Solder and McCabe

Case •

[2007] FamCA 1672

•

20 March 2007

FAMILY COURT OF AUSTRALIA

SOLDER & MCCABE [2007] FamCA 1672
FAMILY LAW – CHILDREN – BEST INTERESTS – Mother failed to appear at trial – Consent orders between father and independent children’s lawyer – Observations as to the consent orders
Family Law Act 1975 (Cth) s 60CC
Goode & Goode (2006) FLC 93-286
APPLICANT: MR SOLDER
RESPONDENT: MS MCCABE
FILE NUMBER: BRC 2053 of 2007
DATE DELIVERED: 20 March 2007
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 19 and 20 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fisher
SOLICITOR FOR THE APPLICANT: Mr Potts, Neumann & Turnour Lawyers
THE RESPONDENT: No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Cameron
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Terrance, Legal Aid Queensland

ORDERS

IT IS ORDERED BY CONSENT BETWEEN THE FATHER AND THE INDEPENDENT CHILDREN’S LAWYER

  1. In the terms of the minute of orders set out in Annexure A.

AND IT IS FURTHER ORDERED

  1. The original minute of orders, signed by the parties, be placed and remain on  the Court file.

  2. Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure B and these particulars are included in these orders.

  3. The independent children’s lawyer is discharged.

AND IT IS FURTHER ORDERED

  1. The father file any application for costs by 4pm on Wednesday 26 March 2008 and as soon as possible serve on the mother by express post addressed to her at …:

    (a)a copy of that application;

    (b)a list of the material to be relied upon in support of it; and

    (c)a copy of any material to be relied upon not previously served on her.

  1. The mother file and serve any response to that application and any material to be relied upon by 4pm on Tuesday 15 April 2007.

  2. The father’s costs application be listed for hearing and determination at 10am on Monday 21 April 2008.

NOTATION:

The mother should in her material in response depose to her financial circumstances and such other matters referred to in s 117(2A) of the Family Law Act 1975 (Cth) as she considers relevant.

ANNEXURE A

  1. That the all previous Orders of the Federal Magistrates Court and Family Court of Australia at Brisbane be discharged.

  2. That the child, born …April 1998 (hereinafter referred to as ‘[the child]) live with the Father.

  3. That unless otherwise provided the Father and Mother have equal shared parental responsibility for the major long-term issues concerning the care, welfare and development of the child.

  4. That the Father shall have sole parental responsibility for:

    4.1Schooling of the child including decisions about the type of schooling, and the schools at which the child shall attend;

    4.2Organised sporting activities; and

    4.3Surgery, hospitalisation and medical treatment for the gastro-intestinal/bowel condition currently under the care of Dr M, Dr B and Dr C;

    and shall keep the Mother informed of the same.

  5. That the parties each have sole parental responsibility for the day to day care, welfare and development of the child when the child is in his or her care.

  6. That the child spend time with the Mother at all reasonable times as agreed between the parties, but failing agreement as follows:

    6.1Each alternate weekend from after school Friday until before school Monday morning or before school Tuesday morning if Monday is a public holiday or pupil free day for the child.

    6.2In the year 2009 and each alternate year thereafter, during Easter and the gazetted Easter School Holiday period with the Mother to collect the child from school at the commencement of the holiday period and return the child to school at the conclusion of the holiday period.

    6.3In the year 2008 and each alternate year thereafter, for half of the gazetted June/July School Holiday period with the Mother to collect the child from the Father at the midway point of the school holiday period and return the child to school at the commencement of the following term, and in the year 2009 and each alternate year thereafter, for half of the gazetted June/July School Holiday period with the Mother to collect the child from school at the commencement of the holiday period and return the child to the Father at the midway point of the school holiday period.

    6.4In the year 2008 and each alternate year thereafter, for half of the gazetted September School Holiday period with the Mother to collect the child from the Father at the midway point of the school holiday period and return the child to school at the commencement of the following term, and in the year 2009 and each alternate year thereafter, for half of the gazetted September School Holiday period with the Mother to collect the child from school at the commencement of the holiday period and return the child to the Father at the midway point of the school holiday period.

