commencement of these proceedings by the Father on 18 March 2018, and accordingly, there was no breach by the Mother of sections 65Y or 65Z of the Act.
The Mother says that she would like to take X on an overseas holiday at least once a year, for up to one month in duration. There was some evidence during cross examination of each of the parties in relation to the Father’s concerns in the past that the Mother presented a possible flight risk, but ultimately the Father sought an order that both parents be able to take X for holidays outside the Commonwealth of Australia on certain conditions, including such travel being during that particular parent’s time with X under orders and excluding travel to non-Hague Convention countries. The mutuality of overseas travel orders is supported in the ICL’s minute of orders, whilst the Mother sought an order allowing only her to travel with X outside the Commonwealth of Australia.
On all of the evidence, I find that it is certain that the Father makes inappropriate comments in X’s presence in relation to the Mother and in relation to the Father’s perception of the Mother’s attitude to the father-son relationship. It is of particular concern that Ms F notes in paragraph 73 of the Family Report, “X said, “Daddy says to me Mummy is a liar.” X then said, “Mummy does not lie about anything, so Daddy is lying”.” When cross examined about this evidence by Mr Jackson for the ICL, the Father denied that he ever said to X that the Mother is a liar and when asked to explain X’s comment he said:
On the way to [Location AM] he was telling me about the trip to [Country AL] and he said “Mummy says that you prevented us from going overseas” and I said “that’s not true”. X said “what does that mean?” and I said “that something may not have occurred and it could be called a lie.” He’s heard the word “lie” and gone home and connected it, because he is a smart kid. When it comes to me he spends the first half-hour fact-checking what his mother has said to him and I try to explain things without denigrating his mother, there are orders not to denigrate each other, but it’s hard to keep the line between not denigrating and answering him and telling him how things are.
There is no evidence that the Mother has re-partnered.
In the Father’s examination in chief he gave evidence that in August 2020 he developed a relationship with Ms AN, whom he had known some 10 years previously, and that since September 2020 he had been staying at Ms AN two-bedroom apartment in Suburb W, a suburb north of City E, on weekends when he spent time with X. Ms AN is employed at the Employer AO. His evidence implied that he saw his relationship with Ms AN as a long-term relationship, referring to it as a “significant relationship”, and that though X was aware of his relationship with Ms AN he had not yet met her.
The Father had not given any evidence about his relationship with Ms AN in his trial affidavit and the Mother gave evidence that she first became aware of the relationship on the Sunday before the commencement of the final hearing in consequence of some comments made to her by X. He was cross examined about the relationship, but nothing emerged to indicate that Ms AN presented any element of risk to X.
The Father was cross examined extensively by Mr Apelbaum for the Mother about his failure to take X to the birthday of X’s good friend, AP. I do not find that the evidence surrounding that issue should have an impact upon what orders are proper to be made for the future parenting arrangements for X with X’s interests as the paramount consideration.
The Father gave some evidence of having concerns about X spending time at the home of his maternal grandmother when two of his maternal uncles may be present, in consequence of the Father’s knowledge of those persons’ past use of marijuana, but ultimately during cross examination he gave evidence that he was not opposed to X spending time with his maternal relatives.
In paragraph 7 of his trial affidavit the Father says, “I intend relocating for shared care of X.” In his oral evidence it became plain that he meant that he would travel to and remain in the Sydney Metropolitan Area during weekends when he was spending time with X for periods less than five or six successive nights and that he would relocate to live appropriately close to X’s school, Suburb T Public School, if his time with X necessitated him delivering him to school in the morning.
During the Father’s cross examination by Mr Apelbaum he was asked, “so if the court orders alternative weekends with you and X otherwise living with his Mother, you would remain in City Y?”, to which the Father replied “Not any more. I live with Ms AN.” When he was asked very shortly thereafter, “if the court orders that you spend time with X on alternate weekends where would you stay?” he answered:
With my cousin [Mr U] at [Suburb V] for the first several occasions, five minutes from where [X] lives, for the two occasions. Then after the first two nights, to [Suburb W] to stay for one night per fortnight the first few months then two nights per fortnight for a couple of months. I would introduce [X] slowly to [Ms AN] before he stays there.…I can’t take [X] from [Suburb W] to [Suburb T], it is 45 minutes, so once it goes to 4 nights I’d moved to [Suburb T] to live.
During the Father’s cross examination by Mr Jackson for the ICL he was asked, “if you are still living in City Y have you thought of X going with you to City Y for weekends?” The Father responded, “on a weekend to City Y and then back to Sydney? No, that’s too far, that’s 20 hours on a weekend. That’s too much. School holidays are different and we may do that on occasions in school holidays.”
Cross examination of the Father by Mr Jackson for the ICL was effective in having the Father acknowledge the significant lack of trust between the parents and the past difficulties with communication between the parents. It also highlighted the lack of particularity and detail in relation to the Father’s plans as to where he would live depending on what orders are made as a result of the final hearing for X’s time with each of his parents. The Father acknowledged to Mr Jackson that there had been a significant history of dispute between the parents in relation to X’s health needs relating to his diet, but that the dispute seems to have abated over the preceding 12 months. He also indicated in the cross examination that he was not opposed to the Mother going overseas with X for a holiday.
In cross examination of the Father Mr Jackson put to him, “the mother’s case outline seeks an order providing for you to swap weekends with four weeks’ notice. Is that a problem?” The Father responded “No – I think I suggested it.”
The parents have already consulted each other and discussed the high school to be attended by X in due course and have agreed that he will attend Suburb T High School. Paragraph 61 in the Family Report notes:
It does appear that the parents are able to interact amicably when they are required to have face to face interaction with each other. For example, at changeover and appointments for [X].
