Tansley and Cooper

[2016] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANSLEY & COOPER [2016] FCCA 48

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – substantial and significant time – child’s schooling – one child aged 4 years 7 months – child due to commence school in 2016.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Applicant: MR TANSLEY

Respondent: MS COOPER

File Number: SYC 5786 of 2012

Judgment of: Judge Scarlett

Hearing date: 13 July 2015

Date of Last Submission: 13 July 2015

Delivered at: Sydney

Delivered on: 15 January 2016

REPRESENTATION

Applicant: In person

Respondent: In person

ORDERS

1. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2011 in respect of all long term matters involving the care, welfare and development of the child.

2. When consulting each other in respect of long term matters involving the care, welfare or development of the child X the parties are to communicate their proposals in writing, which may include electronic means such as email or sms.

3. The Mother and father are to have sole parental responsibility for all decisions concerning the day to day care, welfare and development of the child X when the child is in their respective care.

4. The child X is to spend time with the Father during the school term as follows:

   (a)Until the child attains the age of five (5) years:

   (i)In the first week of each fortnight, from immediately after school on Friday afternoon until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and

   (ii)In the second week of each fortnight, from immediately after school on Thursday afternoon until the commencement of school on Friday morning; and

   (b)Upon the child attaining the age of five (5) years until the child attains the age of twelve (12) years:

   (i)In the first week of each fortnight, from immediately after school on Friday afternoon until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday morning; and

   (ii)In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning; and

   (c)Upon the child attaining the age of twelve (12) years:

   (i)In the first week of each fortnight from immediately after school on the Friday afternoon until the commencement of school on the Tuesday morning; and

   (ii)In the second week of each fortnight, from immediately after school on Wednesday afternoon until the commencement of school on Friday morning.

5. The child X is to spend time with the Father for the first half of the Autumn, Winter and Spring school holiday periods in 2016 and all even numbered years thereafter and for the second half of the said school holiday periods in 2017 and all odd numbered years thereafter.

6. For the purposes of the immediately preceding Order:

   (a)the school holiday period will be deemed to commence at 9:00am on the Saturday immediately after the last day of the school term and conclude at 5:00pm on the day immediately before the day that children are required to attend school for the commencement of the next school term; and

   (b)the midpoint of the school holiday period will be 12:00 noon on the middle Saturday of the school holiday period.

7. The child X is to spend time with the Father during the Christmas/January school holiday period in each year as follows:

   (a)Until such time as the child attains the age of twelve (12) years, for alternate weeks of the school holiday period commencing with the first week in 2016 and all even numbered years thereafter and the second week in 2017 and all odd numbered years thereafter; and

   (b)Upon the child attaining the age of twelve (12) years, from 9:00am on 2 January until 5:00pm on 23 January in each year.

8. Notwithstanding the provisions of the immediately preceding Orders, the child X is to spend time with the Father:

   (a)On the child’s birthday in each year from immediately after school until 7:30pm if the day falls on a school day or from 10:00 am to 2:00pm if the day falls on a weekend;

   (b)On the Father’s birthday in each year from immediately after school until 7:30pm if the day falls on a school day or from 10:00am to 2:00pm if the day falls on a weekend;

   (c)from 5:00pm on the Saturday immediately before Father’s Day until the commencement of school on the following Monday morning;

   (d)from 10:00 am on Christmas Day until 10:00 am on Boxing Day in 2016 and all even numbered years thereafter and from 10:00 am on Christmas Eve until 10:00 am on Christmas Day in 2017 and all odd numbered years thereafter;

   (e)from 10:00am on Easter Sunday until 10:00 am on the following Tuesday in 2016 and all even numbered years thereafter and from 10:00am on good Friday until 10:00am on Easter Sunday in 2017 and all odd numbered years thereafter; and

   (f)at such other times as the parties may agree.