    6.5In the year 2008 and each alternate year thereafter, during the 1st, 4th and 5th weeks of the gazetted Christmas School Holiday period, and in the year 2009 and each alternate year thereafter, during the 2nd, 3rd and 6th weeks of the gazetted Christmas School Holiday period.

    6.6Reasonable telephone communication at reasonable times by use of the Father’s landline or a mobile telephone provided to the child, and in particular between 7pm and 7.30pm on the child’s birthday in the event that the child’s birthday falls on a day that the child is with the Father;

    6.7Mother’s Day shall be enjoyed with the Mother and should Mother’s Day fall on a weekend that the child spends with the Father, the Mother collect the child from school on Friday afternoon and return the child to school on Monday morning.

    6.8In the year 2009 and each alternate year thereafter from 8.30 a.m. on the child’s birthday (9 April) to 8.30 a.m. the following day provided the child attends school if his birthday falls on a weekday.

    6.9On the Mother’s birthday from 8.30 a.m. to 8.30 a.m. the following day provided the child attends school if the Mother’s birthday falls on a weekday.

    6.10On each of the child’s maternal siblings’ birthdays from 8.30 a.m. to 8.30 a.m. the following day provided the child attends school if the child’s maternal sibling’s birthdays fall on a weekday.

  7. That the child spend time and communicate with the Father as follows:

    7.1That in the event that the child’s birthday falls on a day the child is with the Mother, the Father shall be permitted to telephone the child between 7pm and 7.30pm;

    7.2Father’s Day shall be enjoyed with the Father and should Father’s Day fall on a weekend that the child spends with the Mother, the Father collect the child from school on Friday afternoon and return the child to school on Monday morning;

    7.3In the year 2008 and each alternate year thereafter, during Easter and the gazetted Easter School Holiday period with the Father to collect the child from school at the commencement of the holiday period and return the child to school at the conclusion of the holiday period.

    7.4In the year 2008 and each alternate year thereafter, for half of the gazetted June/July School Holiday period with the Father to collect the child from school at the commencement of the holiday period and deliver the child to the Mother at the midway point of the school holiday period, and in the year 2009 and each alternate year thereafter, for half of the gazetted June/July School Holiday period with the Father to collect the child from the Mother at the midway point of the school holiday period.

    7.5In the year 2008 and each alternate year thereafter, for half of the gazetted September School Holiday period with the Father to collect the child from school at the commencement of the holiday period and deliver the child to the Mother at the midway point of the school holiday period, and in the year 2009 and each alternate year thereafter, for half of the gazetted September School Holiday period with the Father to collect the child from the Mother at the midway point of the school holiday period and return the child to school at the commencement of the following term.

    7.6In the year 2008 and each alternate year thereafter, during the 2nd, 3rd and 6th weeks of the gazetted Christmas School Holiday period, and in the year 2009 and each alternate year thereafter, during the 1st, 4th and 5th weeks of the gazetted Christmas School Holiday period.

    7.7In the year 2008 and each alternate year thereafter from 8.30 a.m. on the child’s birthday (9 April) to 8.30 a.m. the following day provided the child attends school if his birthday falls on a weekday.

    7.8On the Father’s birthday from 8.30 a.m. to 8.30 a.m. the following day provided the child attends school if the Father’s birthday falls on a weekday.

    7.9On the Father’s wife’s birthday from 8.30 a.m. to 8.30 a.m. the following day provided the child attends school if the Father’s wife’s birthday falls on a weekday.

    7.10On each of the child’s paternal siblings’ birthdays from 8.30 a.m. to 8.30 a.m. the following day provided the child attends school if the child’s paternal sibling’s birthdays fall on a weekday.

  8. That the child’s weekend time with the mother be suspended during each school holiday period, and resume after the cessation of each school holiday period such that alternate weekends with the Mother shall commence on the first weekend of each school term.

