SHARP & QUEST
[2015] FCCA 2392
•16 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARP & QUEST | [2015] FCCA 2392 |
| Catchwords: FAMILY LAW – Parenting – weight to be given to views of a child wishing to live with the father. |
| Legislation: Family Law Act 1975, ss.60CC, 60CD, 61BA, 61DA, 65DAA |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR SHARP |
| Respondent: | MS QUEST |
| File Number: | SYC 1716 of 2009 |
| Judgment of: | Judge Myers |
| Hearing dates: | 31 March, 1 & 2 April 2015 |
| Date of Last Submission: | 30 April 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 16 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Spain |
| Solicitors for the Respondent: | In person |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
THE COURT ORDERS THAT:
All orders relating to the child X born (omitted) 2005 are discharged.
The father have sole parental responsibility for long term issues in relation to the child.
The parties have sole parental responsibility for the day to day care, control and welfare of the child whilst in his or her care.
The child live with the father.
The child spend time with the mother as follows:
(a)Each alternate weekend from the conclusion of school on Friday afternoon until 6.30pm the immediately following Sunday, commencing the second week of the gazetted New South Wales school term, with the mother to collect the child from school;
(b)In the first half of the gazetted New South Wales school holiday period in even numbered years, and in the second half of the gazetted school holidays in odd numbered years;
(c)In each even numbered year from 7.30am Easter Friday until 6.30pm Easter Monday;
(d)Any other time that the parties may mutually agree in writing.
In the event the Father’s Day weekend falls on a weekend that the child would ordinarily be spending time with the mother, the mother’s time shall be suspended and in substitution the mother will spend time with the child the following weekend at the same time as outlined in Order 5(a) hereof.
In the event the Mother’s Day weekend falls on a weekend when the child would ordinarily be spending time with the father, the father’s time shall be suspended and in substitution the father will spend time with the child the following weekend.
For the purposes of the implementation of the orders herein where changeover is not specified to occur at the child’s school, changeover is to occur at the McDonalds Family Restaurant at (omitted).
The orders for the child X to live with the father shall commence at the end of Term 2 being Friday 26 June 2015 with X to complete the balance of his schooling at his current school.
The child be enrolled in the local (omitted) Primary School being (omitted) School’s at (omitted) in primary school.
The child be enrolled in (omitted) High School, (omitted).
The parent with whom the child is not living or spending time with shall be permitted to communicate with the child by telephone each Monday, Thursday and Saturday between the hours of 6.30pm and 7.00pm.
For the purposes of implementation of order 12 herein the telephone communication is to be facilitated by the non-resident parent dialling the mobile phone number of the child and the resident parent shall ensure that the child is available to take that telephone call.
For the purposes of implementation of the orders herein:
(a)The school holidays are deemed to commence from the day immediately following the conclusion of school at 7.30am. The holidays are deemed to end the day immediately prior to when the child is due to return to school at 6.30pm and the mid-point is deemed to be 6.30pm on the day halfway between those first and last days.
The parties are restrained by injunction from causing or permitting the child to be known by any other surname other than “Sharp”.
The child’s passport be retained by the father unless required by the mother for overseas travel with the child.
The parties be prevented by injunction from physically disciplining the child or allowing any other person to do so.
Each party keep the other informed as to all sporting, religious, cultural and educational events which come to the notice of that parent in which the child is from time to time involved or which relate to the activities of the child although he himself might not be involved and at which parents may attend.
The father is permitted to enrol the child in a local (hobby omitted) competition but otherwise shall not enrol him in any other weekend extra-curricular activity without the written consent of the mother.
Each party is entitled to attend all events involving the child including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
The parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from the event.
It will be a matter of discretion for the parent with whom the child lives or spends time with if that parent takes the child to his sporting activity whilst the child is in their care.
Each parent be at liberty to travel overseas with the child provided that:
(a)They provide to the other party not less than four (4) weeks prior to the date of intended departure a detailed written itinerary of the proposed trip, including the date of departure and return; flight details and times; all locations and destinations of travel and details of accommodation, address, telephone and email contact details; and
(b)A certified copy of the booked seats in the parent’s and children’s name (either the hard copy tickets or a written confirmation of the tickets from a travel agent or airline) for the departure and return flights;
(c)The details of an e-mail address and or telephone number at which the child and parent can be contacted during the trip;
(d)The parent ensures that they travel with the child for the entire period during which the child is travelling;
(e)The child’s passport is to be returned to the father within 72 hours of return from any overseas trip; and
(f)The time that the parent is travelling with the child is to occur when the child is ordinarily spending time with that parent pursuant to these orders unless mutually agreed in writing so as to limited the amount of time the child has off school to travel.
When the child’s passport is due to renewal, each party be responsible for the payment of half of the renewal costs and sign all such documents required to enable renewal prior to the expiration of the passport.
The parties are restrained by injunction from denigrating each other to or in the presence or hearing of the child from permitting the child to remain in the presence or hearing of any other person doing so.
Each party be restrained by injunction from smoking or consuming alcohol to the point of intoxication as defined within the meaning of intoxication in the NSW Liquor Act 2007 in the presence of the child and as far as possible permitting any other person to so smoke or consume alcohol to the point of intoxication in the presence of the child.
Each of the parents be entitled to obtain directly from any education, health, welfare or other professional attended by the child, copies of any reports, notices or other verbal or written advice affecting the health and welfare of the child.
Each parent be prevented by injunction from consuming any illicit substances 48 hours’ prior to or during any time that parent has the child in their care or allowing any other person to do so.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communication with the other parent about the condition and treatment of the child.
Each party keep the other informed in writing of their respective current residential address, landline telephone number, mobile telephone number and email address and notify the other of any changes to these details within 48 hours of that change occurring.
If the child’s birthday falls on a school day from after school until 7.00pm the child shall spend time with the mother with the mother to return the child to the father’s home at the cessation of time.
If the child’s birthday falls on a weekend the child is to spend time with the parent that would not otherwise be spending time from 10.00am to 4.00pm on Sunday with the parties to meet at the McDonald's (omitted).
The dispute resolution process used for resolving disputes about the interpretation, implementation or enforcement of these orders shall be as follows:
(a)First discuss the matter involved in a thoughtful and respectful way;
(b)Then failing agreement, reduce their views as to the problem and its resolution in writing and provide a copy to the other forthwith;
(c)Thereafter the mother and father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney Department and the mother and father shall participate in family dispute resolution authorised under Part 10G of the Family Law Act 1975.
The application for costs of the Independent Children’s Lawyer against the mother is dismissed.
The application for costs of the Independent Children’s Lawyer against the father is dismissed.
THE COURT NOTES THAT:
The Independent Children’s Lawyer has requested a written copy of the ex tempore decision.
