WADDELL & WHITTON
[2013] FMCAfam 253
•22 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
WADDELL & WHITTON [2013] FMCAfam 253
FAMILY LAW – Parenting – young child – acrimonious parenting relationship – intransigence and lack of insight on part of Father – Father seeks that Court make orders in relation to any ‘yet to be born children’ of a later relationship – best interest considerations of child of the relationship.
Family Law Act1975 (Cth) ss.60B, 60B(2)(a) & (b), 60CA, 60CC(2), 60CC(3)(a), (b), (c), (d), (f), (g), (i), (j), (k) 61DA, 65DAA
Collu & Rinaldo [2010] FamCAFC 53
Goode v Goode (2007) 36 Fam LR 422
Keach & Keach (2007) FLC ¶93-353
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439
Applicant: MR WADDELL
Respondent: MS WHITTON
File Number: CAC 684 of 2010
Judgment of: Neville FM
Hearing dates: 31 May, 1 June & 10 October 2012
Date of Last Submission: 10 October 2012 & 11 March 2013
Delivered at: Canberra
Delivered on: 22 March 2013 REPRESENTATION
Counsel for the Applicant: Self represented
Counsel for the Respondent: Ms J Godtschalk
Solicitors for the Respondent: Legal Aid, NSW
Counsel for the Independent Children’s Lawyer M G Blank
Solicitors for the Independent Children’s Lawyer Rama Myers, Family Lawyers, Wodonga, Vic ORDERS
(1)That all previous in relation to parenting be discharged.
(2)The child live with the Mother.
(3)That the Mother have sole parental responsibility for the child subject to the following:
(a)except in the case of an emergency, the Mother shall prior to implementing a decision about the child’s long term care, welfare or development write to the Father via the Communication Book:
(i)advising the Father of her proposal and inviting his response allowing at least 14 days before a decision has to be made;
(ii) if the Father offers a response, consider it;
(iii) notify the Father of her decision.
(4)That the Father have all parental responsibility as is necessary for any health or educational professional or institution dealing with the child, including but not limited to doctors and schools/pre-schools to provide him with any information about the child to which a parent is normally entitled, including but not limited to medical reports, school reports, school photographs and the like.
(5)In the absence of agreement in writing, the child is to be known and registered as [X] Waddell Whitton.
(6)That the Father spend time with the child until she commences primary school each alternate weekend from 4.00pm Friday until 4.00 pm Sunday, commencing 26 April 2013.
(7)Prior to the child commencing school, in all even-numbered years the child shall:
(a)be in the Father’s care from 10am Boxing Day until 5pm on 27 December;
(b)be in the Mother’s care from 10am Christmas Eve until 10am Boxing Day.
(8)Prior to the child commencing school, in all odd-numbered years the child shall:
(a)be in the Father’s care from 10am Christmas Eve until 10am Boxing Day;
(b)be in the Mother’s care from 10am Boxing Day until 5pm on 27 December.
(9)Upon the child commencing her first year of primary school, the Father spend time with the child as follows:
(a)during school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
(b)during each of the short school holiday periods for 4 consecutive days, at times as agreed between the parties and failing agreement, from 5pm on the second Saturday of the school holidays until 5pm on the Wednesday immediately following;
(c)for 2 one week periods in the Christmas School holidays at the end of the first year of the child’s primary schooling at such times to be agreed between the parties and failing agreement, from 5pm on the first Saturday of the holidays until 5pm on the second Saturday of the holidays and from 5pm on the fourth Saturday of the holidays until 5pm on the fifth Saturday of the holidays.
(d)At Christmas time as follows:
(i)in even-numbered years from 10am Boxing Day until 5pm on 27 December;
(ii)in odd-numbered years from 10am Christmas Eve until 10am Boxing Day.
(iii) at any other times as the parties may agree upon.
(10)In the second year of the child’s schooling and each year thereafter until the child commences secondary school, the Father spend time with the child as follows:
(a)during school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
(b)for one half of the first, second and third term short school holidays, such half to be agreed between the parties and in absence of agreement the first half in even numbered years and the second half in odd numbered years.
(c)at Christmas time as follows:
(i) in even-numbered years, from 10am Boxing Day until 10am on 2 January;
(ii) in odd-numbered years, from 10am Christmas Eve until 10am Boxing Day.