  9. That the parent with whom the child is spending time for the first half of the Christmas school holidays have the child for Christmas Day and provide a contact telephone number on which the other parent can telephone the child on Christmas Day.

  10. That changeovers for all non-weekend periods occur at an agreed mutually convenient location, and failing agreement at the McDonalds Restaurant, …, and further, for the purposes of changeover the parties shall not come into contact with each other or speak with each other.

  11. That the Mother be restrained and an injunction issue hereby restraining her from removing the child from school early.

  12. That both the Mother and the Father be restrained from administering or causing or permitting anyone to apply physical discipline to the child during the time the child is in their care.

  13. That the child not be brought into contact with Mr P McCabe save and except for on the child’s maternal siblings’ birthdays as specified in paragraph 6.10 with such contact to be supervised at all times by the Mother.

  14. That both the Mother and the Father be restrained from criticising or denigrating the other party or the other party’s partner in the presence of or hearing of the child, or causing anyone else to do so and will immediately remove the children from the presence of the person doing so.

  15. That both the Mother and the Father ensure that when transporting the child in a motor vehicle the child is properly restrained.

  16. That both the Mother and the Father ensure they do not smoke in the presence of the child or in a car or house in which the child is present or permit anyone else to smoke in the presence of the child while he is in her or his care.

  17. That neither the Mother nor the Father discuss with, or in the presence of, or hearing of, the child, any matter which is the subject of, or relates to these proceedings between the parties including allegations raised in proceedings and will remove the child immediately from the presence of persons who are doing so, except where the same occurs at the specific direction of either an authorised officer of a relevant State authority or a counsellor upon whom the child attends pursuant to these Orders.

  18. In accordance with the above clauses, the parties agree to utilise a “Communication Book” which the parties shall exchange at changeover with such book to include details of:

    18.1Start and finishing time and locations and any special requirements of any extra-curricular activity that the child scheduled to attend during the time the child spends with either parent;

    18.2Any special medication the child requires;

    18.3Any special homework, assignment or school work the child is required to carry out;

    18.4Any other unscheduled or periodic activities or events of which the other parent should be aware; and

    18.5A list of preferred medical practitioners recommended by the child’s medical specialists.

    And each parent shall ensure that the Communication Book is not made available to or inadvertently read or accessible by the child.

  19. That the Mother be restrained and an injunction be hereby granted restraining her from using or being party to or compliant in the use of any surname for the child other than the surname “[Solder]”.

  20. That each party is authorised to liaise with any educational institutional the child attends, and any doctors, health professionals and therapists involved with the child, and to obtain any and all relevant information and documentation from them concerning the child.

  21. That should either party consult a medical professional in respect of the child’s health, they notify the other party of that professional’s name, address and contact details, as well as details of when the consultation occurred or is to occur and further, both parties shall follow the directions of the treating professional.

  22. That the Father and Mother shall immediately notify the other of any serious accidents or medical emergencies involving the child.

  23. In the case of any medical emergency or hospital admission concerning the child, the parties must give immediate notice, one to the other, including the names, addresses and contact details of any treating Doctors and any hospital.

  24. That if either of the Father or Mother intend to change his or her address or telephone number, a minimum of twenty-eight days written notice must be provided to the other party of both:

    24.1His or her intention to change address and/or telephone number; and

    24.2His or her new address and telephone number.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2053 of 2007

MR SOLDER

Applicant

And

MS MCCABE

Respondent

REASONS FOR JUDGMENT

ex tempore

  1. These proceedings concern the child born in April 1998, who will be 10 years in a few weeks time.

Procedural history

  1. The matter came to me as a Division 12A listing on 26 July 2007 for a Day 1 hearing.  On that date the mother appeared in person, Mr Fisher of Counsel appeared for the father and Ms Huth, solicitor, appeared as the then independent children’s lawyer.  The Day 2 Division 12A hearing was on 26 July 2007 fixed for 14 September 2007.  On that date the mother did not appear, the appearances otherwise again being Mr Fisher of Counsel for the father and Ms Huth, solicitor, as the then independent children’s lawyer.