However, at paragraph 62 of the Report it notes, “both parents’ interviews would suggest that the co-parenting relationship remains poor and that there continues to be little trust between them.”
During cross examination of the Mother by the Father, he asked, “is there anything positive about me?” The Mother replied, “you keep turning up for X, trying to develop a relationship with X.”
Ms Connor notes in paragraph 43 of the Family Report, that the Mother said:
…that X is “excited” to spend time with Mr Rowe because X has an enjoyable day out with him. She said that X’s relationship with Mr Rowe continues to develop as does Mr Rowe’s “learning” about parenting and X’s needs…she conceded that X’s relationship with Mr Rowe is positive.
During her cross examination by Mr Jackson for the ICL, the Mother was asked, “is there anything positive in what the Father offers X?” The Mother replied “X is genuinely excited to see him and he comes home with stories of having had fun.”
Ms F notes in paragraph 48 of the Family Report that the Mother said that:
…she could also see the benefit for [X], having his Father residing close by. [Ms Osborne] said that it would be nice for [X], if [Mr Rowe] could be more involved in his school, after-school and weekend sports and activities (such as taking [X] to these and encouraging [X] in his training or games). She said, however, that she has no faith that [Mr Rowe] will actually relocate to Sydney for [X].
Remarkably, in paragraph 49 of the Family Report Ms F notes, “Ms Osborne appeared to believe that after the proceedings have concluded, Mr Rowe is likely to “disappear” and not see X again.”
The parents agreed during cross examination that the Father’s proposed order in relation to the parents communicating with X when he is in the other parent’s care, by FaceTime or Skype on Sunday and Thursday between 5:30PM and 7:00PM or at other times as agreed, was an appropriate order.
The Family Report and Ms F’s evidence
X was interviewed by Ms F for the Family Report on 19 August 2019 and was observed with both his Mother and his Father separately. At paragraph 66, Ms F noted that X presented, “as a playful and friendly child.” Unlike the usual arrangement, X did not spend the day of the Family Report interviews in the Court’s childcare, but:
…was instead looked after by his parents throughout the day, either going out for walks or waiting in the reception area sitting between them. This arrangement seemed to be the preference of both [X] and his parents. [X] was observed to happily go between his parents on the day, inviting them to both play hide and seek with him. [Mr Rowe] and [Ms Osborne] were observed to communicate and interact with each other amicably about the care and needs of [X] throughout the day.
When asked by Ms F if he wanted to spend more time with his Father, X said “he said it would change after my birthday” and indicated that the change would be that he would spend overnight time with his Father and suggested that this time would occur in City Y to enable him to visit his paternal family.
At paragraph 72 of the Family Report, X said he would like to spend overnights with his Father:
…though he suggested that his mother does not allow this. [X] said that he would like to spend overnight time with [Mr Rowe] because their time is limited to the “day” and because his father has told him that they do not get to spend enough time together. …[X] said he feels ready for overnight time with his father to commence soon. He commented, “I’ll miss my Mummy, but I’m a big boy, so I won’t miss Mummy (too much)”. [X] said that if he gets upset about missing his mother, he would hug his father. [X] said that if he has to wait to next year to commence overnight time with [Mr Rowe], he would feel “sad”.”
As Ms F commented in paragraph 81, “X’s interview would suggest that he has been influenced by Mr Rowe in regard to his parenting arrangement and it is considered that little weight should be placed on his views.”
Strangely, given all the evidence in the matter about the Mother’s concern that the Father does not follow the appropriate diet for X, paragraph 74 of the Family Report notes “X said that eating chocolate makes his tummy upset. He said that his Mother gives him chocolate each night.” There was no cross examination of either the Mother or Ms F about this.
In relation to the observation of X with his Father, Ms F noted in paragraph 77:
[X]’s time with [Mr Rowe] appeared lively and interactive and [X] seem familiar with his father joining in his play. This observation session suggests that [X] has a positive and comfortable relationship with [Mr Rowe], who interacted with [X] in a loving and attentive way.
For the observation session of X and his Mother Ms F noted at paragraph 79, “this observation session suggests that X has a well-developed and close relationship with Ms Osborne who interacted with X in a loving way.”
Significant excerpts from Ms F’s evaluation of X’s parental circumstances in the Family Report are:
[80][X] presents as a good-natured five year old who is well loved by his parents…it appears that [X] loves both of his parents. His relationship with his mother is considered more established and secure, noting that she has been [X]’s primary carer for the past five years and that [X] sought out his mother for emotional support on the day of the Family Report Interviews. [X]’s relationship with [Mr Rowe] appears to be developing closely and positively and [X] did not raise any concern in his father’s care.
[82]…It is important that both [Mr Rowe] and [Ms Osborne] follow any recommendations by health professionals regarding the assessed needs and benefit for [X] in regard to his diet.
[84]Should the Court determine that [Mr Rowe] perpetrated coercive controlling family violence towards [Ms Osborne], then it is recommended that he complete a men’s behaviour change course. Should the Court find, however, that the type of violence as alleged by [Ms Osborne] did not occur, then it is possible that [Ms Osborne]’s experience of [Mr Rowe] could be attributed to difficulties in her relationship with [Mr Rowe], the subsequent relationship breakdown and the poor co-parenting relationship.
Each of the incidents of family violence alleged by the Mother to have been perpetrated by the Father against her are denied by the Father in his evidence in chief. The incidents were put to the Father as bare allegations in cross examination both by Mr Jackson for the ICL and Mr Apelbaum for the Mother and denied, but not otherwise cross examined upon. That is by no means a criticism of either Counsel. As already stated in these reasons the allegations that relate to specific incidents are without detail. No corroborative evidence was presented on either side.