IT IS NOTED that publication of this judgment under the pseudonym Sharp & Quest is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 1716 of 2009
| MR SHARP |
Applicant
And
| MS QUEST |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
These are parenting proceedings in respect of the care and living arrangements for the child, X, born (omitted) 2004. X is some 11 years of age. The applicant in the proceedings is X’s father Mr Sharp. The respondent in the proceedings is X’s mother Ms Quest. The father set out in his outline of case documents the orders sought by him that provide as follows:
(1) That all orders relating to the child, X, born (omitted) 2004 (the child) are discharged;
(2) that the father have sole parental responsibility for long term issues in relation to the child;
(3) that the parties have sole parental responsibility for the day-to-day care, control and welfare of the child whilst in his or her care;
(4) the child live with the father;
(5) the child spend time with the mother as follows:
(a) each alternate weekend from the conclusion of school on Friday afternoon until 6.30 pm the immediately following Sunday commencing the second week of the gazetted New South Wales school term, with the mother to collect the child from school;
(b) in the first half of the gazetted New South Wales school holiday periods in even-numbered years, and in the second half of the gazetted New South Wales school holidays in odd-numbered years;
(c) in even-numbered years from 7.30 am Easter Friday until 6.30 pm Easter Monday;
(d) any other time the parties may mutually agree in writing;
(6) that in the event the Father’s Day weekend falls on a weekend that the child would ordinarily be spending time with the mother, the mother’s shall be suspended, and in substitution the mother will spend time with the child the following weekend at the same time as outlined in order(5)(a) hereof;
(7) that in the event the Mother’s Day weekend falls on a weekend when the child would ordinarily be spending time with the father, the father’s time shall be suspended and in substitution the father will spend time with the child the following weekend;
(8) for the purpose of the implementation of the orders herein where changeover is not specified to occur at the child’s school, the changeover will occur at McDonald’s family restaurant at (omitted);
(9) that the child be enrolled in the local (omitted) primary school, (omitted) at (omitted) Primary School;
(10) that the child be enrolled in an international (hobby omitted) school, (omitted) High School, or if he does not secure a place at that school he be enrolled in the (omitted) School, (omitted);
(11) that the non-resident parent be permitted to communicate with the child by telephone each Tuesday and Thursday between 4.30 pm and 7.30 pm;
(12) that for the purposes of implementation of order 10 herein the telephone communication is to be facilitated by the non-resident parent dialling the mobile telephone number of the child, and the resident parent shall ensure the child is available to take the telephone call;
(13) that for the purposes of implementation of the orders herein:
(a) the school holidays are deemed to commence from the day immediately following the conclusion of school at 7.30 am. The holidays are deemed to end the day immediately prior to when the child is due to return to school at 6.30 pm, and the midpoint is deemed to be 6.30 pm on the day halfway between those first and last days;
(14) the parents are restrained by injunction by injunction from causing or permitting the child to be known by any other surname other than Sharp;
(15) the child’s passport be retained by the father;
(16) that in the event the mother relocates interstate or overseas she will make an application to the court to seek amendments to the orders contained herein;
(17) that each party keep the other informed as to all sporting, religious, cultural and educational events which come to the notice of that parent in which the child is from time to time involved or which relate to the activity that the child, although he himself might not be involved and which parents may attend;
(18) that each party is entitled to attend all events involving the child, including:
(a) sporting fixtures;
(b) extracurricular activities that allow for parental attendance;
(c) school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent-teacher interviews, catering duties and social functions; and the parent who has the child in their care on the day of such activity will be responsible for their day-to-day care at such event and the child’s transportation to and from the event;
(19) that the parents shall be at liberty to travel overseas with the child providing that:
(a) they have provided to each other not less than four weeks prior to the date of the intended departure a detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travelling details of accommodation address, telephone and email contact details; and
(b) a certified copy of the booked seats in the parent’s and child’s name, either the hard copy tickets or a written confirmation of the tickets from a travel agent or an airline for the departure and return flights; and
(c) the details of an email address or telephone number at which the child or parent can be contacted during the trip; and
(d) the parents ensure that they travel with the child for the entire period during which the child is travelling; and
(e) the child’s passport is to be returned to the father within 72 hours of return from any overseas trip; and
(f) the time the parent is travelling with the child is to occur when the child is ordinarily spending time with that parent pursuant to these orders, unless mutually agreed in writing, so as to limit the amount of time the child has off school to travel;
(20) that when the child’s passport is due for renewal each party be responsible for the payment of half of the renewal costs and sign all documents required to enable a renewal prior to the expiration of the passport;
(21) the parents ensure that the child attends all extracurricular activities in which they are enrolled and which attendance is required and expected during the time the child is in their care;
(22) that the parties are restrained by injunction from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence of hearing another person denigrating the other;
(23) each party be restrained by injunction from smoking or consuming alcohol to excess in the presence of the child and, as far as possible, permitting others to so smoke or consume alcohol to excess in the presence of the child;
(24) that each of the parents be entitled to obtain directly from any education, health, welfare or other professional attended by the child copies of any reports, notices or other variable written advice affecting the health and welfare of the child;
(25) the each party shall notify the other of any medical emergency or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child;
(26) that the mother forthwith enrol herself to commence, and thereafter participate and complete, a post-separation parenting program;
(27) that each party shall keep the other informed in writing of their respective current residential addresses, land line telephone number, mobile telephone number and email address and notify the other of any change to these details within 48 hours of that change occurring;
(28) that the dispute resolution process used for resolving disputes about the interpretation, implementation and enforcement of these orders is as follows:
(a) first discuss the matter involved in a thoughtful and respective way;
(b) then, failing agreement, reduce their views to the problem and its resolution in writing and provide a copy thereafter to the other; then
(c) failing agreement, the parties shall do all things necessary to attend upon government-authorised mediation to assist in the resolution.
At the hearing the father relied on his affidavit filed 5 February 2015 and that of his wife, Ms J, filed 5 February 2015. The Court has read and considered those affidavits. The mother seeks final orders in the terms set out in a case information document that provides:
(1) X to continue to live with the mother, Ms Quest;
(2) for X to see his father, Mr Sharp, while residing in (omitted) or Sydney on a fortnightly basis commencing Friday at his enrolled (omitted) High School, (omitted) School, and continuing on Sunday at 6.30 pm at the airport;
(2)(a) in the event that the mother, Ms Quest, will relocate within New South Wales more than three hours drive from the father, X will see the father once every third weekend;
(b) in the event the mother Ms Quest will relocate interstate with the child, X will see his father once per month, with changeovers at the airport;
(c) in the event that the mother Ms Quest will relocate overseas with the child, X will see the father during school holidays;
(d) in the event that an airfare is required to see the father, each party is to pay their own one-way airfare from the origin destination for X, the child;
(e) in the event the mother would like to take X overseas on a holiday or to visit family, this is allowed at her own discretion;
(3) extra and additional time is to be arranged and agreed by both parties at least 14 days in advance;
(3)(a) X’s request to see the party is at any time;
(4) X be permitted to live interstate or overseas with the mother;
(5) X is to enrol in and attend a (omitted) high school;
(6) X to complete all secondary schooling and his HSC (High School Certificate);
(7) high school education tuition be paid in total by the father;
(8) X to Skype or phone his father every Monday and Wednesday to speak via phone every alternate Thursday and to contact his father at his own request;
(6)
(a) phone communication cease while away on holidays for both parties;
(b) days can change due to extracurricular activities each school term;
(9) in the event of X being injured or sick, a medical professional is seen for a diagnosis and analysis, each party is to inform immediately with full details;
(10) in the event of any future siblings, X is able to present for this time of birth and any special events that may occur, such as baptisms, birthdays and graduations;
(11) X is always to have a valid passport, each renewal fee to be equally halved and paid for by both parties;
(12) X’s passport to be kept with the mother, Ms Quest;
(13) the changeover at X’s to be made at least the last time spent with the child before intended travel or at the airport;
(14) ….. international travel plans and itineraries are provided no less than 28 days before travel;
(15) any change of address or contact details to be provided in writing 28 days in advance;
(16) in the event that new and updated orders are made for X to live with the father and relocate to the (omitted), that I do not have the restriction or control from Mr Sharp the location, state, country, shire or suburb where I will reside in the future;
(16) during January of each year and prior to school commencing, all school holidays and weekends need to be communicated and agreed by both parties via email;
(a) no changes are to be requested or made once both parties have agreed;
(b) additional time spent with X at X’s request is excluded;
(17) social media and internet access will be strictly monitored by all parents;
(a) all usernames and passwords will be provided by both parties;
(b) access and acceptance of friends will be ensure at all times;
(c) any new social media, emails or accounts will be advised to the other party at the time installation is set up;
(d) any changes made will be advised to the other party at the time of installation or setup;
(e) failure to do any of the above results in the cancellation or deletion of the account and the child X is no longer able to use that program, software, app or website;
(f) posting of inappropriate or nude photos are not allowed by all parties;
(18) X permitted to attend a family holiday in (country omitted) in 2016 with family and friends, days of travel between seven and 14 days, date to be advised.
The mother seeks to rely upon a consolidated affidavit filed 20 February 2015 that the Court has read and considered. The independent children's lawyer seeks orders in accordance with the minutes tendered during the course of proceedings, formally exhibit W, that provide that:
(1) All previous parenting orders relating to the child X, born (omitted) 2004 (the child) are discharged;
(2) the father have sole parental responsibility for the child;
(3) except in the event of an emergency, the father shall, prior to an implementing a decision about the child’s long-term care, care, welfare or development, including his education, place of residence, religious upbringing or major medical treatment:
(a) attempt to contact the mother; and
(b) attempt to ascertain her views in relation to the decision; and
(c) give her views proper consideration; and
(4)
(a) that the mother spend time with the child as follows: during school term each second weekend from after school on Friday to 6.30 pm on Sunday, with such time to commence on the second week following the resumption of every school term; during the school holidays periods at the end of terms 1, 2 and 3;
(b) for one half of each term school holiday be in the first half of the New South Wales gazetted school holidays an even number of years and the second half of the New South Wales gazetted school holidays in odd numbered years;
(c) the first half of the school holidays is defined as commencing from after 4.30 pm on the last day of school term to 4.30 pm on the day which is the midway point of the school holiday period;
(d) the second half of the school holidays is defined as commencing from 4.30 pm on the midpoint of the school holidays to 4.30 pm on the Sunday prior to the commencement of the new school term;
(e) for one half of the Christmas school holiday period, being the first half to the New South Wales school holidays in even numbered years and the second half of the New South Wales gazetted school holidays in odd numbered years;
(f) the first half of the school holidays is defined as commencing from 4.30 pm on the last day of term, 4 to 4.30 pm on the day which is the midway point of the school holiday period;
(g) the second half of the school holidays is defined as commencing from 4.30 pm on the midway point of the school holiday period to 4.30 pm on the Sunday prior to the commencement of term 1 and the new school year;
(h) on the child’s birthday each year as follows;
(i) if the child’s birthday falls on a school day and then from after school until 7 pm, with the mother to return the child to the father’s home at the cessation of the time;
(ii) if the child’s birthday falls on a weekend from 10 am to 4 pm, with the parties to meet at the McDonald’s restaurant (omitted);
(iii) in the event the mother is unable to have face-to-face time with the child either by telephone or Skype between 7.30 am and 8 am. Such other times as agreed between the parties in writing.
(5) Where the changeovers do not occur at the child’s school, the parties shall effect the changeover at the McDonald’s restaurant, (omitted).
(6) That the child spend time each weekend which includes Mothers Day with the mother from collection at school at Friday until 6.30 pm the following Sunday. In the event that this weekend falls on a weekend that the child would ordinarily be living with the father, then the father’s time is suspended, in substitution the father will spend time the following week.