  2. I am satisfied that the mother had notice of the listing on 14 September 2007 by her presence in Court on 26 July 2007 when that date was fixed, and also by the Court’s notation on the coversheet of the orders made on that date of her then address … being her residential address last known to the Court by reference to the notice of ceasing to act filed on 22 June 2007 by her former solicitors Carne Reidy Herd.  In this regard the Court’s “system of record” is that orders are taken to have been sent to parties at the addresses appearing for them on the coversheet.  Although there is no statutory presumption in this regard, rebuttable or otherwise, no doubt because the Court has inherent control over its own procedures, there is I think a factual presumption, rebuttable, that the Registry duly has sent orders to parties at the addresses appearing for them on the coversheet.

  3. Paragraphs 21 and 22 of the orders made on 14 September 2007 are as follows:

Mother’s attendance at trial and consequence of failure to attend

  1. The mother must on the dates in paragraph 20 appear by herself or a legal representative.

  1. If the mother does not on those dates appear by herself of a legal representative:

(a)the mother’s response filed on 20 November 2006 will be dismissed; and

(b)the matter otherwise will proceed under Rule 11.02(2)(c) of the Rules to be determined on the undefended basis for final parenting orders concerning the child. (emphasis added)

  1. Paragraph 20 of the orders provided that the trial of the matter continue on 19 and 20 March 2008 as fixed dates. 

  2. Paragraph 8 provided for a compliance mention on 12 March 2008. 

  3. On that date the mother again did not appear, the appearances otherwise being Mr Potts, solicitor, for the father, and Ms Terrance, solicitor, as the new independent children’s lawyer.  I am satisfied that the mother had notice of the listing on 12 March 2008, by reference to the Court’s notation on the coversheet of the orders made on 14 September 2007 of her then address at S which address was the same address as the mother provided to the Court on 23 January 2008 in her notice of address for service filed on that date. Again, I would refer to the Court’s “system of record” discussed above.

  4. The orders I made on 12 March 2008 included that the father have leave to file and serve an amended application for final orders dated 21 February 2008;  the father by his solicitors must serve a copy of the amended application by special service as soon as possible (having regard to the imminence of the trial dates); the independent children’s lawyer between 12 and 19 March 2008 use her best endeavours to speak with the mother to inquire why she had not attended the Court hearings on 14 September 2007 and 12 March 2008 and whether she intended to appear at the trial on 19 and 20 March 2008 and if not why not; and provide a brief affidavit in relation to those matters by 19 March 2008.

  5. I am satisfied that the father caused to be served on the mother by special service a copy of the amended application for final orders in respect of which I would refer to the affidavit of service of Mr S filed by leave today and in particular the acknowledgement of service annexed to that affidavit, noting in passing that the address where service was effected was the same address at S.

  6. The affidavit requested of the independent children’s lawyer was filed by leave also today.  In that affidavit Ms Terrance comprehensively set out two telephone conversations she had with the mother on 12 March 2008 and a voice mail message left for her on 18 March 2008.

  7. The gist of the telephone conversations was that the mother asserted she had no idea of the listings on 14 September 2007 and 12 March 2008, but was aware of the trial listing on 19 and 20 March 2008 and definitely intended to appear on those dates unless she could reach agreement with the father before 19 March 2008.

  8. The information in Ms Terrance's affidavit includes that the mother is six months pregnant, that she has on occasions been confined to bed, that she suffers high blood pressure and has had frequent hospitalisations in relation to the high blood pressure.

  9. Yesterday, at the commencement of the hearing, there was no appearance by the mother and no agreement with the father, which seemed at odds with the information the mother had given to Ms Terrance. 

  10. I was aware that yesterday there was a major traffic accident on the western highway which blocked traffic entering Brisbane from the area of the mother's suburb. Accordingly I stood the matter down until 10 o'clock today to give her the benefit of the doubt, in the belief she would not deliberately fail to attend the Court.