There is no basis for the making of a credit finding to the detriment of the evidence of either party. Accordingly, I will not make a finding that there has been family violence in this matter – even bearing in mind the Mother’s possible admission that she “gouged” the Father’s arm on some unspecified occasion because even that possible admission in terms of the applicable question and answer is not definitely an admission.
In paragraph 86 of the Family Report, Ms F noted:
The risks to [X] in having a parenting arrangement of significant and substantial time is that this may expose him to parental conflict. This risk is increased based on the poor co-parenting relationship between [Mr Rowe] and [Ms Osborne] and due to the very likely need for the parents to have an increased level of communication and co-operation between them about [X]’s needs. Children who are exposed to prolonged parental conflict may experience difficulties such as anxiety, depression, sleep problems, low self-esteem and school problems. They are also at greater risk of experiencing acute conflicts of loyalty.
Exposure of a child to parental conflict of any nature is harmful to the child. Exposure of a child to serious and protracted parental conflict, even where such conflict does not include physical clashes, can be crushingly harmful to a child’s personal development. However, on all of the evidence I do not find that the parental conflict between the parties, whilst real, is serious and protracted or that in terms of final parenting orders that set out a clear regime for X’s future parenting and minimise so far as possible the opportunities for parental conflict, that parental conflict between these parents is likely to continue on the level found in the past, let alone to escalate.
At paragraphs 87 and 88 of the report, Ms F noted:
…Other than [X]’s dietary needs, [Ms Osborne]’s concerns about [Mr Rowe]’s poor parenting skills appeared to the Family Consultant to be lacking in substance and detail. She appeared to have a limited capacity to consider the benefit to [X] in him having substantial time with [Mr Rowe] (and the paternal family) or having [Mr Rowe] considerably involved in [X]’s life.
…If [X]’s relationship with [Mr Rowe] continues to develop positively and [Mr Rowe] demonstrates an ability to continue to meet [X]’s needs, in the absence of risk, there is considered to be the potential for [X] to spend substantial time with his father, particularly, if [Mr Rowe] relocates to live close to [X].
Whilst the issue of risk will be addressed below when discussing the primary consideration of any need to protect X, I am able to find at this point in these Reasons that, on a full consideration of all of the evidence, and additionally consideration of the competing proposals of the parties and what such proposals imply about what each parent’s and the ICL’s views are in relation to risk, this is not a matter where there is any element of risk to X’s best interests in the care of either parent or of such person or persons as either parent chooses to assist them with care, absent any occurrences of overt parental conflict occurring in X’s presence or hearing.
Ms F noted at paragraph 89 of the Family Report:
This assessment supports, as the next step, the progression of [X]’s time to occur on an overnight basis (from Saturday morning until Sunday afternoon in alternate weeks).
The Family Report is dated 6 November 2019, 18 months prior to the hearing and, entirely through my fault and no one else’s, two years and nine months prior to the making of final orders and publication of these reasons. On the evidence, the Father’s time had not progressed to overnight time at the time of the final hearing. The Mother accepts overnight time, the ICL recommends overnight time. The question for the Court is only what progression of overnight time is proper with X’s best interests as the paramount consideration.
From paragraphs 91 to 93 of the Family Report, Ms F noted:
[91]Noting [X]’s young age, this assessment would also support [Ms Osborne]’s proposal that [X]’s commencement of overnight time, occur within the [Suburb T] area on the first few occasions.
[92]In the event that [Mr Rowe] does not relocate to live in Sydney, but has regular weekend overnight time with [X], it is recommended that the location of [X]’s overnight time with his father is a consistent venue for [X] (be this with friends or in a hotel). This is important to provide [X] some consistency and familiar environment in his parenting arrangement.
[93]… due to the potential for substantial time, it seems important that both parents be involved in significant decisions about [X]. The Family Consultant is unable to make a clear recommendation in relation to parental responsibility.
Ms F recommends that, if the Court is satisfied that the Father complies with X’s health needs, in the long-term X have a parenting arrangement of substantial time with his Father including half of each school holiday period, but that if the Court does have concerns that the Father does not comply with X’s health needs, then long-term X have parenting arrangement of spending alternate weekends and some time in the school holiday periods with his Father.
Ms F refrained from making recommendations in relation to the issues of parental responsibility, X’s surname, overseas travel by X and possession of X’s passport.
During cross examination by Mr Jackson for the ICL, Ms F gave her opinion that neither two nights per fortnight nor three nights per fortnight amounted to what she had referred to as substantial time in her recommendations in the Family Report.
In relation to how substantial time should be structured Ms F said that consecutive nights would allow X to relax into time with his Father. On condition that the Father was living in close proximity to X, Ms F said that she considered that a progression in X’s time with his Father by adding each extra overnight occasion after two months intervals was preferable in X’s best interest to the Mother’s proposal that there be a 10 month interval between each increase in overnight time, provided the overnight time at each step was positive for X. She also gave her view that there needs to be some graduation in school holiday time before reaching a stage of X spending seven consecutive nights with his Father.
In relation to the Father’s proposal that his time with X progress to a shared care arrangement during school term time, Ms F agreed with Mr Jackson that a circumstance of deep distrust between the parents would make an equal time arrangement difficult, as would ongoing conflict between the parents about X’s diet. Ms F confirmed that her recommendation was for substantial and significant time between X and his Father and not for a shared care arrangement, it being her view that as X’s Mother has been his primary carer all his life it would be too difficult for X in a shared care arrangement.