(d)for one half of the Christmas school holiday period at times as agreed between the parties and failing agreement as follows:
(i) in even-numbered years:
I. from 10am Boxing Day until 10am on 2 January;
II. from 10am 12 January until 10am 22 January;
(ii) In odd-numbered years:
I. from 10am 2 January until 10am 12 January;
II. from 10am 22 January until 10am 29 January;
(e)At any other times as the parties may agree upon.
(11)Upon the child commencing secondary school, the child spend time with the Father as follows:
(a)from the conclusion of school on Friday until 5pm Sunday every third weekend and in the event that the Father’s time falls on a long weekend including Monday or Friday the time shall be extended until 5pm on the extra day;
(b)in the school holidays as provided for in paragraphs 9(b)-(e) herein.
(12)That notwithstanding any other provision in these orders, upon the child commencing school, she is to be in the Mother’s care at Christmas time as follows:
(a)in all even-numbered years from 10am Christmas Eve until the Father’s time pursuant to paragraphs 8(d) or 9(c) commences;
(b)in all odd-numbered years, from 10am Boxing Day until the Father’s time pursuant to paragraph 8(c) or 9(d) herein commences
(13)That notwithstanding any other provision in these orders, the child shall:
(a)in all even-numbered years be in the Mother’s care from 4pm Easter Thursday until 4pm Good Friday and in the Father’s care from 4pm Good Friday until 4pm Easter Monday;
(b)in all odd-numbered years be in the Father’s care from 4pm Easter Thursday until 4pm Good Friday and in the Mother’s care from 4pm Good Friday until 4pm Easter Monday;
(14)That in the event Easter falls within the school holidays then the time that the Father is due to spend with the child pursuant to paragraph 12 herein shall be included when calculating the time the Father is to have the child in his care for the holidays pursuant to paragraphs 8(b) and 9(b) herein.
(15)That if Mother’s Day falls on a weekend when the child would be in the Father’s care, the Father’s time with the child be suspended on the Mother’s Day weekend so that the child can be in the Mother’s care and the Father shall spend time with the child the following weekend in lieu of the Mother’s Day weekend.
(16)That if Father’s Day falls on a weekend when the child would be in the Mother’s care, the Mother’s time with the child be suspended on the Father’s Day weekend so that the child can be in the Father’s care and the Mother shall spend time with the child the following weekend in lieu of the Father’s Day weekend.
(17)If the child's birthday occurs when the child is not in the Father's care, for not less than 2 hours and such time to be spent in the [C] area.
(18)That each party be at liberty to attend any events at the child's school or preschool that parents are ordinarily invited to attend.
(19)That changeover shall take place at [C] police station and once the child begins school, at school on school days and at the [C] police station on non-school days.
(20)That in the event the Child Support Assessment payable by the Father in respect of the child reaches or exceeds $150.00 per week (the amount assessed as payable to be indexed by 5% on the 1 January 2013 and each year thereafter), the mother shall share in the transport of the child at times of the overnight visits between the child and the Father and in the absence of agreement, the Mother shall deliver the child to [W] police station at the commencement of the visits and the Father shall return the child to [C] police station at the conclusion of the visit.
(21)That in the event the Father is unable to do the handover his current wife Mrs W shall do the handover of the child and in the event the Mother is unable to do the handover a maternal grandparent will do the handover of the child.
(22)That in the event the Father is more than fifteen minutes late returning the child to the Mother at the conclusion of a visit, the next scheduled visit between the child and the Father pursuant to these orders shall be cancelled.
(23)That the parties shall speak to the child by telephone as follows:
(a)upon the child commencing school, telephone calls with the Father between 6:30pm and 7:00pm on each Tuesday and each Sunday when the child has not otherwise spent time with the Father, with the Father to initiate the calls and the Mother to facilitate and have the child available to speak with the Father.
(b)when the child is spending three nights or more with the Father in accordance with these Orders, telephone calls with the Mother as agreed and failing agreement, every second day between 6:30pm and 7:00pm, with the Mother to initiate the calls and the Father to facilitate and have the child available to speak with the Mother.
(c)telephone calls on the child’s birthday, Easter Sunday and Christmas Day with the parent who does not have the care of the child at such times as agreed between the parties and failing agreement between 9.00am and 10.00am;
(d)on each of the parties birthdays between 6.30pm and 7.30pm;
(e)telephone calls at any other times as agreed between the parties;
(24)In relation to medical issues, each party shall:
(a)notify the other in writing (writing including e-mailing, texting or use of the communication book) of:
(b)any illness or injury that the child suffers which requires the child to be admitted to hospital and/or to miss three or more consecutive days of school, such notice to be provided as soon as possible and to include the name of the hospital the child attends and the diagnosis of the illness/injury the child suffers;
(c)any specialist medical appointment made for the child with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist within 24 hours of the appointment being made and such notice to include the name of the referring doctor and the reason for the specialist appointment;
(d)authorise any doctor or specialist medical practitioner that the child visits to provide the other party with any information requested by them in relation to the child, including any medical reports.