  11. However, today 20 March 2008, the mother again has not attended the Court and I am left to conclude that her non-attendance both yesterday and today has been deliberate.  Certainly there is no evidence that the mother presently is suffering any ill-health to prevent her attendance. 

  1. Rather, Mr Cameron of Counsel, for the independent children’s lawyer, today tendered a letter of yesterday’s date to International Detection Services requesting the service of a letter on the mother from the independent children’s lawyer, the letter providing notice to the mother that the matter had been stood down yesterday until today because of her failure to appear, confirming that her attendance at Court today was compulsory and further giving notice that if she failed to attend Court today the Court would proceed to determine the matter on the undefended basis in relation to parenting orders for the child. See ex 2. In the time available the independent children’s lawyer was not able to provide an affidavit by International Detection Services as to whether the letter of notice to the mother was served yesterday afternoon.

  2. However today Mr Fisher of Counsel, for the father, by leave filed a procedural affidavit by the father which at paragraphs 6 to 14 refers to various text messages between the father and the mother about their settlement discussions. Paragraphs 11 and 12 clearly show an admission by the mother to the father by written text that yesterday she had received the letter from the independent children’s lawyer to which I have just referred.

  3. In all of the circumstances I am satisfied that procedural fairness has been accorded to the mother and that deliberately she has decided not to attend the proceedings yesterday and today.  I will therefore proceed to determine the parenting orders on the undefended basis. 

Consent orders proposed between the father and the independent children’s lawyer

  1. After short oral evidence by Mr H, family consultant, and Manager Child Dispute Services, Family Court of Australia, and discussion during the hearing, the father and the independent children’s lawyer reached agreement for the purpose of proposed consent orders between them largely on the basis of the father’s proposal contained in his amended application but with modifications made during the course of argument.

  2. Although the matter proceeded on the undefended basis in relation to the mother, it is well understood that before making consent orders the Court must be satisfied that they are in the child’s best interests.  I will therefore take into account not only the proposed consent orders between the father and the independent children’s lawyer but also the whole of the evidence and as much as can be gleaned from the material as to the mother’s proposal concerning the child and the reasons stated by her in support of her proposal.

The mother’s competing proposal

  1. In relation to the proposal in the father's amended application (served on the mother on 13 March 2007) the mother, both in a letter dated 17 March 2008 to the father’s solicitors annexure CS1 to the father's affidavit filed by leave today, and by way of information to Ms Terrance set out in her affidavit, communicated in effect that she agrees that the child should live with the father and spend time with her on alternate weekends from after school on Friday until before school on Monday.

  2. She proposed however that instead of half of the school holidays with her, as proposed by the father, there be more of the school holiday periods with her than with the father.

  3. She resisted the father's proposal that he have sole parental responsibility for educational and medical matters on the basis of her proposal that the parties have equal shared parental responsibility for all matters concerning the child.

  4. She made mention also of the child spending time with her new child soon due; telephone communication between the child and herself; that in her view certain restraints sought in the father’s amended application were not necessary; and other matters which I need not further specify which relate to potential practical difficulties for sporting and other matters as opposed to actual objections or contrary proposals to those in the father's amended application.

Analysis, decision and reasons

  1. Leaving aside the matters raised by the mother, each of which I will deal with specifically, I am satisfied that all other matters set out in the proposed consent orders between the father and the independent children’s lawyer are in the child’s best interests.

  2. I will deal now with such of the specific matters raised by the mother as in my view warrant careful consideration.

Parental responsibility

  1. In relation to parental responsibility I stated yesterday that in my view it is an extraordinary thing to exclude a child from the benefit of having parental responsibility for him by both of his parents, particularly as the obligation under the Family Law Act 1975 (Cth) (the Act), when equal shared parental responsibility is ordered, is not that parties must agree in relation to the major long term issues, but merely that they must consult in relation to them, and that a consultation process need not be face to face but can be facilitated through a family relationship centre or a mediator arranged by the parties or their lawyers.