In cross examination of Ms F she confirmed that if the Court was satisfied that the Father would be guided by X’s dietary requirements as recommended by his health professionals, and particularly in keeping to one serving of wheat and one serve of sugar per day, she had greater confidence that a parenting arrangement of substantial and significant time between X and his Father was appropriate.
Ms F agreed with the proposition put by the Father that changeovers for X involving collection from school and return to school, rather than changeover at the Mother’s place of residence, was the preferred option so as to avoid as much as possible exposure of X to parental conflict.
During cross examination by Mr Apelbaum for the Mother, Ms F confirmed that in referring to “substantial time” between X and his Father she was referring to occasions being a combination of weekend days and school days. She also stressed in response to questions by Mr Apelbaum that the Father’s living arrangements – whether he remained living in City Y or moved his place of residence to the Sydney area – was a crucial consideration in how the length of the term time occasions between X and his Father were constructed. She confirmed that in her view it is a concern for the Court if the evidence was unclear as to where the Father intended live in the long-term. In the event, by the close of the evidence, the Court had a clear impression from the Father’s evidence that if his regular term time occasions with X were to be on alternate weekends, but of such duration that he could travel down from City Y to collect X on a Friday and then be returned to his Mother on a Sunday before the Father then returned to City Y, he may remained living in City Y. However, if the regular term time occasions were to involve a collection of X from school at the start and return of X to school at the end, then the Father would change his place of residence to somewhere suitably close to make those transitions comfortable for X, such as residing with Ms AN at Suburb W, or by preference if the time involved delivering X to school, even closer to Suburb T Primary School than Suburb W.
If after appropriate consideration of the matters referred to in the legislative pathway in section 60CC, I find that it is in X’s best interest to spend substantial and significant time with his Father, orders can be framed in such manner that the time will be appropriate, and not amounting to substantial and significant time if the Father remains living in City Y, and alternate orders can be made providing for substantial and significant time between X and his Father if the Father relocates his place of residence to an appropriate travel time/distance from Suburb T Primary School.
When Mr Apelbaum put to Ms F that if the Court finds that it has no confidence in knowing where the Father will live when X is in his care on weekends – maybe at a friend’s home, or a hotel, or his girlfriend’s [Ms AN’s] home – that uncertainty would create concerns for the court in relation to X being properly rested on Sunday nights for school on Monday, Ms F’s response was, “I don’t necessarily say so”.
The Law
In parenting proceedings under the Act, the Court is required to follow the legislative pathway set down in the Act.
The Court must give attention to section 60B of the Act that sets out the objects of Part VII of the Act relating to children. Those objects inform the making of parenting orders. That section also contains the principles behind those objects.
In this matter I have considered those objects and the principles behind those objects.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. Parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.
In parenting proceedings, pursuant to section 65D of the Act, the Court may, subject to the presumption of equal shared parental responsibility in section 61DA and consideration of parenting plans under section 65DAB, make such parenting order as it thinks proper. The Court may make a parenting order that discharges, varies, suspends, or revives some or all of an earlier parenting order.[1]
[1] Family Law Act 1975 (Cth) s 65D(2).
In determining what is in a child’s best interest, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC and make findings.
Section 61DA provides that 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.
The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse. The presumption, when applying, 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.[2]
[2] Family Law Act 1975 (Cth) s 61DA(4).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then pursuant to section 65DA, the Court must consider:
(a)Whether the child spending equal time with each parent would be in the best interest of the child;[3] and
(b)Whether the child spending equal time with each of the parents is reasonably practicable.[4]
[3] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[4] Family Law Act 1975 (Cth) s 65DAA(1)(b).
If both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.[5]
[5] Family Law Act 1975 (Cth) s 65DAA(1)(c).
If the Court does not make an order for the child to spend equal time with each of their parents, then the Court must consider whether the child spending substantial and significant time with each of their parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if the answer to both is ‘yes’, the Court is to consider making an order to provide for the child to spend substantial and significant time with each of the parents.
What is meant by substantial and significant time is set out in section 65DAA(3) of the Act and includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child’s daily routine.
As foreshadowed earlier in these Reasons, I do not make a finding that there has been family violence in terms of this consideration. No family violence order applies or has applied.
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 X.
The making of parenting orders that provide for X to spend an appropriate period of his time with his Father, as determined below in my consideration of what that appropriate time is, together with orders minimising the necessity for face-to-face contact between the parents at changeovers, and orders relating to compliance with recommendations of X’s health professionals, are orders that are least likely to lead institution of further proceedings in relation to X.
Section 61DA – the presumption of equal shared parental responsibility when making parenting orders.
I have not made a finding that there are reasonable grounds to believe that a parent of X has engaged in abuse of X or in family violence. Accordingly, the presumption in section 61DA that when making a parenting order in relation to X it is in the best interest of X for his parents have equal shared parental responsibility for him does apply. The presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of X for his parents have equal shared parental responsibility for him.
The Mother seeks an order that she have sole parental responsibility for X, without any accompanying order requiring her to seek the Father’s views before making decisions about matters going to X’s long-term welfare or indeed informing the Father in any manner.
The Father seeks an order in his minute of final orders contained in his closing written submissions that “the parents share parental responsibility”, which I take to be an application that an order be made for the parents to have equal shared parental responsibility for X.
The ICL proposes an order that the Mother have sole parental responsibility for X and also proposes an order that the parents each “ensure that they keep each other informed as soon as it is reasonably practical” of a list of matters relating to X’s medical needs, social, school or religious needs, sporting involvement and “any other important matter relevant to the welfare of the child”.