(25)That except in the case of a medical emergency, both parties are to communicate with each other by SMS message or email and such communication is to be polite, courteous and respectful.
(26)That the parties shall exchange a Communication Book at changeovers and the parties shall use the book to record matters relevant to the child’s care, those matters being detailed in Attachment “A” provided by the Parenting Orders Program.
(27)That the Father and Mother be and are hereby restrained from denigrating the other or the extended family of the other in the presence of the child and the Father and Mother are to use their best endeavours to ensure that no other person denigrates either parent in the presence of the child.
(28)That the Father be and is hereby restrained from alleging the Mother has a mental health issue or discussing such issue in the hearing or presence of the child.
(29)That Mother shall ensure that the Father’s name and contact details are included on any enrolment form completed for the child at any school or pre-school the child may attend.
(30)That each party is authorised to obtain from any school or pre-school that the child may attend copies of all school reports, school newsletters and school photographs.
(31)That the parties shall attend the Parenting Orders Program at [omitted] Family Care in Albury and shall utilise the program to attempt to resolve any disputes that may arise in relation to the child.
AND IT IS NOTED THAT:
A.That the child support currently paid by the Father for the child averages approximately $17.67 per week.
IT IS NOTED that publication of this judgment under the pseudonym Waddell & Whitton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRACAC 684 of 2010
MR WADDELL Applicant
And
MS WHITTON Respondent
REASONS FOR JUDGMENT
Introduction
1.This is a long-running parenting contest that involves a young child, almost 4 year old [X]. And notwithstanding the extreme acrimony, and the exceedingly difficult communication, between her parents, the scope of issues to be determined by the Court is relatively narrow.[1] In broad terms, the main issue relates to the time that [X] spends with her Father, and the regime by which that time may properly increase that is in her best interests.[2] A not insignificant issue also relates to ‘parental responsibility.’[3]
[1] For all of the obvious and bitter disagreement between the parties, interim consent orders (signed also by the ICL) were made on 20th December 2012.
[2] See s.60CA Family Law Act1975 (Cth).
[3] There is no suggestion that there be a change of residence, or primary care, of [X] from her Mother. And although Mr Waddell raised the prospect of possible difficulties or changes in the future that are likely to arise if/when he and his Wife have children, it is not for the Court to make orders with respect to the child the subject of the proceeding and any siblings who may be born some, unspecified time in the future. Additions to the Father’s family must necessarily be speculative, which may (or may not) arise when Mr Waddell and his Wife begin a family. The Court cannot make orders that embrace ‘possible children’ who may be born in the future.
2.In order, these reasons proceed as follows: (a) outline of orders sought; (b) evidence of witnesses; (c) evidence of family consultant; (d) legal principle; (e) consideration & conclusion.
3.
I should also mention that, immediately following the outline of orders sought, there is a table of the exhibits from the proceeding. This is included not only to make more readily accessible and identifiable the exhibits, but especially because it makes readily apparent the correspondence that Mr Waddell sent directly to the Court (i.e. directly to my Chambers), notwithstanding that he was formally advised not to do so – and on more than one occasion.[4] Giving every allowance for a self-represented litigant, including that he would not ordinarily know how many matters the Court must deal with (weekly, monthly, and yearly – even though he was so advised), the persistence of
[4] The correspondence became Exhibits B & F. In the first letter, Mr Waddell raised concerns about the Mother’s alleged mental health.
Mr Waddell’s almost badgering, single-minded pursuit of the Court to deal with his matter (a) did not reflect well on him, and (b) his formal evidence (noted below) confirmed his almost unrelenting doggedness to achieve what he saw as his entitlement (I use the word advisedly) to spend time with his daughter. I intend no offense in saying that the Father’s Cyclops-like focus (i.e. a single-eye) on his own interests, in my view, regularly put the interests of [X] as a secondary, rather than the paramount, consideration.
4.Indeed, I understand that Mr Waddell has continued on his course of regular contact with the Court both with the Chambers of the Chief Federal Magistrate, and similarly with my Chambers, in seeking to secure a judgment at the earliest possible time. While his conduct may be described as consistently persistent, harassing a court is not something to be encouraged. But he refuses to be deterred.[5]
[5] It would appear that notwithstanding the demands Mr Waddell has placed on the Court, he has not paid the hearing fees as ordered by the Court on 2nd November 2011. Thus, it would seem that demands have been all one way.