9. Notwithstanding the provisions of any preceding Order, the Father’s time with the child X is suspended:

   (a)On the child’s birthday in each year if the child is not otherwise in the care of the Mother from 10:00am to 2:00pm if the day falls on a weekend;

   (b)On the Mother’s birthday in each year if the child is not otherwise in the care of the Mother from immediately after school until 7:30pm if the day falls on a school day or from 10:00am to 2:00pm if the day falls on a weekend; and

   (c)From 5:00pm on the Saturday immediately before Mother’s Day if the child is not otherwise in the care of the Mother until the commencement of school on the following Monday morning

10. Changeover where the child goes from the care of one parent to the care of the other parent in accordance with these Orders is to take place at the child’s school if on a school day or otherwise at the McDonalds Family Restaurant in (omitted) at (omitted) as the case may be.

11. The parents must notify each other as soon as possible in respect of any medical emergency, serious injury or illness involving the child when she is in their care.

12. The parents must keep each other informed of their current residential address, landline and mobile telephone numbers  and advise each other in writing of any change within 48 hours of such change occurring.

13. If one parent wishes to travel with the child outside the State of New South Wales to another State or mainland Territory of Australia the travelling parent must provide to the other parent no later than fourteen (14) days prior to the date of intended travel an itinerary and contact details for where the child will be staying.

14. If either parent wishes to travel with the child outside of the Commonwealth of Australia, then such parent (hereinafter referred to as “the Travelling Parent”) must provide to the other parent (hereinafter referred to as “the Remaining Parent”) not less than forty-two (42) days prior to the intended date of departure:

    (a)A written notice to the Remaining Parent which shall state that they intend to travel outside of the Commonwealth of Australia with the child; and

    (b)A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the Travelling Parent and the child and the overseas contact telephone and facsimile numbers if applicable at that intended address or addresses.

15. The Remaining Parent must inform the Travelling Parent in writing within fourteen (14) days of receipt of the written notice and itinerary referred to in the immediately preceding Order whether or not he or she consents to the Travelling Parent’s proposal to travel out of the Commonwealth of Australia with the child.

16. The Travelling Parent shall deliver to the Remaining Parent not less than twenty-one (21) days prior to the intended date of departure a copy of the airline/ship tickets (or written confirmation from the airline, travel agent or shipping line) for both the Travelling Parent and the child for their departure from and return to the Commonwealth of Australia.

17. Each parent must do all things and sign all documents necessary to apply for an Australian passport for the child or renew an existing Australian passport, as the case may be, no more than fourteen (14) days after the other parent requests him or her to do such things or sign such necessary documents.

18. The parties are restrained by injunction from applying for any passport for the child other than an Australian passport.

19. In the event that either parent intends to apply for the renewal of or a new passport for the child from the Australian Passport Office then such parent must advise the other parent in writing of that intention no later than fourteen (14) days prior to making that application.

20. The child’s passport is to be held by the Mother who must provide the passport to the Father no later than fourteen (14) days prior to the Father’s intended date of travel with the child.

21. The Father must return the child’s passport to the Mother no later than seven (7) days after returning to Australia with the child.

22. Whilst the child is travelling outside Australia the Travelling Parent must do all things necessary to ensure that the child speaks to the Remaining Parent via Skype or Face Time or similar form of communication on at least two (2) occasions each week.

23. The parents must do all things and sign all such documents as shall be necessary to enrol the child X at (omitted) Public School at (omitted) to commence school at the beginning of the first school term in 2016 PROVIDED THAT if the child is not able to secure a place at (omitted) Public School then the parents must do all such things and sign all such documents as shall be necessary to enrol the child at (omitted) Public School or, in the alternative, (omitted) Public School.

24. Each parent will be entitled to attend all school and extra-curricular events involving the child, including but not limited to:

    (a)Assemblies;

    (b)Concerts;

    (c)Sporting events; and

    (d)Other activities that allow for parental attendance.

25. Each parent will be entitled to receive at their own expenses copies of all school newsletters, bulletins, information about school photographs and other items normally provided to parents of children attending that school.

26. The parties are restrained from relocating the residence of the child X from the Sydney Metropolitan Area.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5786 of 2012

MR TANSLEY

Applicant

And

MS COOPER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Father of a girl named X, who is four years old. X was born on (omitted) 2011. She lives with her mother and spends time with her father. The parties disagree about:

   a)The amount of time that X should spend with her father;

   b)The way in which that time should be structured; and

   c)What school the child should attend next year.