  2. Since expressing that tentative view, however, in relation to the child’s health, I have read in detail the report of Dr M, paediatrician, explaining a severe bowel condition suffered by the child, and I have had regard to the circumstance, established on the evidence, that the mother seems unwilling to recognise that the child suffers the bowel condition and unwilling to administer to the child whilst he is with her a substance called Movicol, two sachets per day.  The most recent evidence of this was given today by Mr H, who said that on 18 February 2008 at interview for the purpose of the recent family report, the mother said to him that in her view the child did not need that medication.  That view, I must say, is in stark contrast with the view of the paediatrician Dr M.

  3. Having regard to the report of Dr M, which demands close reading for an understanding of the severity of the child’s problem, and the oral evidence given by Mr H today, I am satisfied that the child’s best interests would be met by the father having sole parental responsibility for all decisions concerning the child’s bowel condition presently being treated by Dr M and Dr C, paediatrician gastroenterologist, including in relation to surgery, hospitalisation and medical treatment, but that there should be equal shared parental responsibility otherwise for all health and medical issues concerning the child, as contained in the father’s and the independent children’s lawyer’s proposed consent orders.

  4. In relation to the child’s schooling, he has had consistency of primary schooling at the M School where presently in 2008 he has commenced Grade 5.  Despite the extraordinary difficulties which he has, as described in Dr M’s report, he has this year been made class captain.  The mother in her letter 17 March 2008 said that she realises that despite other matters the child is happy at M State School, has settled and has some great friendships and also has become class captain and for that reason she is content for him to remain at that school.

  5. However, the history of the matter has not been as smooth and includes the mother taking the child out of school early, further complicated by the circumstance of the parties living a considerable distance from each other, the mother at S, south west of Brisbane and the father in Brisbane.

  6. Mr H gave strong evidence today that he is very clear in his view that it would benefit the child for his school to have a very clear idea as to which parent from whom it should take its instructions so as to avoid conflicting instructions or messages from the parents, and that in the history of this matter that would be easier for the school and easier for the child.  I accept that view, particularly having regard to the history of the matter and the difficulties that have been caused by past conflicts between the parties as to matters relevant to the child's education.

  7. Having regard to Mr H’s evidence and the history of the matter I am satisfied that the child’s best interests would be met by the father having sole parental responsibility for all matters concerning his schooling, as contained in the father’s and the independent children’s lawyer’s consent orders.

  8. In relation to the child’s organised sporting activities, Mr H in the family report expressed the view that the father should have responsibility for decisions concerning the child’s organised sporting activities.  In oral evidence today he referred to the history of the father wanting the child to play rugby union and the mother wanting him to play soccer.  He said that it would be impossible in practical terms for the child to engage in both, given the types of commitments that these sports require.  He referred to the circumstance that the mother also wants the child to engage in horse riding, which would require further commitment from the child, and that in his view for the child there would be too many activities which would require and cause divided loyalties in the child to his parents and to the sporting activities.

  9. Mr H thus confirmed the view expressed in his report that in the child's best interests the father should have sole parental responsibility for the child's sporting activities.  I accept that opinion and in the circumstances I am satisfied that the child’s best interests would be met by the father having sole parental responsibility for all matters concerning his organised sporting activities as contained in the father’s and the independent children’s lawyer’s proposed consent orders.

  10. I note that in the father's amended application specific notice was not given that the father would seek sole parental responsibility in relation to the child's organised sporting activities.  However, the last paragraph of that application seeks from the Court such further or other order as the Court thinks fit.  I am satisfied thus that procedural fairness has been accorded to the mother, particularly as her letter 17 March 2008, on the second page, shows awareness of difficulties in relation to the child’s sporting arrangements, this being plainly a matter in issue.  The other matters in relation to education and medical matters were the subject of express notice in the father's amended application to which the mother responded by her letter dated 17 March 2008.