Ms F in both the Family Report and her verbal evidence in cross examination was not able to make a recommendation as to the appropriate order to be made for parental responsibility. In the Family Report Ms F noted that the Mother’s reason for seeking that she have sole parental responsibility for X as being that the Father has “never taken an interest” in X. That assertion against the Father is demonstrably wrong. Ms F noted that the Father’s opposition to the Mother’s proposal was based on his dissatisfaction with the Mother’s actions at times in the past in failing to consult him and proceeding to make decisions on a unilateral basis.
Much was made during the cross examinations of the lack of trust between the parties and their difficulties with communication in the past. However, there is also evidence of the parties being able to communicate effectively and reach mutual decision, for instance in relation to schools.
On her evidence, the Mother considers that an order for equal shared parental responsibility would impose upon her an unfair burden in having to communicate with the Father so as to consult in relation to X’s long-term welfare in accordance with the legislative requirements, opening her to what she described in a 6 June 2016 email to the Father as his “constant bullying and explosive, mendacious emails and phone calls”.
I find on all of the evidence that time has moved on from the communications between the parties in 2016, from events of the nature of the “suspect cupcakes” episode (there is no reason at all to think that there was anything untoward whatsoever about the cupcakes) and so forth, and that the parents, despite their lack of trust and palpable dislike for each other, are now able to communicate about important long-term matters affecting X’s welfare, which are in reality now confined to dietary requirements unless some unfortunate and currently unforeseen matter arises.
Taking X to his friends’ birthday parties is not a parental responsibility matter.
Determination of the order proper to be made in relation to parental responsibility is not based upon the preferences or comfort of each of the parents as the paramount consideration, but upon X’s best interests as the paramount consideration. I find on all of the evidence that it is in X’s best interests that both his parents are involved by way of consultation in relation to his long-term welfare issues. That consultation need not be face-to-face, or even voice to voice (on the evidence they are perfectly capable of both without rancour), but can be by email or even the fast disappearing method of writing a letter.
In X’s best interests an order can be made requiring that the parents communication on matters relating to X’s welfare – long-term or short-term – be at all times polite and respectful. That is not an order specifically sought by either parent or the ICL, nor was it an order that was foreshadowed to the parties by me during the evidence or submissions. But it is an order that I consider proper to be made in X’s best interests with those best interests as the paramount consideration, as part and parcel with determination of the appropriate parental responsibility order.
I find that the appropriate parental responsibility order is that the parents have equal shared parental responsibility for X.
Determination of the Appropriate Care Arrangements for X Between His Parents – Section 65DAA
Having determined that the appropriate order in relation to parental responsibility is that the parents have equal shared parental responsibility for X, I must consider the matters relating to equal time or substantial and significant time in section 65DAA of the Act.
Is it in X’s interests to spend equal time with each of his parents?
The clear opinion expressed by Ms F during her cross examination by Mr Jackson for the ICL was that X should spend substantial and significant time with his Father as an end result, and that spending equal time with each of his parents as the end result would be substantially difficult for X given that his Mother was his primary carer and always had been.
The Father seeks that the end result of the progression in his time with X be a shared care arrangement with X spending Friday after school to the following Friday before school with each parent on a week about basis – sensibly such an order would have to be Friday after school to the following Friday after school or Friday before school to the following Friday before school so as not to leave X technically, though not actually, “at large” during the school day on Friday. Such an arrangement of shared care during school term on a week about basis necessitates a high degree of co-parenting ability between the parents and a good track record of easy and non-conflictual communication between them.
Whilst I have given the parents the benefit of the doubt on those matters in relation to parental responsibility, it is on the basis that the necessity for them to co-parent and communicate in relation to major long-term issues as defined in section 4(1) of the Act is an infrequent necessity, particularly in this matter where X’s schools are agreed and issues going to his name will be decided in these Reasons and be the subject of final orders. The necessity for them to co-parent and communicate if X spends equal time with each of his parents on a week about basis would be a frequent necessity.
Additionally, X is eight years old and he spent those eight years in the care of his Mother. Though he may, like many teenage children in his circumstances, eventually make his own arrangements as to what time he spends with each of his parents once he is in his teenage years, I consider that for the next six to seven years an arrangement where X spend equal time with each of his parents during school term is not in his best interest.
Is X spending equal time with each of his parents reasonably practicable?
In considering that question the Court must have regard to the factors set out in section 65DAA(5)(a) to (d) and any other matters the Court considers relevant.
Consideration of how far apart the parents live from each other is an element in this matter, but on the evidence of the Father – which I traversed specifically with Mr Jackson as Counsel for the ICL during an interruption for that purpose to his cross examination of Ms F – was that if he has three nights per fortnight with X, say Friday after school to Monday start of school, he will exercise that time in Sydney and that if he has four nights or more per fortnight with X he will move to reside close to Suburb T. If he has two nights per fortnight with X, as the Mother proposes, he may remain living in City Y or he may move to Sydney, but in either case he would exercise that time in Sydney because the time taken for travel back to City Y and then return to Sydney between after school Friday and Sunday afternoon would be unfair on X.
I have already foreshadowed that I intend to make orders in relation to the time X would spend with his Father during school term that provide for one duration as appropriate if the Father’s principal place of residence remains in City Y and a different, longer duration as appropriate, if the Father moves his principal place of residence to within a reasonable proximity in relation to travel time and distance from Suburb T where X attends school.
I have already found that I doubt the parents’ current and future capacity to implement an arrangement for X spending equal time with each of them.
Similarly, I have already found that I doubt the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of X spending equal time with each of them.
I agree with the opinion expressed by Ms F that an arrangement whereby X spends equal time with each of his parents during the school term would be significantly difficult for X in view of his care history with his Mother, and I consider that same would have a detrimental impact on X.