Orders Sought

1. The Father relies on his Amended Application which was filed on 3^rd October 2014. In that Application, he seeks 25 separate orders in accordance with an earlier proposed Parenting Plan which was not put into operation.

2. In summary, the Orders sought in the Father’s Application are that:

   a)X will live with the Mother;

   b)The parties are to have joint parental responsibility for X;

   c)The parties will have sole parental responsibility for making decisions concerning the child’s day to day care, welfare and development;

   d)X should spend time with the Father in a two week cycle as follows:

   i)In week 1 Wednesday afternoon after day care, or 7:30am Wednesday morning, until day care/school the following Thursday morning, or 7:30am Thursday morning, and Sunday morning from 9:00am until day care/school the following Monday, or 7:30am Monday morning.

   ii)In week 2 Wednesday afternoon after day care, or 7:30am Wednesday morning, until day care Friday morning or 7:30am Friday morning and Sunday morning from 9:00am until day care the following morning or 7:30am Monday morning, in the event day care is not available.

   e)Transfers (i.e. changeovers where the child goes from the care of one parent to the care or the other) will occur at day care/school/after school care unless the child is not attending where they will occur at an agreed location equidistant from the parental homes, currently (omitted);

   f)From the school holidays immediately after the child’s 5^th birthday (i.e. (omitted) 2016), the child will spend 6 days per fortnight with the Father, to be negotiated at least 3 months prior to the date;

   g)From the school holidays immediately after the child’s 7^th birthday (i.e. (omitted) 2018), the child will spend 7 days per fortnight with the Father;

   h)Each Father’s Day, from 9:00am until the following morning at day care/school/7:30am (and Mother’s Day with the Mother);

   i)On the Father’s birthday each year (and with the Mother on her birthday);

   j)On the child’s birthday on an alternating basis;

   k)At Christmas in an alternating arrangement, 12:00pm Christmas Eve to 12:00pm Christmas Day one year and 12:00pm Christmas Day to 12:00pm Boxing Day the next;

   l)At Easter in an alternating arrangement, 9:00am Good Friday to 9:00am Easter Sunday one year and 9:00am Easter Sunday until 7:30am on the Tuesday after Easter;

   m)If the child is sick and unable to attend day care or school or is sent home from day care or school the parent in whose care the child would normally be is to be responsible for the child’s care;

   n)Until the end of the school holidays immediately after the child’s 5^th birthday, the child would spend time with each parent for one week on up to three occasions each year, with each parent giving four weeks’ notice by email;

   o)From the school holidays immediately after the child’s 5^th birthday, the child would spend time with each parent for a maximum period of two weeks on up to four occasions per year, “to a maximum of four (4) weeks, by way of holiday arrangements” with each parent giving four weeks’ notice by email;

   p)From the child’s 5^th birthday, equal time with each parent during the school holidays;

   q)The parties to be restrained from removing the child from the Commonwealth of Australia and the State of New South Wales without the written consent of both parents, with a scale of time limits to be placed on the length of time for which the child may be out of Australia;

   r)Both parties to be restrained from smoking or drinking when the child is in their care;

   s)The parties to be restrained from relocating the child out of the Sydney Metropolitan Area without the written consent of both parents; and

   t)The child to attend a New South Wales Government Public School within reasonable commuting distance from both parents’ homes unless both parents agree in writing that the child is to attend “a non-government or secular school”.

3. The Mother filed a Response, seeking somewhat different orders. She seeks 41 separate orders as set out in a Minute of Proposed Orders attached to her Case Outline Document. In summary, the Mother seeks orders that:

   a)the child should live with her;

   b)the parents should have equal shared parental responsibility for the child;

   c)the parents should have sole parental responsibility for making decisions about day to day matters concerning the child’s care, welfare and development;

   d)the parties should consult each other in writing, including email and sms;

   e)the parties should notify each other as soon as possible about any medical emergency, serious injury or illness involving the child;

   f)the parties should keep each other informed about their residential addresses and telephone numbers;

   g)the child should spend time with the Father during the school term in a convoluted and graduated amount of time, according to the time the child reaches various birthdays;