(7) That the child spend each weekend which includes Fathers Day with the father. If this weekend falls on a weekend where the child would ordinarily be spending time with the mother, then the mother’s time is suspended and in substitution the mother will spend time with the child the following weekend.
(8) The father forthwith do the following:
(a) Enrol the child in (omitted) Primary School, (omitted). In the event he is unable to enrol the child at this school, then such other (omitted) primary school in the local area;
(b) Obtain a referral for the child from his general practitioner to attend upon a behavioural and education psychologist clinic which addresses these areas for an assessment of the child; and shall follow all recommendations and/or treatments, if any, following the assessment and ensure the child continues to attend until such time as the health professional or psychologist seems their services are no longer required;
(c) The father is permitted to local to enrol the child in a local ….. competition, but otherwise shall not enrol him in any other extracurricular activity without the written consent of the mother
(d) The father will provide the mother in writing details of (hobby omitted) games including location and times within 48 hours of receiving such information.
(e) The mother will use her best endeavours to ensure that X attends all (hobby omitted) games and gala days on days and times that he is in her care pursuant to these orders.
(9) The child communicate with the mother when he is not in the care as follows:
(a) During the school term period each Monday, Thursday and Sunday from 6.30 pm to 7 pm;
(b) During the school holiday period each Monday and Thursday from 6.30 pm to 7 pm by Skype or telephone if either party is away on holidays;
(c) The child communicate with the father when he is not in his care during the school holiday periods each Monday and Thursday from 6.30 pm to 7 pm by Skype or telephone if either party is away on holidays;
(d) In the even the child is travelling overseas with either party, the child shall be communicating with the parent that they are not in their care of no less than once per week by telephone with the child to initiate the telephone call.
(e) Each parent keep the other advised of their current residential address, email address and contact telephone numbers, including both landline and mobile telephone number and advise the other parent of any change to these details within seven days of such change occurring.
(10) The father shall ensure that X is enrolled in the local (omitted) school unless an alternative school is agreed to in writing by the mother.
(11) Within seven days of the child’s enrolment at any school, the father shall give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time is authorised to speak to the mother and provide her with any documents or information she may request regarding the child’s education and wellbeing.
(12) Nothing in these orders shall prevent either party from attending any school event or sporting fixture to which the parents and family members are ordinarily invited.
(13) Each party will provide an authorisation to any medical professional seen by the child to allow the medical professional to talk to the other parent about any diagnosis, prognosis and treatment of the child.
(14) The parties shall ensure the other is kept informed of any medical problems or illnesses suffered by the child and any medication that has been prescribed for the child and any emergency medical treatment provided for the child.
(15) Each parent shall be at liberty to travel overseas with the child provided the following occurs:
(16) They provide the other parent with not less than six weeks notice of an intention to travel overseas with the child in writing including proposed location and dates;
(17) That not less than 14 days prior to travel they provide a detailed itinerary including a copy of the parent’s and child’s returnee tickets, details of their accommodation or where they will be staying and contact details.
(18) That upon the father receiving the details in accordance with order 17(b) he will provide the child’s passport to the mother either during changeover or he will send the passport to the mother via registered post and the mother will return the passport to the father immediately upon the child’s return to the father’s care.
(19) That upon the child’s passport expiring, each party will do all things and sign all documents necessary to enable the child’s passport to be renewed with each party being responsible for payment of half the renewal costs.
(20) The child’s passport will remain in the father’s care except at times as in order ….. herein.
(21) That the mother and father be restrained from the following:
(a) From physically disciplining the child or permitting any third person to do so;
(b) From denigrating the other parent in the presence or hearing of the child or permitting any other third person to denigrate the other parent in the presence or hearing of the child.
(22) The process to be used for resolving disputes about the interpretation, implementation and enforcement of these orders is as follows:
(a) The mother and father shall do all things necessary to attend upon counselling and mediation with an organisation recognised under the Family Law Act and the Commonwealth Attorney-General’s Department;
(b) The mother and father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
(23) That pursuant to section 62B of the Family Law Act information about the family counselling service, family dispute resolution service and other courses, programs and services available is set out in the fact sheet attached hereto.
The Court has read and considered the parties’ and independent children lawyer’s outline of case documents. The Court has read and considered the written submissions filed by the parties and independent children’s lawyer in the proceedings. The Court has read, viewed and considered the documents tendered forming various exhibits in the proceedings. The Court has read and considered the family report prepared by family consultant Ms L. The Court has heard and considered the cross-examination of the parties, the husband’s wife and the family consultant in the proceedings.
There are many facts in this matter that are agreed and there are many more that are not agreed.
It is agreed that the father was born on (omitted) 1982 and the mother was born on (omitted) 1983.
The relationship commenced between the parties in or about (omitted) of 2002 and ended in May 2005. On (omitted) 2004 X was born. He is the only child of the parties. In (omitted) 2006 the mother commenced a relationship with Mr T. In (omitted) 2009 the mother relocated to (omitted) from the (omitted). On 23 June 2009 Judge Kemp of the Federal Circuit Court made orders that provided for X to be returned to live on the (omitted) in the (omitted) Shire area by 26 July 2009.
The orders further provided that should the mother have elected to return to live on the (omitted) then X would have lived with her and were she to fail to elect to return to the (omitted), X – then aged five years – would live with the father. The mother failed to elect to return to live on the (omitted) and X lived with his father. The Court notes the father indicated to the family consultant that between January until June 2009 X spent no time with the father as it is alleged the mother withheld X from him.
In (omitted) 2009, the father commenced a relationship with his now wife, Ms J. On 12 January 2011, final orders were made by consent that provided X to live with the mother and relocate with her to Victoria. X was to spend time with the father essentially every third weekend and half of the school holiday periods.
In about February of 2012, the mother relocated back to New South Wales, residing in (omitted), a suburb she remains living in until this day. The father resides at (omitted), a suburb of the (omitted). The distance between the parties’ homes is some 135 kilometres. X continues to attend (omitted) College and the child currently spends time with the father. The father collects X from (omitted), close to the Sydney Domestic Airport.
On 10 July 2013, the father commenced proceedings before this court, filing an initiating application. On (omitted) 2014, the father and Ms J married. On (omitted) 2014, the mother married Mr T. On (omitted) 2014, the mother and Mr T’s child, Y, was born. On (omitted) 2015, the father and Ms J’s child, Y, was born.
The Court has considered the evidence of the father. The father provides significant evidence with respect to the parties having what the Court will describe as poor or compromised co-parenting relationship. The father deposes to evidence with respect to X repeatedly requesting that he live with the father. The father sets out a long history of what I will describe as poor communication, including the father setting out in some detail what he deposes to being various conversations that took place where there was bad communication.
The father raises some criticism of the mother’s partner, Mr T, with respect to what he describes as an incident that took place over the Christmas break in 2013, when he noticed bruises on X’s legs. It’s the father’s position that the mother’s partner used physical discipline on X. The father deposes that he was advised by X that Mr T had hit him with a stick across the back of his legs and bottom after he got into trouble.
It’s difficult to make any findings in these proceedings with respect to whether or not Mr T has physically disciplined the child. The Court does intend, however, to make orders that the parties be prevented by injunction from physically disciplining X or allowing any other person to do so.
The father raises significant criticism of the mother with respect to what he describes as a failure by her to communicate with him about X’s health and welfare. The father deposes to the mother engaging in what he might term as inappropriate conversations with X about the proceedings. The father is critical of the mother with respect to what he describes as her non-compliance with the orders made by the Court, and raises criticism about the mother having used the surname Quest-Sharp rather than just simply Sharp in respect of X’s surname.
The father gives significant evidence with respect to his current circumstances in relation to care of X. It is clear from the father’s evidence that he loves X and X loves him; they have a good relationship. The father deposes that he currently lives with his wife, Ms J, in what he describes as a large three-bedroom home that he owns, that is has all the usual amenities, including a large kitchen, sunroom, outdoor area, front courtyard and a large, fully fenced backyard. The father deposes that X has his own bedroom which is furnished with double bunks, a desk, bookshelves and a computer and that there are two pets, being a dog and a cat.
The father deposes to X enjoying spending time at his home, including caring for the father’s animals. The father gives evidence that X enjoys his drum kit and has a bike and skateboard and scooter and a go-kart. The father deposes to the home being furnished with what he describes as electronic games, including a PlayStation 4, computer and iPad. The father annexes a copy of a photograph of X’s bedroom to his affidavit.
The father gives evidence as to his intentions to enrol X in the (omitted) School located at (omitted); that the father had a tour of the school in December 2014 and a meeting with the principal. The father deposes that (omitted) School has what he describes as extensive facilities that are connected to the (omitted) high school across the road, (omitted) College and that (omitted) School is located some 1.2 kilometres from his home and is approximately four minutes drive by car or 15 minutes walk.
The father deposes to having met with the local public primary school principal. At paragraph 52, the father deposes he has made inquiries with a local sporting club which X may be enrolled in if he chooses, including the (omitted) Club and the (hobby omitted) at (omitted). The father deposes that (omitted) Club has indicated to him that what he describes as a later enrolment will not be an issue and that X is already enrolled in the (hobby omitted) at (omitted) and he has made inquiries about finding a (hobby omitted) teacher in the local area.