Accordingly, I find that it is neither in X’s best interests nor is it reasonably practicable for X to spend equal time with each of his parents and I will not go on to consider making an order of that nature.
Is it in X’s best interest to spend substantial and significant time with each of his parents?
As outlined earlier, substantial and significant time in section 65DAA has the meaning set out in subsection (3) and involves X spending days with each of his parents that fall on weekends and holidays and days that do not fall on weekends and holidays, and which allows each parent to be involved in X’s daily routine and occasions and events that are of particular significance to X, and allows X to be involved in occasions and events that are of special significance to each of his parents.
X spending substantial and significant time with each of his parents is recommended by Ms F in both the Family Report and her verbal evidence. I have found in my consideration of the primary considerations in section 60CC that it is a benefit to X have a meaningful relationship with both his parents and that there is no risk element or other need to protect X from physical or psychological harm that limits that benefit. I have found that it is not in X’s best interest to spend equal time with each of his parents.
The Father’s application is for orders that provide ultimately for a shared care arrangement both during school term and school holidays. He has at no time proposed that X live with him and spend time with his Mother. It is inherent in findings I have made so far that X would live with his Mother and spend a lesser time than equal time with his Father. I find that to sustain and continue to develop the meaningful relationship between X and his Father the time that he spends with his Father should be substantial and significant time. I find that it is in X’s best interests to spend substantial and significant time with each of his parents.
Based upon the matters traversed in paragraph 190 of these Reasons in relation to the Father’s evidence of where he intends to reside dependent upon the amount of time X’s will spend with him during school term time, I find that the circumstances of the Father living at City Y and the Mother and X living at Suburb T at the time of hearing still makes it reasonably practicable for X to spend substantial and significant time with each his parents.
X spending substantial and significant time with each of his parents in circumstances where the duration of that time with his Father is necessarily less than the duration of his time with his Mother does not necessitate the parents co-parenting and communicating with the frequency that I have found is not in X’s best interest in relation to an equal time arrangement. Once certain basic ground rules and routines are established – for example what X needs to take with him from one house to the other, what X needs for his school attendance each affected day – the need for frequent communication is reduced.
Substantial and significant time arranged with the Father collecting X from school at the start and delivering him to school at the end eliminates the necessity for any frequent face-to-face contact between the parents.
So long as X’s substantial and significant time with his Father is approached on a graduated basis, stepping from a single overnight to increasing multiple overnights by stages of two months, I find on all of the evidence that such an arrangement will not have any detrimental impact on X that outweighs the substantial benefit to him.
I find that X spending substantial and significant time with each of his parents is both in his best interests and is reasonably practicable, and therefore I must consider making an order that provides for X spending substantial and significant time with each of his parents.
On the basis of my findings on the primary and additional considerations in section 60CC of the Act, I find that the appropriate substantial and significant time order is one that terminates with X spending five nights per fortnight with his Father during school term and the balance of the school term nights with his Mother, and that provides that, after a staged process of less than one week at a time during the end of Term 3 and end of Term 4 school holidays in 2022, X spends equal time with each of his parents during school holidays – on a week-about basis during the end of Term 4 school holidays in 2023 and thereafter for a continuous half in end of Term 4 school holidays.
X’s Surname
The Father’s evidence in chief in relation to the issue of X’s surname revolves mainly around his assertion of the parties’ original agreement that the surname should be Rowe and the extended families concurrence in that agreement.
During his cross examination by Mr Jackson for the ICL, when asked why X’s surname should be Rowe, he again referred to the original agreement and the initial birth registration forms, to X’s knowledge of his surname “Rowe” and that “there has been a power imbalance in that the Mother uses the surname Osborne for X”. He denied that X had ever used the name Osborne for himself in the Father’s presence. He confirmed that he did not agree with X’s surname being changed to Osborne and said that if it was he feared that X would identify less with him as his family, especially if he spends more time with his Mother than with his Father. He was specific that he did not agree with X having a hyphenated surname as he felt sure that the Rowe part would be dropped away.
The Mother’s evidence in chief is more to the point and is in paragraphs 55 to 58 of her trial affidavit. She asserts that X identifies himself as X Osborne and that she has been using the surname Osborne for X since she was three months old. The Mother asserts that though his formal paperwork at his school is in the name of X Rowe, as that is the name on his birth certificate, he is known as X Osborne by X himself, by his classroom teachers, by his friends and on online school platforms. His school equipment is all labelled “X Osborne”. His class photos identify him as “X Osborne”.
During cross examination of the Mother by Mr Jackson for the ICL, she asserted that the name X had been registered at childcare was X Rowe as that is the surname on his birth certificate and it was not possible to register him otherwise, but that he was known as X Osborne. It was put to the Mother that X had told the Family Report writer that she (the Mother) got angry when X used the surname Rowe and she responded that it was not true and that X has always known that his surname is Rowe. The question was actually unfair as X made no such statement to Ms F, but in paragraph 38 Ms F noted that the Father had told her that X told him that the Mother “gets angry” at him (X) if he says that his surname is Rowe. In response to a question by Mr Jackson asserting that the surname issue may be causing confusion for X, the Mother responded, “no, he gets it. That’s why I want to change. He sees himself as X Osborne. That’s how he identifies himself.” She said that at the time she made the decision to use Osborne as his surname she felt that it was the best decision for X as “he was surrounded by Osbornes and I did not want him to feel excluded.”
Mr Jackson then referred the Mother to the Father’s opinion reported in paragraph 38 of the Family Report that “it is not in X’s best interest that X’s surname is hyphenated because this is a “mouthful” and because “Rowe” will be dropped from future registrations” and asked her view about a hyphenated name, to which she answered “It’s not an issue. I would accept that, a hyphenated name.”