   h)the child should spend time with her father at various times during the school holidays;

   i)the child should spend certain special days such as birthdays and Father’s Day with her father;

   j)changeovers to be at day care or school or at the McDonald’s Family Restaurant, as the case may be;

   k)similar arrangements for the eventuality of the child being sick as those proposed by the Father;

   l)restraint on the child being removed from the Commonwealth of Australia;

   m)a graduated scale of time limits to be placed on the amount of time for which the child may be out of Australia;

   n)orders about the child’s passport and the provision of travel itineraries;

   o)the child to attend a New South Wales Government Public School;

   p)arrangements for the parties to receive the necessary notifications from the child’s school and attend various school activities;

   q)orders relating to the payment of various expenses relating to the child, including educational expenses, private health insurance and medical expenses;

   r)the parties to be restrained from relocating the child from the Sydney Metropolitan Area.     

Background

1. The Father was born on (omitted) 1967.

2. The Mother was born on (omitted) 1968.

3. The Mother was previously married and has three children by that marriage, two of whom are now adults. The Mother’s third child from that relationship is Y, who was born on (omitted) 1998.

4. The parties commenced their relationship in late 2004[1] or September 2005[2]. They commenced cohabitation in September 2005[3] or 2009.[4]

   [1] Mother’s account

   [2] Father’s account

   [3] Mother’s account

   [4] Father’s account

5. It is the Mother’s evidence that the parties separated in April 2006 and resumed their relationship, without cohabiting, in June 2006. It is also the Mother’s evidence that the parties recommenced cohabitation in April 2010.

6. There is one child of the relationship, X, who was born on (omitted) 2011.

7. The parties separated in September 2012 and have remained living separately and apart since then. The child X has lived with the Mother and spent time with the Father since then.

Procedural History

1. The Mother commenced proceedings by filing an application for parenting orders in the Family Court on 27^th September 2012.

2. The Father filed a Response on 29^th October that year.

3. The Mother filed an Amended Application on 17^th January 2013.

4. The parties attended a Family Consultant for an Issues Assessment on 23^rd January 2013. The Family Consultant saw the child X on 31^st January 2013. On 5^th February 2013 the Family Consultant, Ms S, prepared a Children and Parents Issues Assessment.

5. The parties attended a Child Dispute Conference with Family Consultant Ms S on 28^th February 2013. A Family Consultant Memorandum to Court was prepared that same day.

6. On 5^th April 2013 a Registrar transferred the matter to the Federal Magistrates Court.[5]

   [5] Now the Federal Circuit Court

7. On 5^th July 2013 her Honour Judge Sexton made financial Orders by consent, which included not only property orders but orders in the way of a child support agreement (but not a binding child support agreement).

1. On 1^st August 2013 the Father discontinued his Application for parenting orders by filing a Notice of Discontinuance.

2. On 18^th August 2014 the Father filed a fresh Application for parenting orders in the Family Court.

3. The Mother filed a Response and a Response to an Application in a Case on 21^st October 2014.

4. The parties attended Family Consultant Ms S on 29^th October 2014. The Family Consultant prepared a Child and Family Meeting Memorandum on 21^st November 2014.

5. On 24^th November 2014 a Registrar transferred the proceedings to the Federal Circuit Court.

6. The Application was returnable on 2^nd February 2015, on which date it was listed for final hearing on 3^rd July 2015.

7. The Application was not reached on 3^rd July and was adjourned to 13^th July for hearing with priority.

8. The Application was heard on 13^th July 2015. The Father and Mother both gave oral evidence, as did the Family Consultant.

Evidence

1. In his affidavit of 27^th January 2015, the Father deposed that since January 2013 the child X has been living in “a mutually agreed shared custody arrangement with the mother as Primary Carer having 9 days per fortnight and the father having 5 days per fortnight”.[6] Both parents are in full-time employment.

   [6] Affidavit of X 27.1.2015 at paragraph [6]

2. The Father expressed concern about changes by the Mother to the parenting arrangements, saying that the changes had had a bad effect on the child:

   19.X was settled and content in her arrangement of as she called “daddy days” as “Sunday and Wednesday”. The introduction of a reduction in weekend full day access has caused significant disruption to this safe known pattern. X’s timetable for “daddy days” and “mommy days” have been reinforced via a calendar printed on the fridge for X to associate with from a young age, she recognises and relates to the days.