The father deposes to being employed as a (occupation omitted) in various parts of Sydney, with his current hours of work being such that he’s able to look after X or alternatively have his partner do the same. The father also deposes to running what might be described as a side-business or a small business known as (business omitted), that operates in the (omitted) and (omitted) area, that the business involves the (business omitted) of (omitted) at (omitted); that the father intends to grow the business so that it is his primary method of income and that the father will concentrate on running the business on weekends when X is living with the mother so that he’s able to spend more time with X.
The father deposes to there being a close relationship between X and his wife Ms J. At paragraph 56, the father deposes to recognising the importance of X having a continuing relationship with the mother and in the event that X would come to live with him, he would happily encourage X to continue to have regular time and communicate with the mother. The father deposes to having completed multiple parenting courses, the certificates of which the Court has read and considered.
The father deposes to having what he describes as a close relationship with his immediate family and also maintaining a close relationship with the mother’s family, with whom it would appear, the mother does not enjoy such a relationship, including the mother’s father. The court notes the father attended upon the maternal grandfather’s renewal of wedding vows that took place in (country omitted). The father deposes that X has said to him, “I only get to see my family when I’m with you, Dad.”
The Court has read and considered the affidavit of Ms J. Ms J deposes to having a (qualifications omitted). She deposes to having commenced a relationship with the father in (omitted) of 2009, being married in (omitted) 2014. In paragraph 4 of Ms J’s affidavit, she deposes as having developed what she describes as a loving and close relationship with X, and that X greets her with kisses and cuddles and will often say to her words to the effect, “I love you, Ms J.”
Ms J sets out in her affidavit that she has sought to remain out of an ongoing conflict between the mother and father. However, at times, Ms J deposes she has read over the father’s emails prior to them being sent to the mother. She deposes to there being incidents where the mother has not sought to promote the relationship between X and the father. Ms J gives some evidence with respect to what I will describe as the McDonald's (omitted) incident that was the topic of significant cross-examination and the subject of the tender of a DVD recording that evidences what is best described as an altercation between the parties.
Having considered the DVD and the parties’ cross examination, the Court is left in the position where the Court cannot make any findings about who was at fault in the altercation. It is clear that an altercation took place, and it’s also clear that the altercation took place in front of X. It is disappointing that the parties engaged in an altercation. It’s very much a case where the video evidence is not so clear as to allow the Court to make any findings as to who might be the party at fault. It is simply a case where an incident took place in the McDonald’s car park at (omitted). It took place on 22 June 2014. It’s apparent that the father made some complaint to the police initially. The mother also made a complaint to the police. The Court cannot make findings of fault. It is disappointing that X was exposed to the incident.
Ms J deposes to having a conversation with X whereby it is suggested that he disclosed that the mother’s partner, Mr T, had hit him with a stick. Again, it is a matter the Court cannot make findings about, but the Court does propose to make an order that the parties be prevented by injunction from physically disciplining the child or allowing any other person to do so.
Ms J gives further evidence to observing what she describes as a warm and loving relationship between X and his father. Again, she deposes to living in a three-bedroom home, that has what I will describe as the usual amenities. In paragraph 23 she deposes to being available to assist the father with the care of X and that X had previously lived with the father between June 2009 and January 2011.
At paragraph 24 Ms J deposes to her university qualifications enabling her to assist X with his learning and his homework and to assist him in what she describes as catching up in the event there is a gap in his learning as a result of changing schools. Ms J deposes to recognising the importance of X maintaining a relationship with his extended family, including the attendance upon the maternal grandfather’s holiday in (country omitted) for the purposes of witnessing a renewal of wedding vows.
The Court has read and considered the evidence of the mother contained in her affidavit material in the proceedings. The mother sets out that she is living in (omitted); she resides there with her husband, Mr T, and they have a child, Y, born on (omitted) 2014. The mother deposes to ceasing the relationship with the father when X was only some 15 months of age. The mother deposes to being the primary caregiver to X since his birth other than during the period of the court proceedings that she describes between 2009 and 2010. The Court has already referred to issues relating to the mother’s relocation and the child thereafter living with the father, pursuant to interim orders made by Judge Kemp.
The mother gives significant evidence with respect to the things she does for X, including looking after his everyday needs, his educational needs, paying his schooling fees and X being enrolled at the (omitted) Club that is a local (hobby omitted) club two minutes from where the mother resides with her husband. The mother deposes to doing such things with X including taking him to the beach for swims, exercising in local parks, playing sport and kicking a ball around, going to the (park omitted), where X enjoys riding his bike, scooter and plays basketball, playing his Xbox and iPad, having hot chocolates in the (omitted) café, and X enjoying spending time with his baby brother, Y.
The mother deposes to X having many favourite foods in her household and that he enjoys eating such things as (omitted) and various other foods including desserts. The mother deposes to providing an environment that is positive for X and that X has framed family photographs, glow-in-the-dark stars and a desk full of crystals, toy cars, books where he displays his own art.
The mother gives evidence that X is an energetic, soft, big-hearted, affectionate, happy boy who likes to be a part of every conversation and to be involved in what she describes as every part of their daily lives and family. The mother deposes that he loves spending time with her husband Mr T and playing sports, that X is interested in (hobbies omitted) and going to the beach and learning how to (hobbies omitted). He loves riding his bike and reading factual books such as the Guinness Book of World Records.
The mother deposes that X loves his school and there has been some discussions with X attending the (omitted) High School, so he could ride his bike or catch the train to school by himself. The mother deposes to X being engaged with the idea of a new school, including studying art, metal work or wood work. The mother deposes since February 2014 X has seen his father each fortnight and there has been very little or what she describes as non-existent extra time requested. The mother deposes to the father not being involved in X’s school events, including school carnivals, school swimming carnivals or other occasions including school carol performances.
In cross examination the mother asked the father various questions about the father’s interaction with the school and it would appear the father has had some interaction but probably not as much as he might otherwise have had in circumstances where the parties’ household is a considerable distance apart. Again, the mother was highly critical of the father and his failure to attend such things as sporting carnivals or collect X from school.
The mother deposes to herself and Mr T attending every one of X’s school games, even on weekends when X was not with them. The mother deposes that the father doesn’t attend any additional (hobby omitted) games; that she paid for the (hobby omitted) shorts, (omitted) and boots. A feature of these proceedings is a complaint by the mother with respect to a failure by the father to contribute towards the child financially.
The mother attaches what I will describe as large slabs of email correspondence to her affidavit. What it evidences to the Court is what I will describe as a poor relationship and poor communication between the mother and the father. The mother gives significant evidence as to what I will describe as the (omitted) McDonald's car park incident on 22 June 2014. The mother deposes to it physically affecting her. The mother gives evidence at paragraphs 64 through to 91 as to what took place, that the Court has read and considering, including the mother attending upon the police station and making a complaint, and the affect it had upon the mother in circumstances where she was pregnant.
Again, the Court has heard the parties’ cross-examination. The court has read the affidavit material filed by the parties with respect to the McDonalds incident and has watched and considered the DVD that was tendered during the course of the proceedings. The Court is not in a position to make a finding about who was at fault in the proceedings. It is what I will describe as a most unfortunate event that should not have occurred but did occur in front of X and no doubt it caused X significant distress.
The Court notes that the mother indicated she was so distressed that she spoke to her partner, Mr T, about the (omitted) McDonalds incident and then ultimately Mr T spoke to the father about it. Again, the Court cannot make any findings about what took place between the father and Mr T, and the Court cannot place any weight on whether either party said things they should not have said. That is whether the mother should not have said anything to Mr T, whether Mr T should have spoken to the father about the incident and what took place between the father and Mr T when Mr T spoke to the father. The Court is simply left in a position where the evidence is contested and the Court is not in a position to make findings about it, even having heard the evidence tested during the parties’ cross-examination.
The mother raises complaints against the father failing to properly provide X with food. In paragraphs 142 and 143 of her affidavit, the mother deposes to an occasion when X returned and was hungry after telling the mother that he was only given one spicy wrap to eat. The mother, at paragraph 148 at paragraph 149 gives evidence that she is concerned about the games that are played by X at the father’s household, including her and her partner explaining to X their dislike of and danger of playing with guns and never touching or playing with real guns in circumstances where the mother is making some complaint that the child has played Grand Theft Auto.
The mother deposes to the father paying what she describes as extremely low child support. The mother annexes and marks with the number seven (7) a copy of a child support assessment. The Court notes that there was a later assessment in August 2014 in an amount of some $89.88 per week as opposed to $6.94 as set out in the affidavit. In any case, having regards to the affidavit, it is obvious that there is an ongoing dispute between the parties. The parties have what the Court can only describe as extremely poor communication. A feature of their poor communication is that relating to monetary support, child support or otherwise monetary contributions to the child.
The mother suggests in her evidence a dispute about (hobby omitted). It appears to be an ongoing dispute and there is a real dispute about what I will describe as extracurricular activities. I will deal with the issue of extracurricular activities when going through the provisions of the Family Law Act 1975.
It’s safe to say that having read the parties’ affidavit material, the Court is left in a position where it considers the benefit of the child having a meaningful relationship with both parents is far more important to that of the child perhaps attending upon such things as (hobby omitted) and I propose to make orders about what the parties must do and do not have to do with respect to requiring the child to attend upon extracurricular activities, noting the distance the parties live apart from one another.