In paragraph 68 of the Family Report, Ms F notes “X wrote his first name for the Family Consultant. X said that he would not write his surname. When he was asked what he surname is, X responded saying “Osborne”.”
Ms F sets out in paragraph 94 of the Family Report on the issue of surname:
Both parents remain entrenched in their views that it is in [X]’s best interest that he has their respective surname. [X] is at a developmental stage in which his sense of identity is developing. Children wonder about the nature of the self and the way they understand and answer “who am I questions” may affect them for the rest of their lives. Whether or not there is a change in [X]’s surname is a matter for the Court. The parents are encouraged to refer and record [X]’s surname in accordance with the determination by the Court, as this will reduce the amount of parental conflict that [X] may be exposed to.
Ms F goes on to recommend that ideally the issue of surname should be resolved by the commencement of X’s primary school attendance to avoid any possible confusion for him. X commenced kindergarten in 2020, the year before the final hearing, and the issue of course, had not been resolved.
The essential consideration for an order relating to a child’s name, as with any parenting order, his the child’s best interest as the paramount consideration[19] The focal question on this issue is around X’s sense of self identity current and future.
[19] Lysons & Lysons (2019) FamCAFC 29 at [22].
The principles to be considered by a Court where a change to a child’s surname is in issue were set out long ago by the Full Court of the Family Court of Australia in Chapman & Palmer.[20] The Full Court said:
In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
[20] Chapman & Palmer (1978) FLC 90-510.
The Court then set out six criteria that the Court must look at in determining whether there should be a change of name:
(a)The welfare of the child is a paramount consideration;
(b)The short and long-term effect of any change in the child’s name;
(c)Any confusion of identity which may arise for the child if the name is or is not changed;
(d)Any embarrassment likely to be experienced by the child of the name is different from the parent who has the primary care;
(e)The effect that any change in surname may have on the relationship between the child and the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
Connor J of the Family Court of Western Australia in Beach and Semmler,[21] referred to additional matters relevant to a change of a child’s name, summarised by Watts J in Tinley & Colton as: [22]
(a)The time that the parent who is agitating the change of name has had or is like to have with the child in the future;
(b)The degree of identification that the child now has with the parent agitating the change of name;
(c)The degree of identification which the child now has with both the parties; and
(d)The desire of the parent who seeks the name change.
[21] Beach and Semmler (1979) FLC 90-692.
[22] Tinley & Colton [2020] FamCA 1015.
Foster J in Reagan & Orton (approved in Lysons) at paragraph 34 said:[23]
[23] Reagan & Orton (2016) FamCA 330, [34].
[34]The factors frequently considered in determining whether there should be any change to a child’s name include:
(a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or caring control;
(b)Any confusion of identity which may arise for the child if his or her name is changed or not changed;
(c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
(d)The effect of frequent or random changes of name;
(e)The contact any non-custodial parent has had and is likely to have in the future with the child;
(f)The degree of identification that the child or children have with their non-custodial parent; and
(g)The degree of identification the child or children have with the parent with whom they live.
In Mahony & McKenzie the use of a hyphenated surname was examined by Warnick J, who held that a number of benefits could be expected to arise from an order to that effect, including the following:[24]
The use of a hyphenated surname, in a number of ways, accords with the reality of J’s life. His mother is Ms McKenzie, his father Mr Mahony. J is the product of their union. He would have a united surname. He has an on-going relationship with both of his parents, though they do not live together. The use of a hyphenated surname might facilitate the recognition by others of J’s life circumstances and the ease with which Jay accepts his life circumstances.
Finally, the use of the hyphenated surname offers J a middle road in times of rapidly changing social attitudes…Some persons would support the proposition that in theory, if not in the application to a particular child, there should no longer be a preference for the paternal surname. Some people would support the right in Ms McKenzie to revert to the use of her own family name upon the breakdown of her relationship with Mr Mahony. Some people would support the right in Ms McKenzie to apply her surname for J, where she is custodian. Some would support the use of the combined surnames.
As Jay grows he will become aware of the attitudes in the community. He may develop feelings and ideas of his own about his surname and the use of the hyphenated surname would seem to provide him with a non-contentious platform from which he may choose to move in one direction or another, or to maintain the compromise.
[24] Mahony & McKenzie (1993) FLC 92-408.
I have no evidence to assist me with assessing the short and long-term effects of any change in X’s surname, other than the evidence that he is aware that his formal surname is Rowe (on the Mother’s evidence) and that he would seem to regard Osborne as his surname for use, and that accordingly, an order that his surname for all purposes be Rowe could cause him at least short term identity confusion.
I have no evidence to assist me in assessing any embarrassment likely be experienced by X if his name is different from his Mother’s, with whom he mainly lives, and I find on the evidence that it will probably cause identity confusion for X if an order is made requiring his surname to be given as Rowe for all purposes.
One must conclude that the effect of frequent or random changes of surname for a child of X’s age would have a detrimental effect and possibly a significantly detrimental effect on his sense of identity and therefore on his well-being.
Pursuant to the findings I have made earlier in these Reasons, X will ultimately be in his Father’s care for five nights per fortnight and for half of the school holidays and in his Mother’s care for the balance of the time.
I find that X identifies completely with each of his parents – his Father as his father and his Mother as his mother. Ms F was asked during cross examination if X going forward with conflicting identities would be damaging for him and she confirmed that it would.