   20.X had an established pattern of every Sunday as a “daddy day”, as a swimming day, and a quality of time associated with a pattern and stability. The reduction to one full quality day with her father every fortnight has caused her confusion as to the pattern, lack of quality time with her father and a slow progression in her swimming capability.”[7]

   [7] Affidavit of X 27.1.2015 at [19]-[20]

3. The Father annexed to his affidavit copies of previous draft consent orders that were not made.

4. The Father gave oral evidence and was cross-examined by the Mother. He said that the child managed the movement between her parents quite well although the parties do not greet each other at changeover.

5. It was put to the Father that the orders that he sought did not allow the Mother to have a full weekend with or without the child and did not provide for him to spend time with the child on Friday or Saturday nights, except during the school holidays.

6. The Father said that he found communication with the Mother stressful, especially as there were disagreements about the child.

7. In her affidavit of 4^th June 2015 the Mother deposed that she had been X’s primary carer since the child’s birth.

8. The Mother has three children from her first marriage, two sons and a daughter. Her eldest child, a son aged 27 years, lives independently. Her daughter Z, who was born on (omitted) 1991 and is now almost 25 years of age, lives with her. Her younger son Y, born on (omitted) 1998 and is now aged 17 years and 5 months, has been residing with his father in (country omitted) but will shortly return to Australia.

9. The Mother said of Y:

   7.Y and I have a good relationship. By agreement with his father, Y’s present intention is to return to Australia to live with me from January 2016 to complete his HSC and undertake further study independently or by joining the (employer omitted).[8]

   [8] Affidavit of  Ms Cooper 4.6.2015 at paragraph [7]

10. Both the Mother and the Father work on a full time basis, the Mother is the (occupation omitted) of a (employer omitted). Because both parents work full time, the child attends a day care facility at (omitted). Her mother drops her off at or about 7:30am and collects her at about 5:15pm each weekday.

11. It was the Mother’s evidence that the child was exhibiting a reluctance to go to her father’s care on a weekend. The Mother deposed that she had a preference for the parents to have full weekends with the child and believed that this would be better for the child. The Mother deposed:

    45.On the weekend of 8^th – 9^th of March 2014 X spent the whole weekend in my care as Mr Tansley had work commitments. I observed that she was very settled for the entire weekend and we were able to share a balanced weekend of day to day activities, like household tasks and shopping, as well as spend time on Sunday with her siblings.

    46.On 9^th March 2014, as I had observed X’s developing reluctance to transfer to her father on Sundays and her settled demeanour over the full weekend with me, I sent a text message to Mr Tansley.

    47.In this text message on 9 March 2014 I suggested to Mr Tansley that we consider moving to a full alternate weekend arrangement. Mr Tansley replied by text message that he did not agree with any change in X’s routine.[9]

    [9] Ibid at [45]-[47]

12. Eventually, the Mother decided to implement a change to the parenting arrangements involving a full alternate weekend arrangement. The Father then filed an Application in the Family Court. The parties met with a Family Consultant on 29^th October 2014 and the Father subsequently agreed to an arrangement whereby the child would spend alternate Monday evenings with him, with the result that the child was then in his care for five nights a fortnight.

13. The Mother deposed:

    62.X did not demonstrate any behavioural changes whilst in my care during the period she spent four nights a fortnight with her father, nor afterwards when the five night pattern was re-established.[10]

    [10] Affidavit of Ms Cooper 4.6.2015 at [62]

14. The Mother deposed that, in her view, the arrangement whereby the child spends alternate weekends with her is beneficial to her:

    71.When in my care for full weekends, X likes to help me with cleaning, washing and shopping on Saturdays. We spend time with friends and family or have outings on Sundays. …

    72.X’s older brother and sister work in the (omitted) and (omitted) industries and as such usually work Saturdays, generally only being available for family ‘get-togethers’ on Sundays. Since the 2012 parenting agreement meant that X was not in my care on Sundays, X had only limited opportunities to spend time with her older siblings.[11]