The evidence suggests ongoing disputes about X’s attendance at special occasions including weddings. Again, the Court notes that the parties’ communication is such that in a large respect they have not been able to overcome issues that might arise when negotiating additional time. There is issue with respect to overseas travel. The mother points to incidents with respect to X travelling to (country omitted).
It’s the view of the Court that the Court will need to make orders for the purposes of allowing the parties to travel overseas in circumstances where the parties are unable to communicate or overcome the difficulties that might arise if one party seeks to travel overseas and simply hope the other party will agree to allow them to travel.
The mother raises issues with respect to social media involving X. The mother sets out in her affidavit material that she has spoken with Ms H, X’s current teacher and asked how X was going and X is what is described as well-settled at his current school. The mother deposes that she asked X whether X had mentioned possibly moving or changing schools to her and she said that X had not mentioned anything to her and that X often talked about Y and also Mr T.
The mother deposes that during a recent telephone conversation, X said to the father that he wanted to live with him at the end of school this year and that the father said it was something that they could discuss. A feature in the mother’s case is that relating to X having changed his mind, and I will cover that issue separately in this decision.
The Court has read and considered the annexures to the mother’s affidavit material. It’s safe to say that the mother is doing everything she can possibly do to ensure that X enjoys living in her household. The Court has considered the evidence of the family consultant, Ms L, including the evidence given by her during the course of cross-examination, and considered the family report in detail. The family report is demonstrative of Ms L having an understanding of the current arrangements, including there having been interim orders been made, her understanding as to where the parties both reside, her understanding as to the parties’ current employment.
The family consultant sets out in the family report a history with respect to the care and living arrangements for X, including the circumstances in which X came into the father’s care, following orders being made by Judge Kemp in June 2009. The family consultant sets out her understanding of the current arrangements with respect to X living with the mother and spending time with the father.
The family consultant reports that there are significant other people in X’s life, including Ms J, Ms A, the paternal grandmother in the father’s household, Mr T and Ms D, the maternal grandmother in the mother’s household, and that X reports a positive, caring relationship with Ms J and an ambivalent relationship with Mr T, stating that X said, “I like spending time with him sometimes.”
X was reported to have positive, strong relationships with the maternal and paternal grandmothers. The Court doesn’t give a great deal of weight, necessarily, to the view that he liked spending time with Mr T sometimes in circumstances where the Court is of the view that X, in fact, does like having a relationship with Mr T, and certainly the relationship between Mr T and X is not one that is determinative of the orders I propose making in the proceedings other than to say that the Court is of the view that despite Mr T having not filed an affidavit in the proceedings, the Court is of the view that the child has an appropriate relationship with Mr T and that X enjoys a loving environment in the mother’s household.
The family consultant sets out her understanding of the parties’ competing proposals and what might be described as the issues in dispute, including that of parental responsibility and a competing lives with application. At paragraph 21 of the family report the family consultant sets out what she describes as further issues of concern, that the mother’s narrative is not consistent with the known facts of the case. The family consultant suggests the mother changes her stories when confronted with the facts and appears lacking in insight into the impacts of these ordered narratives. There is continued friction between the parents regarding finances, in particular, child support for X. That is very much evidenced in the affidavit of the parties and having heard the parties’ cross-examination.
The family consultant reports that there are inconsistent narratives between the parents regarding attempts from the father to spend time with X, and the court notes that is very much a feature of the parties’ affidavit material. There is a complaint that the mother has failed to allow the father to spend time with X. The mother refutes those allegations.
The mother’s statement of X’s views are in stark contrast to the views of X as given by him to the family consultant. The mother requests a change of name for X and suggests that X wants such change. X reported to the family consultant that he does not want a change of name. The mother reported that X wants to live with her and spend time with the father. X reported to the family consultant that he wants to live with the father and spend time with the mother.
The Court is of the view that despite what the mother might have told the family consultant, X has expressed strong views – that he wants to live with the father and so much is set out in the mother’s affidavit save and except that just prior to the proceedings, the mother caused the child to be taken to the family consultant for the purposes of the child expressing to the family consultant a change in his views, a change in his views that he does not want to live with the father, but instead live with the mother. And I will canvas that issue later on in the decision.
The family consultant opines, “The parents appear unable to communicate effectively regarding X’s wellbeing” and the court finds that conclusion is evidenced by the material contained in the parties’ affidavits and demonstrated by the evidence given by the parties during the course of cross-examination. It is noted the parties did reach an agreement on the day of the interviews, including no person physically disciplining X and X not being exposed to alcohol abuse or illicit drug use. I propose to make some orders in regard to the parties’ agreement.
A further agreement was reached whereby a passport be obtained for X and that X will spend half the holidays and time – significant occasions with the party he does not live with, and that there will be telephone communication with X with the non-resident parent each Monday, Wednesday, Thursday and Saturday. I propose to make some orders about the parties’ agreement.
The father was interviewed during the course of the preparation of the report. The family consultant notes the father presented at the family assessment centre at the designated time. He was accompanied by Ms J. His demeanour was pleasant, nervous and approachable. The Court notes the father having disclosed his childhood had sometimes been hard and sometimes good and that he witnessed violence in the relationship between his mother and his stepfather.
The father reports what might be described as use of alcohol socially, which included a couple of beers on the weekend. The family consultant sets out that the father recorded that he took drugs as a teenager, particularly taking ecstasy and marijuana from about 18 years of age until he was 20 years of age. He reports that he stopped using any drugs when he met the mother.
The family consultant sets out that the father reported to her that he had been in a relationship with Ms J since (omitted) 2009. They moved in together shortly after meeting one another and were married on (omitted) 2014. The family consultant sets out that the father described his relationship with Ms J as perfect, adding they get on very well and they are loving towards each other.
The father reported to the family consultant the mother was physically violent towards him on occasions, although he reports he did not need to take out an AVO at any time. He reported that there was significant abuse at about the time the parties separated in 2007 when the mother accused him of sleeping with a long-time friend. He reported to the family consultant that the mother threw a fist at him and X was in the middle of them.
Again, these are matters the Court cannot make findings about. They are allegations. The allegations are not admitted. Despite the cross-examination of the parties, the Court is not in a position to make findings about there being family violence between these parties. It is just simply not able to do so on the strength of the evidence before the court. The family consultant sets out that there was no subpoena material that support or refute the narrative with respect to there being family violence.
At paragraph 30, the family consultant set out factors which may impinge on the father’s ability to parent and which may impinge upon X’s wellbeing identified as his experience of being parented by a father who was not present and a stepfather who abused alcohol and was violent towards him and his brother and his mother and having experienced multiple father figures and a mother who was a victim of domestic violence.
Having read the father’s affidavit material, having heard him cross-examined, having read and considered the affidavit of the father’s wife, having heard cross-examination in that regard, the Court is not of the view that the father’s ability to parent will be impinged as a result what experience he may have witnessed or have been subjected to during his childhood, whether he was exposed to a violent stepfather who abused alcohol, who was violent towards him and his brother and his mother having suffered domestic violence, the Court does not make that finding.
At paragraph 31, the family consultant sets out concerns raised by the father that include that X reported saying the mother is not a nice person. The Court does not accept that X does not love his mother and the Court is of the view that X thinks his mother is a nice person.
The proposition that X is unhappy with the mother goes against the evidence of the parties in the proceedings. The evidence the Court accepts in these proceedings is that X has a good, loving relationship with his mother. The Court accepts that there is very poor communication between the parties. And with respect to the changeover point for the parties, the Court does accept that Sydney Airport is far closer to the mother’s residence than that of the father’s residence, and for that reason the Court is at least of the view that the (omitted) McDonald's is probably the more appropriate place for a handover.
The Court has considered the family consultant’s report with respect to the interview of the mother. Again, the mother presented at the family report assessment centre at the designated time. She was accompanied by Mr T and X. Her demeanour was noted as pleasant, keen and highly strung. She did not make eye contact with the father and was anxious to start her appointment.
The mother reported that unfortunately her nan had passed away, aged 89, the Sunday prior to the interview and the family consultant opined whether that might impinge upon the mother’s ability to focus in the interview. The mother reported to the family consultant a childhood disrupted by her parents separating when she was nine-years of age. The mother reported that she lived with the maternal grandmother until she was 13 years of age, adding she spent time in the next two years with the maternal grandfather and at about 15 moved out on her own, living in various places, supporting herself by working in different jobs, including (omitted).
The mother reported that growing up she mostly parented herself, as her mother was out gambling and added that she is still a gambler. The mother reported that there is an ongoing relationship between the maternal grandfather and her younger sister as he is now quite wealthy and her younger sister is drawn to that. The mother reports she does not like that her father puts his new wife first, adding that at one time she had an AVO protecting her from her step-mother.
It is clear there is a long history of difficult relationships in the maternal side of the family and the mother is estranged from her father. The Court does not make any findings that are adverse to the mother with respect to why it is that she is estranged from her family. It is just a fact that she is, and the mother feels poorly about her father. It is nothing the Court can cure in these proceedings.
The family consultant sets out that the mother reported to using alcohol socially and that the mother would not consume alcohol when X was in her care. The mother reported that occasionally she would have a glass of wine at dinner, and that while she works for an (employer omitted) company and so there were a few functions at work that she will attend she does so when X is not in her care. The mother denied having what might be described as alcohol-related driving convictions. The mother denies using illicit substances.