I’m very much influenced by what fell from Warnick J in Mahony & McKenzie and I note the Mother’s acceptance of a hyphenated surname, and I also accept her evidence that X has been known mainly by the surname Osborne throughout his life to date. I also note the Father’s evidence complaining of that. I find that an appropriate order in X’s best interest, with that interest as the paramount consideration, is that his formal surname, including the surname record on his birth certificate, be altered from “Rowe” to “Osborne-Rowe” with the order requiring that his full hyphenated surname be used on his behalf by his parents for all purposes.
Travel by X outside the Commonwealth of Australia
The Father seeks the order detailed at the start of these Reasons that X be able to travel outside the Commonwealth of Australia with either parent on certain conditions. The Mother seeks an order that she be able to remove X from the Commonwealth of Australia for a period of up to six weeks each year the purposes of a holiday provided she notifies the Father of her itinerary and arranges make-up time, but does not seek a similar order for the benefit of the Father travelling outside the Commonwealth of Australia with X.
The ICL seeks an order that both parents be able to remove X from the Commonwealth of Australia for an overseas holiday for a period consistent with the time he is with that parent for school holidays, or as otherwise agreed for a longer period, provided the travelling parent provides the other parent with his or her itinerary.
Inherent in the Father’s proposed order and the ICL’s proposed order is that neither considers the Mother to be a flight risk. There is no evidence presented in the Mother’s case or at all that the Father could be considered a flight risk if he were to travel outside the Commonwealth of Australia with X. I see no reason whatsoever why either parent should be prevented from holidaying with X outside the Commonwealth of Australia within their time when X is in their care under the orders or at such other times as they may agree between them.
It may sound a little over hopeful that these parents may agree between themselves that one parent may have a holiday with X outside the Commonwealth of Australia for a longer period of time than is provided for in the orders, but there may be a realisation by both of the mutuality of benefit inherent in such agreement – that if one parent asks and the other parent concedes, with arrangements for make-up time, it is to be expected that the same consideration will be provided in the other direction. If one parent is obstructive of a request then that parent can only expect that the other parent or follow suit. This principle applies to many occasions where departure from the strict terms of parenting orders is sought by agreement.
I consider that the overseas travel order proposed in the Father’s minute of order is preferred with the addition to condition (a) that the parents may agree on a longer period of time.
The Balance of the Proposed Parenting Orders.
The Father proposes that any changeovers that do not occur at X’s school occur at the commencement of X’s time with him at the Mother’s residence and at the end of X’s time with him at his residence. The Mother proposes that changeovers occur on all occasions at her home. The ICL proposes that changeovers be at the school where possible and, if not, at the Mother’s home.
As always, the essential consideration is the best interests of X, as a consideration paramount to consideration of the convenience of the parents and others. The Mother’s place of residence is settled. The Father’s place of residence, in view of the orders I foreshadow and in accordance with his evidence, will be a movable and developing situation.
I consider that the proper order in X’s best interest is that any changeover not occurring at X’s school occur at his Mother’s place of residence, thereby encouraging the Father when he relocates to Sydney to relocate reasonably close to Suburb T.
On the basis of my consideration of X’s best interests in these Reasons, I find it is proper to make an order that both parents have opportunity to attend X’s school functions. On that basis and on the basis of the evidence in cross examination of each party on the issue, I find it is proper to make an order for communication between X and his non-carer parent on the Thursday and Sunday at some time between 6:00PM and 7:00PM, noting that such an order is not a requirement that X maintain a telephone or video link conversation with his parent for a full one hour duration, but that such telephone call as X pursues happen at some time during that hour.
In consequence of the Father’s agreement to such order, indeed his assertion that he proposed it first, I will make an order in terms of that sought by the Mother that upon the Mother giving the Father at least four weeks’ notice she can swap the Father’s weekend time for another time within that four week period.
As foreshadowed repeatedly in these Reasons, I will make an order nearly in terms of that proposed by the Mother that at all times that X is in a parent’s care that parent shall adhere to all dietary requirements for X as recommended from time to time by X’s health professional or professionals.
I decline to make a specific order requiring the Father to take X to birthday parties and extracurricular activities. I believe that is a matter for each party’s judgement in parenting X.
I find that it is appropriate in this matter to make a non-denigration order, noting that same is sought on a without admissions basis by the Father. I will make the non-denigration order using my terms for a wider coverage to include members of each parent’s family and members of each parent’s household, and to cover third parties. I also find it is appropriate to make an order as proposed by the Father restraining the parties from discussing these proceedings or any issue arising out of these proceedings with X or permitting or authorising any third-party to do so, except as is necessary to inform X about and explain to him the final orders without comment, approval or criticism thereof, to X.
Finally, I consider it is appropriate that X’s passport be kept in the possession of his Mother except when it may be required by his Father for the purpose of overseas travel in accordance with the orders or an agreement between the parties.
In conclusion
As a result of my findings in these Reasons, final parenting orders will be made setting out the future parenting arrangements for X. I have determined what orders are proper to be made in X’s best interests, with his interests as the paramount consideration, on the basis of the bubble of admitted evidence in the final hearing. The parents between them have the full multi-volume encyclopaedia containing everything there is to know about X and it is now up to them to take these final orders and co-parent him without exhibiting to him their mistrust of each other, without ever again letting him be aware of their dislike of each other, but rather, so presenting themselves that he gets the clear impression that they are cooperatively and in good spirit co-parenting him. X has accepted that his parents don’t live together – that is the circumstances he has known all of what is now his conscious life (humans get virtually total amnesia at about the age of three years). The parents should now go on with co-parenting X in such manner that he will find that that circumstance does not impose a burden or a detriment on him beyond what is unavoidable in a practical sense. I think that as loving parents both Mother and Father can do so despite their history and the reality of their feelings in relation to each other.
I make the orders set out the start of these Reasons.
I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 16 August 2022
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