    [11] Ibid at [71]-[72

15. The Mother deposed that she and the Father do not have a positive parenting relationship, describing the Father’s approach as “inflexible”.[12]

    [12] Ibid at [79]

16. The Mother deposed that she planned to move into a property she owns in the suburb of (omitted). She stated that there are a number of good local primary schools in the (omitted) area, including (omitted) Public School and (omitted) Public School. However, in her oral evidence the Mother stated that she currently preferred (omitted) Public School at (omitted). She said that this school is about 3 kilometres away from her home in (omitted) in which she plans to live.

17. The Mother said in her oral evidence that it would be better for X to go to a local school in order that she can maintain peer relationships. In her affidavit, the Mother deposed:

    [132]If X is enrolled in a local school (near) to her home in (omitted) this will allow her to make friends locally and engage in social and sporting activities with friends on weekends and school holidays.[13]

    [13] Affidavit of Ms Cooper 4.6.2015 at [132]

18. Whilst the Father proposed that the child should attend a school nearer to his home in (omitted), the Mother does not agree, stating:

    135. If X is enrolled in an (omitted) Primary School this would have a severely adverse effect on my working and promotional opportunities. In addition, it is likely to effectively limit my financial capacity to provide for X. It would not be practical to drive from (omitted) to the (omitted), which will take at least one and a half hours each way in peak periods, and then drive back out of the city to another school in Sydney’s outer west whilst effectively managing the responsibilities of my professional role and that of a single parent.[14]

    [14] Ibid at [135]

19. Ms S, the Family Consultant who has seen the parties on three separate occasions, gave oral evidence and was cross-examined by both parents.

20. In answer to questions by the father, Ms S said that she had been saying consistently that X had been managing well with the parenting arrangements of either four or five nights a fortnight with the Father. She went on to say that four nights a fortnight was “getting a bit thin” but X is still only a young child.

21. Ms S went on to say that children need solid arrangements within a structure but with some flexibility.  Children benefit from being in a routine, as long as the routines are steady in each household.

22. The Family Consultant replied to the father that he and the Mother had arrived at a point where they are both supporting the other’s relationship with X. However, Court Orders would be of benefit, whether by consent or made by the Judge.

23. Ms S was asked if the move to alternating weekends happened at the time of X’s fifth birthday would be conducive to the child’s wellbeing. She replied that the change could take place either before the child starts school or in the school holidays. It could be done immediately or towards the end of the year. She recommended against making the change when the child starts school in early February.

24. In cross-examination by the Mother, Ms S said that many of her clients thought that it was important to have a weekend of down time and a weekend of child time. The transition point can be the only time the children see their parents together. The research suggests that animosity at changeover can be anxiety producing in a child.

25. The Family Consultant said that she would favour developing the arrangement that would suit X.

Submissions

1. In her submission to the Court, the Mother said that the parties’ co-parenting relationship is dysfunctional. As far as the child’s schooling is concerned, the Mother submitted that the Father had demonstrated limited knowledge. The child would not be unduly harmed by having a different routine.

2. The Mother referred the Court to the decision of the Full Court of the Family Court, Re G: Children’s Schooling[15].

   [15] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

3. The Mother submitted that the orders she was proposing, which provided for the child spending alternate weekends with the Father, offered substantial and significant time between father and child. In addition, the proposed orders would minimise face to face contact between the parents, which would reduce disputes between them at changeover.

4. The Father submitted that the issues between the parties were:

   a)The number of days he spends with the child;

   b)The pattern of those days; and

   c)The geographical location of the proposed schools for the child.

5. It was submitted that the parties’ flexible working arrangement has now changed. The child has spent 5 or 6 days with the Father for most of her life and a reduction in the amount of time that the child spends with him would not be in her best interests.

Applications for parenting orders

1. When a Court is dealing with applications for parenting orders, it must consider various sections of the Family Law Act 1975 (Cth) contained in Part VII of that Act. The particular sections for consideration are:

   a)Section 60B, setting out the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, providing that the Court must regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which shows how the court determines what is in a child’s best interests;

   d)Section 61DA, which contains the presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which applies if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child and requires the Court to consider whether it is both in the best interests of the child and reasonable practicable for the child to spend equal time with each parent or, in the alternative, for the child to spend substantial and significant time with each parent.