The mother deposes to having a strong relationship with her husband, Mr T, and that Mr T has a good relationship with X. The mother reports that Mr T does not abuse alcohol nor does he use illicit substances and he does not have a significant history of illicit-substance use. The mother reported that there was no family violence in the relationship with the father and the mother alleges the father was not socially or financially controlling.
The mother reported that she hadn’t at the time of the interviews completed a parenting after separation course. The mother alleged that there were what are described as an unusual number of accidents whilst X was in the care of the father that resulted in moderate to severe physical injury, the most serious being sustained by X in the father’s care on 20 May 2012 where he injured himself on a bike and sustained grazed arms, knees and sore shoulder.
Ultimately, the mother reported to the family consultant that she was required to take X to the doctor. It is the mother’s position with the family consultant, contained at paragraph 42 that the father is unduly influencing X to live with him. The mother reported she was concerned following a conversation she had with X regarding their visit to the family consultant and the mother reported that she had informed X that the reason they were attending, “Because your dad wants you to live with him and he does not want you to live with me and Mr T.”
The mother reported to the family consultant that she spoke to X about the importance of children living with their mothers and was concerned about his response. X is reported to have stated to the mother that he wants to live with the father and Ms J, adding that Ms J is a step-mum and she is a mum. The mother advised the family consultant that this response would be unlikely to have come from a child, feeling that X was quoting the father and that this was not his own real opinion.
The mother reported previously X had always said he would like to live with the mother and Mr T. The mother informed the family consultant that “he has a happy life with us”, adding that “he is my life”. The family consultant identified factors that may impinge on the mother’s ability to parent and impinge upon X’s wellbeing and they included the mother’s disruptive childhood and subsequent lifestyle that appears to be characterised by multiple moves.
Again, the Court makes no finding that the mother is unable to properly care for the child or provide a good household for X in the circumstances where she had a disruptive childhood, nor as a result of the inconsistent narratives given by the mother and the mother’s focus on the financial situation between the parties. The mother stated to the family consultant that her health is good. She added that she suffered two miscarriages in the last 18 months and she decided not to try again until her Court case was finalised. The Court notes the mother has now had a child.
Concerns raised by the mother to the family consultant include X returning from the father’s care with multiple bruises, that the father is away on his business and is not able to care for X on a full-time basis, the father may not enrol X in a (omitted) school, and that X would not be fed appropriately in the father’s household.
The mother’s views on shared parental responsibility are that it would not be in X’s interest and that the father does not take responsibility seriously. The mother expressed a view to the family consultant that it would be in X’s interest to spend significant time and communicate with the father. The Court notes that Mr T was interviewed during the course of the report. He is a full-time (occupation omitted), working with (employer omitted). He is available to assist with the care of X.
The family consultant noted Mr T viewed is his role with X as that of a stepfather. Mr T advised the family consultant that X is a great child. He advised that he is firm with X, but he is a good friend and they enjoy sport together. He said that his main role with X is to love and respect the mother and to support their strong relationship. Mr T recorded that he used to play for the (hobby omitted) and that he enjoys sport.
Mr T reported to the family consultant, as set out at paragraph 51, that he has a good relationship with the mother, that the relationship does not include violence of any kind. Mr T advised that they currently live in a two-bedroom flat in (omitted) and enjoy a lifestyle that this provides. They have a bedroom set up for X. It was his view that X should remain living with the mother as the mother and X have what he describes as a strong, loving bond together.
Ms J was interviewed during the course of the preparation of the family report. She described her relationship to the family consultant with the father as, “He is my rock. I love him.” She reported the father can lose his temper a little bit, adding it takes a long time to get there and his temper does not frighten her. She added that there has been no family violence of any kind in their relationship and she supports the father attending counselling, and supports the communication between the parents.
Ms J reported that she worked as a (occupation omitted) and advised the family consultant that should X be placed with the father, she would be able to utilise a care service and assist the father with the care of X.
Ms J also grew up in a family where her parents separated. Ms J reported that her greatest concern for X at the moment, at the time of interviews, were the parents’ communication not being very good and that she was concerned that perhaps the parents may end up using X to talk to each other, and from her perspective this would be the wrong thing for X.
Ms J reported having no concerns for X in the care of the father. That he is a good father. And that she added if X were to live with them, it would be important for the father to obtain work closer to home so he could be there more for X. She raised some concerns for X’s care by the mother, including that the mother’s work hours are long, and that X has nowhere to play as and no one to play with as they live in a flat.
X was interviewed by the family consultant. At the time he was interviewed, he was 10 years of age. It is important for the parties to note what the family consultant said. X presented as a happy boy who was pleased to see the father and spent the waiting time with him, chatting and looking through magazines. He appeared to be developmentally within normal parameters.
The family consultant noted that X attends the (omitted) College. X reported he does not like school and reading is the most difficult. He reported to enjoy maths and not enjoy religion. His interests are recorded as (hobby omitted) for (omitted) and playing with his dog, (omitted), at the father’s home. X reported he did not remember the parents living together prior to separation and he described the adults in his life in the way set out below.
When asked what they would be if they were animals, he reported the mother would be a hyena, because they are mean and mum is mean. He reported that Mr T would be a lion, because he is big and they can beat hyenas. When describing his father, he reported he would be a cheetah, because he loves cheetahs, as they are his favourite animals. “I love my daddy.” He added that Ms J would be a cheetah, “because I love cheetahs and I love Ms J.”
The Court doesn’t know what weight it can give to a child talking about what animals the parties might be and to be quite honest paragraph 61 of the family report provides little insight or assistance to the Court. At paragraph 62 the family report sets out, X reported enjoying spending with the father, because he is fun, happy and nice and he would not ask me where I wanted to live. He reported that spending time with his father is a positive experience for him, as they have lots of activities for him to do, such as bikes and (omitted) to ride, a cat and a dog, friends next door, iPod Touch, Xbox playstation. They have good food and a clean, happy, calm and peaceful house. The family consultant noted that there is nothing X reported the father could change to make his life happier.
X reported he does not enjoy spending time with his mother because the unit they live in is a mess. That life with the mother is boring and disgusting, adding that there was a cockroach in his food. He reported there is nothing to do at the mother’s house and the unit is filled with fruit flies and Huntsman Spiders. He would like to change things at the mother’s household including that she is nice to him. The family consultant went on to set out that when X asks the mother for something X reported the mother says she will think about it and X reports he believes she does not even think about it, adding that he would like her to think about it and give him an answer.
X reported that he did not wish to have his name changed. When going back to the views of the child, the Court does not accept that the mother’s home is fruit-fly infested or spider infested. And whilst the unit may be in a mess, the Court cannot make findings the accommodation provided by the mother is unacceptable. It simply cannot. The mother should take on board what the child said. That is if X does ask the mother for something, she should probably give him a definitive answer rather than simply saying, “I will think about it.” But it is really – from what the Court can read and has considered, it is just a matter of parenting styles.
X reported he did not wish to have his name changed from X to X. It is in stark contrast to what the mother tells the family consultant. X clearly articulated his desire to maintain the same name as the father and did not want to change it. X reported that the mother had repeatedly asked him to change his name and he told her he did not wish to do so. It appears that X is being frustrated by the mother’s continued questioning.
X added that prior to the interview with the family consultant the mother asked him where he would like to live. X reported that he told her he wanted to live with the father. X reported that the mother then told him that if he told the family consultant this, things would change, “You will want presents, chocolates and a (omitted).”: This is noted to be a particular savoury dish the mother prepares. “And you will not get this with the father.” The mother denies this interaction occurred.
The mother was clear to the family consultant that she had discussed with X his wishes. The family consultant noted X was able to state his clear views on the proposal of both parties and he said he would like to live with the father and spend time with the mother every three weeks, as he reported he did not want to see the mother for six weeks after the school holidays, as this is what she has made happen with the father and he really misses the father.
X reported that in the Christmas holidays he would like to spend two weeks with the mother and four weeks with the father. He added, “Also I have not had a birthday with my dad since my birthday was on a Saturday.” Adding that as a result of his, he wanted to be with the father on his birthday for two years in a row and then the third year with the mother, and then two years with the father.
X reported that before the interviews with the family consultant, the mother told him that all children should live with their mothers and X wanted to tell the judge that this is not the truth, stating to the family consultant “I think I should live with my dad.” The mother confirmed with the family consultant that she did tell X something to that effect. Paragraph 67 of the family report is important to note. The family consultant opines these views are developmentally appropriate as X is a 10-year old, who developmentally may want to spend more time with the father as a male role model to do more on consolidating gender-appropriate identification. These views according to the family consultant show maturity and his ability to reason through his unhelpful interactions with the mother and his capacity to seek comfort and reassurance from other female role models in his life, such as Ms J.
The family consultant opined that X’s views may be influenced by conversations with the mother prior to the interview with the family consultant. Far removed from the mother’s position – that X’s views were influenced by the father. The family consultant suggests the views were influenced by the mother and it may well be that the views were influenced by the mother to a negative extent, that is, the questioning of the child has led the child to have negative views about remaining in the mother’s household.