Equal time/substantial and significant time

  1. The Act provides that if I make, or am to make, an order for equal shared parental responsibility, which is the case, apart from the specific matters excepted, I must consider whether the child spending equal time with each of his parents would be in his best interests, and reasonably practicable, and if such an order is not to be made then I must consider whether the child spending substantial and significant time with each of his parents would be in his best interests, and reasonably practicable.

  2. In determining the matter of the child’s best interests I am bound consider the matters in s 60CC of the Act.

  3. However, in light of the extent of the parties’ agreement, in particular the mother’s agreement that the child should live with the father and spend time with the mother on alternate weekends, it is not necessary for me to deal in an exhaustive way with each of the s 60CC matters in order to determine whether the child’s best interests would be met by an equal time order or a substantial and significant time order, and in the circumstances I will simply record that having considered all of the matters in s 60CC(2), (3) and (4) I am satisfied that an equal time order would not be in the child’s best interests and that a substantial and significant time order would not be in the childd’s best interests. In any event neither is reasonably practicable. The homes of the father and the mother are a considerable distance apart. Plainly, it would not be practicable for the child to live with the mother on the equal time or the substantial and significant time basis because of the distance between her residence and his school.

Holiday time

  1. In relation to the holiday periods proposed by the mother, Mr H put today in his oral evidence that even in relation to the Christmas school holidays in his view the mother's attitude to the child's need for his medication and her resistance to administering it has the effect that the child should not be with the mother for more than periods of two weeks. 

  2. Mr H said also that the mother has a tendency to involve the child in issues concerning his parenting arrangements and that holidays with the mother greater than two weeks would expose the child to emotional pressure. Mr H spoke of his view of the mother's lack of insight into her tendency to do this explaining that she does not understand that she does it nor the need not to do it.

  3. I appreciate that the June/July and the September/October gazetted school holiday periods are two weeks each.  However I am satisfied that the orders proposed by consent by the father and the independent children’s lawyer are in the chld’s best interests so that he may spend part of each holiday period with each parent  The holiday orders largely reflect those sought in the father’s amended application, with the exception that instead of midway changeover during the Christmas school holiday periods, which would have resulted in three consecutive weeks with each parent, there be the first, fourth and fifth weeks with one parent and the second, third and sixth weeks with the other parent.   

Restraints

  1. The father’s amended application included certain restraints against the mother, which she resisted as unnecessary.

  2. In relation to P McCabe, the mother’s former partner, her letter 17 March 2008 included that restraint was not necessary as she was no longer in a relationship with him and that he does not come into contact with the child.

  3. Counsel submitted that although the mother may not be in a relationship any longer with Mr McCabe they have two children and it may be likely that the child thus would come into contact with Mr McCabe, with whom the child has had experiences of violence involving Mr McCabe hitting him with a leather strap on occasions of contact with the mother and Mr McCabe’s children.  I accept that submission and in the circumstances consider that the father's proposed order that the child not be brought into contact with Mr McCabe save and except for the child's maternal siblings' birthdays, with such contact to be supervised at all times by the mother, is in his best interests.

Telephone communication

  1. I have considered the mother’s proposal as to telephone communication, in particular that the child be required to have his mobile telephone at all times, especially between 7.30am and 8.30am and 3.30pm and 7.30pm each day.  However such an order would require the father to monitor the child to ensure not only that his mobile phone is with him but also switched on. In all of the circumstances in my view the child’s best interests would be met by an order that there be reasonable telephone communication at reasonable times whether by mobile or land line as included in the consent orders proposed by the father and the independent children’s lawyer.

Other matters

  1. The matter of the child spending time with his siblings including the child currently due is provided for in the consent orders proposed by the father and the independent children’s lawyer.

  2. In relation to all other matters in the father's amended application the mother offered no resistance. 

  3. I am satisfied that the proposed orders are in the child’s best interests and by consent between the father and the independent children’s lawyer I will make those orders. 

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate: 

Date: 

Key Legal Topics

Areas of Law

  • Family Law

  • Equity & Trusts

Legal Concepts

  • Injunction

  • Costs

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