2. All of those matters have been considered, so far as they are relevant.

Children’s Schooling

1. The Full Court of the Family Court held in Re G: Children’s Schooling[16] that (in summary):

   a)the best interests of the child are the paramount consideration;[17]

   b)there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the child residing predominantly with one parent has no relevance;[18]

   c)it is a question of weight to be put on or shall be placed on either party’s assessment of the benefit to the child of a change or otherwise in schools;[19]

   d)where prima facie two schools are satisfactory, weight should be placed on a school that is closer;

   e)the objects and principles in section 60B of the Family Law Act 1975 are to be taken into account;[20] and

   f)the best interests of the child involve a consideration of the relevant matters in s.60CC(3) of the Family Law Act 1975.

   [16] supra

   [17] [2000] FamCA 462 at [65]; (2000) 26 Fam LR 143 at 162 [65]

   [18] [2000] FamCA 462; (2000) 26 Fam LR 143 at 162 [65]

   [19] Not relevant in this case

   [20] [2000] FamCA 462 at [66]; (2000) 26 Fam LR 143 at 163 [66]

Conclusions

1. There is no issue between the parties that the child X should continue to live with the Mother. The child has been in the Mother’s primary care since her birth, and the Father does not suggest in any way that it is not in X’s best interests to remain living with her mother.

2. Again, there is no issue between the parties about equal shared parental responsibility. They each seek an order to that effect, just as they sensibly seek an order that they should each have sole parental responsibility to deal with day to day matters concerning the child’s care, welfare and development when she is in the care of each of them.

3. Section 61DA of the Family Law Act 1975 provides, in subsection (1), that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. The presumption does not apply in cases where there has been abuse or family violence (subsection 61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in child’s best interests for his or her parents to have equal shared parental responsibility for the child (subsection 61DA(4)).

5. That is not the case here. I propose to apply the presumption of equal shared parental responsibility as the parents propose.

6. What next must be done is to consider the matters in s. 65DAA of the Act, which applies where the Court makes a parenting order providing that a child’s parents are to have equal shared parental responsibility for the child.

7. Subsection 65DAA(1) provides in that case that the Court must consider:

   a)whether the child spending equal time with each parent would be in the child’s best interests; and

   b)whether equal time with each parent is reasonably practicable.

8. If both of those requirements are met, the Court must then consider making an order for the child to spend equal time with each parent.

9. If the Court does not make such an order, subsection 65DAA(2) then requires the Court to consider:

   a)whether the child spending substantial and significant time with each parent would be in the child’s best interests; and

   b)whether substantial and significant time with each parent is reasonably practicable.

10. If both of those requirements are met, the Court must then consider making an order for the child to spend substantial and significant time with each parent.

11. Neither parent seeks an order for the child to spend equal time with each parent at this stage. The mother proposes that the child should spend seven nights a fortnight, in two blocks, as from the child’s twelfth birthday, which is more than seven years away.  It does not appear that their co-parenting relationship is of a sufficiently positive state to guarantee success for such an arrangement. Another matter is the distance between the Father’s residence, in the inner city suburb of (omitted) and the Mother’s residence, which is to be in the outer suburb of (omitted).

12. One of the matters that the Court must consider in deciding whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each parent, is how far apart the parents live from each other (s.65DAA(5)(a)).

13. Another matter to which the Court must have regard is the impact that an arrangement of that kind would have on the child (s.65DAA(5)(d)).

14. I am not satisfied that an arrangement where the child spends equal time with each parent, which neither parent wants at this stage, is either in X’s best interests or reasonably practicable.

15. I am then required to consider substantial and significant time with each parent. This is a different situation. The Mother has submitted that the orders that she proposes would in fact constitute substantial and significant time with both parents.

16. Subsection 65DAA(3) of the Family Law Act 1975 defines “substantial and significant time” as time that includes both weekends and holidays and days that are not weekends and holidays, and time that also allows the parent to be involved in:

    a)the child’s daily routine;

    b)events that are of particular significance to the child; and

    c)occasions and events that are of special significance to the parent.