In observations between X and the father, X was observed to approach his father in a loving, close way. They sat close together on a sofa with X occasionally putting his head on his father’s shoulder and the father responding with a hug. They decided together on which game to play and attempted to work out the rules in a collaborative way. It appears they enjoyed each other’s company and a close, positive relationship was observed, demonstrating a close, positive attachment.
In observations between X and the mother, X was observed to take out a different game than the one they had been playing with the father. X and the mother played cooperatively and appeared to have a way to manage the game rules that suggested playing was something that they did together at other times. Again, the Court accepts the mother has a good relationship with the child. The relationship between the mother and X appeared to be positive and close, demonstrating an appropriate attachment. Again, the Court accepts there is a good attachment between X and the mother and that there is a strong relationship between them.
The children’s relationship with significant others was considered. X reported that he had positive relationships with both Ms J and Mr T. He added that “with Mr T”, I asked him to go for bike rides and he says yes sometimes and then no sometimes, adding that he is mean sometimes and nice sometimes, in a normal way.
The Court accepts that parents or step-parents cannot just accede to the requests of a child on every occasion. There is sometimes competing priority in households that means that one cannot take a child out for a bike ride every single time they ask. What is important – that X added he enjoyed spending time with Mr T. X reported that Ms J is nice and funny, and that he really enjoys all the time he spends with her. He reported that with Ms J, “We talk, make salads, have bike rides, go to the skate park, sit together and I hug her.”
In observations between X and Mr T, X was observed to interact well and engage in conversations about the golf game. In observations between X and Mr Sharp, X was observed to communicate easily and appeared to have no difficulties and challenge her in the rules. At the end of the observations, X gave her a hug. The family consultant then embarked on what I will describe as an evaluation. The family consultant set out what she said as the impact of the father’s proposal on X and that it would be that X would be living with the parent he has chosen to live with.
X stated on several occasions, through several questions, that his preference would be to live with the father, as he believes his needs are better met in that environment, adding he also has a positive relationship with Ms J who supports him. The family consultant opined that the further impact on X with the father’s proposal would be that he be required to have another change in his living situation, including another change of school.
The family consultant opines, “The impact of the mother’s proposal on X will be that he is not living with the parent he would like to reside with.” In the interview with the family consultant, X was articulate and clear about where he felt his needs would be met in the long term. X was clear about not wanting to reside with the mother any longer. X reported the mother is mean and angry and he does not wish to live with her any more.
It is clear the mother must be hugely emotionally distressed about X expressing views that he does not want to live with her, in circumstances where the mother, on the face of her affidavit, being matters the Court accepts, has done everything she can possibly do to provide him a happy household. Nonetheless, despite providing what the Court might describe as a good household, a happy household, doing things, such as taking him down to the local café, buying him hot chocolate, giving him food that he likes, he just wants to live with his dad.
The mother has questioned X, because by the look of it she is upset that he is expressing those views. She has tried to influence X. But in doing so has upset him. X does not want to be questioned anymore and saying that the mother is mean and angry may well be, because the mother is asking the child questions over and over again about where he wants to live and often after receiving an answer she does not want then tries to enforce the view that X should live with her.
At paragraph 73, it sets out, “It is a concern that neither the father nor the mother were able to think through a resolution to X living in one area and spending most weekends in another area despite who he resides with in the main, as their living situations are stated to be stable and not able to be changed.” The family consultant opines, “It is concerning the mother appears to have her own version of events, at which times is contradictory to agreed facts.”
For example, the mother initially reported that the father had nothing to do with X when he was younger. The family consultant reminded her of the time X lived with the father for 18 months and the mother responded with an exception, saying, “Well, okay, he cared for him. But at no other times.” The Court has some concerns about the value the mother places on the father’s relationship with X.
The mother fails to take into account that this child is no longer a little child. He is some 10-11 years of age. Whatever orders had been previously made by the Court were made at a time when the Court did the best it could making decisions based upon the evidence at the time the court felt were in the best interests of X. The Court must do the same again. The Court cannot simply just defer to a set of previous orders and maintain what the Court might describe as a status quo and simply apply that status quo because that is what the Court found previously. There has been an exploration of evidence in this matter.
The independent children's lawyer, in the view of the Court, has provided what the Court will call assistance to the Court, putting evidence before the Court where necessary and appropriately asking questions during cross-examination that needed to be asked. The independent children's lawyer has interviewed the child and has proposed a set of minutes of order that the independent children's lawyer feels is in the best interests of the child. And it is not the role of the independent children's lawyer to agree with one party simply for the sake of agreement or advocate on behalf of one party.
The independent children's lawyer has formed, in the view of the Court, an independent view having regard to the submissions made by the independent children's lawyer and sought orders that accord with that view. The Court does not accept the criticism of the mother levelled at the independent children's lawyer. What it does demonstrate is a failure by the mother to understand the changing needs of X, a failure to give weight or accept that X has changed his view, and the failure by the mother to accept that it is not appropriate for her to seek to influence X’s view to the extent that she has.
The Court has otherwise read and considered the balance of the submissions made by the mother in the proceedings with respect to the orders that are sought. The Court is required to consider those matters set out at section 60CC following the legislative pathway provided for in Goode & Goode. Section 60CC(2)(a) and (b) provide for what are called or termed as primary considerations, (b) having primary over (a). The Court must consider the benefit of a child having a meaningful relationship with both of the child’s parents.
It is the view of the Court the child will benefit from having a meaningful relationship with both the mother and the father. It is the view of the Court that either set of orders proposed by the parents or the independent children's lawyer will allow the child to have a meaningful relationship with both parents. That is, if I made orders in accordance with the mother’s orders or the father’s orders or the independent children's lawyer’s, save and except about the mother indicating that if she moves away things might change.
If they were to remain as they were – that is, the parties living where they were for the time being, that is, the mother in (omitted) and the father to remain at (omitted) – the orders would allow the child to have a meaningful relationship with both parents. And there is a benefit to the child in doing that. Having considered the evidence with respect to the incident that took place at the (omitted) McDonald's, having considered the allegations made against Mr T, having respect to the allegations made by the father against the mother with respect to some family violence taking place at or about the time of separation when the mother accused the father of having an affair, the Court finds that X will not suffer physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either party’s household.
The Court considers the additional considerations found at subparagraph (a) of section 60CC(3). Section 60CC(3)(a) provides the Court must consider:
Any views expressed by the child and any factors, such as the child’s maturity or level of understanding, the Court things are relevant to the weight it should give the child’s views.
This child desperately wants to live with his father. The mother has sought to influence his views, to the child’s detriment. The child’s views should be given weight. He has demonstrated a level of maturity and understanding in the way in which he has spoken to the family consultant. The family consultant suggested the views should be given weight. The Court gives X’s views significant weight in circumstances where he talks about the type of relationship that he wants with his mother and the frequency of time where he lives with his father.
The Court does not accept - because one must consider the level of understanding, not only maturity, the Court does not accept the views of the child with respect to there being some period of time after the holidays where he would not spend time with the mother. The Court does not necessarily accept the views of the child with respect to him not having a good relationship with the mother and Mr T in circumstances where X does not have an understanding, perhaps, of the obligations or priorities in a household where there is a new baby. X just does not have that understanding.
But X does have an understanding and level of maturity the Court should give weight when he is talking about where he wants to live. He wants to live with his father. The matters set out in the family report support the Court giving those views weight.
I must consider the nature of the relationship of the child with each of the child’s parents. This is a little boy who has a good relationship with both of his parents. It is good save and except that the mother has been placing pressure on the child to conform to her desires that he remain living with her.
And the Court understands why the mother might want to do it. She is going to desperately miss this little boy. She probably thinks, “What more could I have done? I could not have been a better parent. I provided for him as best as I could and I provided well.” Nevertheless, this little boy wants to live with his father. The mother needs to accept that. And her relationship will be fractured. The nature of her relationship will be compromised if she seeks to criticise X for his views, if she is unaccepting of his views, if she does not accept that is what he really wants to do that and then love him anyway.
But for the better part of it, the nature of the relationship between the child and both parents is a good one. The court considers the nature of the relationship with any other person, including grandparent and other relative of the child. He has a stepfather and a stepmother, and he has a sibling at the mother’s home and will have one at the father’s home. The Court does not know about the relationship between X and his new siblings but the Court imagines that it will be a good one, probably one where both parents foster that relationship with their new child.
And the Court accepts that X has a good, loving relationship with the father’s wife and the mother’s husband. They are his stepparents. They will not replace the parents. The view of the Court is that X has a good relationship with them. It is hoped that both parents, both the father and mother, will realise that and they will seek to encourage X’s relationship with the other parent’s spouse. The Court must consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and communicate with the child.
The mother criticises the father. The Court does not accept that criticism. These are parents who just simply do not agree on what is in the best interests for their child. They do not agree on many things, including the amount of time perhaps one parent should spend with the child, or the living arrangements for X. But they are furiously participating in these proceedings, putting forwards as best as they can what they think is in the best interests of the child. They have certainly participated in making decisions about major long term issues in relation to the child, and they have participated in spending time with the child and communicating with the child.
The Court cannot make any findings about the extent to which each of the parents has failed to fulfil their obligations to maintain the child, that is, monetarily maintain the child. The mother raises significant criticisms against the father. The Court is not in a position to make any findings about it, and to be honest it is not a fact that the Court would find determinative or give sufficient weight in the current proceedings. The Court must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents or any other child or any other person, including any grandparent or other relative of the child with whom he or she had been living. The effect, in the view of the Court, will be a positive one. X will finally get what he wants. He will get to live with the father.
The Court is of the view that the effect of the separation of X from the mother will not be detrimental, in that X will continue to spend each alternate weekend with the mother. X will continue to be able to maintain a meaningful relationship with the mother. He will continue to be able to maintain a relationship with his step-father and with his sister. The Court is of the view that the effect of the separation of X from his mother, step-father and sister will not cause detriment to the child. There will be positives out of it, in that hopefully, the relationship between the child and mother will simmer down in circumstances where X is living with his father in a household he desire to be living and that there will be no point in the mother seeking to try and change X’s views as the proceedings will have finalised.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. The Court turns to the issues when considering handovers, and the tyranny of distance that exists between the parties. I cannot change where the parties live. The family consultant looked to the fact that the parties could not come to some arrangement whereby the parties might do something differently. As the family consultant at paragraph 73 said:
It is concerning that neither the father nor mother are able to think of a resolution to X living in one area and spending most weekends in another area, despite who he resides with in the main, as their living situations are starting to be stable and unable to be changed.
It is what it is. One lives in (omitted) and one lives on the upper part of the (omitted) at (omitted). It is the view of the Court though that the travel on a Sunday should be borne as close as is possible to equally and in that regard, rather than handover taking place at the airport, it is the view of the Court that the handover should take place at (omitted) McDonald's. The other issue that I must consider, and I will go back to it, is the views with respect to the change of name for the child. The child has expressed very strong views about change of name and the view of the Court, given the age of the child, the Court accepts those views.
It gives those views about the child maintaining his current name significant weight.
I must consider the capacity of each of the child’s parents and any other person, including grandparent or other relative of the child, to provide for the needs of the child, including their intellectual emotional needs. I can make no criticism of the mother. She has provided for X’s needs, including his intellectual and emotional needs, and she must wonder why X does not want to live with her. Unfortunately for the mother, it is what it is and X has expressed strong views that he wants to live with the father and the Court does not accept the change of views of X in circumstances where the mother suggests that he has changed his views after her disclosing to him that she may move away; that things cannot remain the same living with the father and spending time with her.
X has no understanding about what that might mean and in that regards, the Court does not give those views weight, if indeed, they are views, having regards to the way in which the Court obtains a child’s view having regards to section 60CD. The Court does not accord those views any weight. The Court does accord the views of the child set out in the family report as having significant weight. The Court accepts that the child has a sufficient level of maturity and understanding to know that he does not want his name to change. The Court gives those views extreme weight.
The father has the capacity to provide for the needs of the child, including his intellectual and emotional needs, and the court has had regard to the evidence of the father with respect to his household. If X goes to live with his father, the father will provide for X’s needs, including his intellectual and emotional needs. The mother’s husband and the father’s wife can do the same as well. They are able to provide assistance to both parties. They are people who also can provide for the needs of X, including his intellectual and emotional needs.
The Court must consider the maturity, sex, lifestyle and background of the child and the child’s parents and any other characteristic of the child the Court thinks is relevant, including lifestyle and culture and traditions. This is matter where the child has been attending upon a (religion omitted) school. There is a real issue in these proceedings about the child’s religion and it is the view of the Court that having regards to that factor, the Court will make orders for the child to attend upon a (religion omitted) school, in circumstances where there is evidence before the Court that supports that outcome. There is insufficient evidence before the Court that would support another outcome with the child attending upon a sports high school, in circumstances where the Court considers it important that X has grown up in a (religion omitted) education system, in circumstances where X has been spending time in the (omitted) area and if the child attends the (religion omitted) School primary school there are other children in and around that area he can make friends with.
X is not an Aboriginal or Torres Strait Islander child. The Court must consider the attitudes to the child and the responsibilities of parenthood demonstrated by each of child’s parents. There is some criticism of the mother, in that her desire has been so strong to change X’s views that she has caused X significant distress and caused him perhaps, at the family consultant’s interviews, to have a detrimental view of the mother, where the mother has been saying to X such things as a child should live with its mother and doing her best to try and change the child’s views.
The mother may have done it out of circumstances of desperation where she just wants this little boy to live with her, nevertheless, when weighing up the attitudes to the child and the responsibilities of parenthood, perhaps hopefully, the mother may, in hindsight, consider it was not appropriate she did that. Nevertheless, she did. Otherwise, with respect to the mother and the father, the parties have largely demonstrated an equally appropriate responsibility towards the issues of parenthood.
The Court cannot make any findings that there has been any family violence involving a child or a member of the child’s family and while the Court reads about the maternal step-grandmother and there being AVO between the mother and her, the Court cannot make any findings about there being a family violence order that applies or has applied to a child or a member of the child’s family, or draw any relevant inferences from it, with respect to those matters set out at subparagraph (k)(i) through to (v).
I must consider making orders that are preferable that would be least likely to lead to the institution of further proceedings and in that regard, I do consider the parties’ communication, if the Court were to make an order for equal shared parental responsibility. It is the view of the Court the parties’ relationship is so fractured with respect to their communication that there would be likely, the institution of further proceedings because the parties would just be unable to agree upon issues relating to parental responsibility. The Court does not consider any other matters are relevant. When I turn to those matters set out at section 61BA, there is a presumption that provides for equal shared parental responsibility, unless rebutted by reason of family violence or abuse of a child or another child who, at the time, was a member of the parent’s family.
The Court does not find that there is family violence or abuse of a child or another child who was, at the time, a member of the child’s family, such that the presumption in favour of equal shared parental responsibility should be rebutted. The presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child. It is the view of the Court that there is evidence that establishes that. It is not in the best interests of the child that the parties have equal shared parental responsibility, noting the serious deficits in the parties’ communication.
Borrowing the wording set out at section 65DAA, subparagraph (5)(b), the parent’s current and future capacity, to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, whilst not on point with respect to reasonable practicality, on point with respect to their communication. The parties cannot communicate sufficiently to overcome issues that might arise in them exercising equal shared parental responsibility and for that reason, the Court finds it is not in X’s best interest of X that the parties have equal shared parental responsibility and the court rebuts the presumption in favour of equal shared parental responsibility and finds that the parental responsibility should vest in the father.
If the Court considered section 65DAA, whilst it would be in the best interests of this child that there be equal time and if not equal time, substantial and significant time, when one considers subparagraph (5)(a) of section 65DAA, the parties live too far apart to allow for the child to spend equal time or time with the mother on days that fall on weekends and holidays and days that do not fall on weekends and holidays and the time the child spends with the mother would allow the mother to be involved in the child’s daily routine.
Mid-week time, given the distance between the parties, is simply impracticable. In that respect, the Court finds that neither equal time, nor substantial and significant time, is reasonably practicable, given the distance the parties live apart from one another. It is a result of the matters the Court has considered today, having regard to those matters set out at section 60CC(2)(a) and (b), (3)(a) to (m), having considered the evidence of the parties and having considered those documents tendered during the course of the proceedings, having heard the parties’ cross-examination and their submissions, having read and considered the family report, having heard the cross-examination of the family consultant that the Court makes the following orders.
ORDERS DELIVERED
Costs
Costs are sought by the independent children’s lawyer against the mother and the father. Costs sought against the mother will be determined now. They are sought in the sum of $4854. The independent children’s lawyer was ordered in these proceedings for the representation of the child, X born (omitted) 2004.
Section 117, subparagraph (1) provides that:
Subject to various subsections, including subsection (2), parties to the proceedings shall bear his or her own costs.
Subparagraph (2) provides that:
If in proceedings, the Court is of the opinion there are circumstances that justify it in doing so and the Court considers it just, then the Court can make an order for costs, having regard to those matters set out at subsection (2)(a).
Subsection 2(a) provides for various considerations found at subsection (2)(aa) through to (g). Subparagraph (3) provides that:
In order to avoid doubt, the Court can make an order for costs of the independent children’s lawyer against a party, including for security costs, whether by way of interlocutory order or otherwise.
Subparagraph (4) provides that:
However, in proceedings in which an independent children’s lawyer for a child has been appointed (a) if a party to the proceedings has received legal aid in respect to the proceedings, or (b) the Court considers that a party to the proceedings would suffer financial hardship if a party had to bear a proportion of the costs of the independent children’s lawyer, the Court must not make an order under subsection (2) against a party in relation to the costs of the independent children’s lawyers.
Subparagraph (5) provides that:
In considering what order, if any, order should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the Court must disregard the fact the independent children’s lawyer is funded under a legal aid scheme or a service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
In other words, the Court must disregard issues relating to the public purse. The mother tells the Court she is no longer working. She has the care of a small child.
The Court accepts that the mother – and the Court considers – and it is a low bar. The Court only need consider that a party would suffer financial hardship and in this respect or regard, the Court considers the mother would suffer financial hardship if she had to bear a proportion of the costs of the independent children’s lawyer or all of them, and in that regard, having regards to section 117, subparagraph (4), the Court must not make an order for costs against the mother for the independent children’s lawyer and the application for costs by the independent children’s lawyer against the mother is therefore, dismissed.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Myers
Associate:
Date: 2 September 2015
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Remedies
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