17. It is this area where the parties are at odds, both as to the amount of time that the child spends with the Father and the structure of that time.

18. The Mother seeks orders providing that the child would spend four nights a fortnight with her father until she reaches her tenth birthday, upon which date the Father’s time would increase to five nights per fortnight. Once the child reaches her twelfth birthday, the Father’s time would increase again, to seven days per fortnight, in two instalments, one of five nights and the other of two nights.

19. This is more than the Father seeks in his Amended Application.

20. The parties also seek a graduated program of school holiday time, although the reasons for this arrangement are not entirely clear, except that there may be a concern that spending more than a week away from each parent may cause the child distress at this stage. That should not be the case once she gets older.

21. In my view, there is no reason why it would not be in X’s best interests to start spending five nights a fortnight with her father, once she attains her fifth birthday, which will be on (omitted) 2016. By that time, she will have started school and should have settled into the new routine of attending school five days a week.

22. It is well established that the commencement of school is a milestone in a child’s life, and the child can find it fairly tiring at first to get used to the new routine. X is relatively young, and will only have just reached the age of four years and eight months when she starts school. By the time of her birthday, however, she will be well into her second school term and should have adjusted to the new regime by then.

23. It is difficult to predict the future too far ahead, but, all else being equal, by the time X has reached her twelfth birthday she should be well able to spend another night each fortnight in the care of her father. This would mean that X will progress to spending six nights each fortnight with her father. Her primary residence will still be with her mother but she will certainly be spending substantial and significant time with her father. My view is that the arrangements to be put into place following the child’s fifth birthday will be sufficient to meet the requirements of substantial and significant time as set out in s.65DAA(3).

1. The Mother’s proposal for the child to spend full weekends with each parent in alternating weeks appears to be in the child’s best interests, as it will not allow a change of care in the middle of each weekend. The Mother’s proposal also reduces the number of changeovers that will not take place at school, which should reduce the opportunity for friction and animosity between the parents. I am, mindful of the evidence of the Family Consultant in this regard.

2. The parents’ proposed orders are both, with respect, prolix, overly prescriptive and not easily understandable, which can lead to difficulty if they need to be enforced. Some of the Father’s proposed orders also appear to be contradictory. Neither party’s proposal takes public holidays into account. There are two public holiday Mondays in 2016 which are not included in the school holidays, namely the Queen’s Birthday in June and Labour day in October. There is little point in interrupting a long weekend and it is frequently ordered that if a child is spending the weekend with the non-residence parent then the child should spend the holiday Monday with that parent. I propose to order accordingly.

3. The parents also seek orders restricting the child’s travel out of Australia without the consent of the other parent. To some extent, these proposed orders are redundant, as s.65Y of the Family Law Act 1975 makes it an offence punishable by imprisonment to take a child to whom a parenting order applies out of Australia without the consent of the other parent or a court order.

4. That leaves the vexed question of the school to which the child is to be sent at the beginning of the first school term. Curiously, whilst this was an issue at the final hearing, neither parent sought a specific order about which school should be chosen.

5. The decision of Re G:Children’s Schooling provides a useful guide to Courts at first instance in deciding issues of this nature, which are frequently before the Court at this time of the year. X will be living predominantly with her mother and it makes sense for her to attend a school in her local area. This will, as the mother argues, allow the child to develop and maintain peer relationships. The Mother has investigated primary schools in the (omitted) area and has formed the view that (omitted) Public School in (omitted) would meet the child’s needs. This would appear to be in the child’s best interests.

6. If it should transpire that the child is unable to be enrolled at (omitted) School, then the child should be enrolled at (omitted) Public School or (omitted) Public School in (omitted).

7. I will order accordingly.

8. The Mother sought orders in her Minute of Orders relating to payment of school fees, private health insurance and medical expenses. However, the parties have already entered into final Consent Orders in relation to these and other financial issues and her Honour Judge Sexton made orders by Consent on 5^th July 2013. Accordingly, there is no basis for these matters to be reopened.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 January 2016