5.What continues to be particularly troubling is that, in his most recent correspondence with the Court (dated 15th March 2013), he raises what should properly be described as day to day parenting issues, such as the medical treatment of his daughter. However, he does so, certainly out of concern for her but also (a) to highlight alleged deficiencies in the Mother’s parenting, and (b) to invoke the Court’s assistance to rectify yet another ill. I need only comment that the Court is not able, and should not get involved in, such levels of micro-management of parenting. It would also seem otiose to comment further on the Father’s regular, improper communication with the Court.
Outline of Orders Sought
6.The orders sought are, in fact, in two parts. First, there is set out the orders originally sought as at the trial in May last year. Secondly, given that there was a further application by Mr Waddell in October 2012 and interim consent orders in December 2012, the Court invited the parties (and the ICL) to submit any revised set of orders sought. Thus, the second set of orders outlined below is those that take into account, as perceived by the parties and the ICL, the later developments to which I have referred. To the degree that they materially impact on the reasons below and orders made, due reference is made to any relevant difference. However, I might observe here that the substantive orders as sought by the Mother are, in my view, in [X]’s best interests. The latest ‘orders sought’ by the ICL, to a significant degree, mirror those sought by the Mother. I note too that the ICL simply supported the original orders sought by the Mother.
Applicant’s Original Orders Sought
1.That all previous orders be discharged.
2.That the Mother and Father share parental responsible for the long-term care, welfare and development of the Child of the relationship [X] WHITTON-WADDELL b. [in] 2009 hereafter called "the Child".
3.That the child’s legal name be changed on her birth certificate from [X] WHITTON to include the Father’s surname and be [X] WHITTON-WADDELL within 14 days of these orders.
4.That the Mother be responsible for making decisions in relation to the day-to-day care, welfare and development of the Child whilst ever the Child is in her care.
5.That the Father be responsible for making decisions in relation to the day-to-day care, welfare and development of the Child whilst ever the Child is in his care.
6.That at the commencement of these orders the Father shall spend time with the Child as following for a period of 3 months:
Week 1: Wednesday 9am to 5pm
Saturday 9am to Sunday 5pm
Week 2: Friday 9am to 5pm
After that 3 month period the Father shall spend time with the Child as following until the Child commences Primary School
Week 1: Monday 4pm to Tuesday 5pm
Friday 9am to Sunday 5pm
Week 2: Friday 9am to 5pm
7.Once the Child commences Primary School the Father shall spend time with the Child every alternate weekend from end of School Friday to 5pm Sunday.
8.During School Terms should the Father’s time with the Child fall on a weekend where there is a Public Holiday the following to occur. If a Public Holiday falls on a Friday the Father’s visit to commence at end of School Thursday and if a Public Holiday falls on a Monday the Child to remain in the Father’s care until 5pm Monday.
9.Travel Arrangements: Travel to be shared equally between the parents. That for the purpose of changeover the Father will pick up the child from the park near [C] Railway Station at the beginning of the time and the Mother to pick up the child from the Father’s residence at the conclusion of the Child’s time with the Father.
10.For the purpose of changeovers, the Mother and the Father shall attend, however in the event that either party is not able to attend, a close family member or friend with whom the child is familiar and secure may attend the changeover on such occasions. Each party is to notify the other party of any such change to the arrangements.
CONTACT WITH SIBLINGS
11.In the event of the birth of half-siblings of the Child being born to the Father the Child spend an additional 1 night in the care of the Father within 7 days of the half-sibling being born with the Father to provide the Mother with at least 24 hours notice of this requested visit.
12.In addition to that the Child spend an additional 2 night period within 3 weeks of the half-sibling being born in the care of the Father with the Father to provide the Mother with at least 72 hours notice of dates for this visit.
13.The Mother will be in agreement with the times that suit the Father for these additional visits. For these visits only the Mother drop off the pick up the Child to and from the Father’s residence.
14.That the Child be available for additional time with the Father on specific days of significance to the half-sibling such as half-siblings Christening, Birthdays etc.
CHRISTMAS
15.At Christmas 2012 the Father will spend time with the Child from 10am Christmas Eve to 2pm Christmas Day. The Mother will spend time with the Child from 2pm Christmas Day to 5pm Boxing Day. This arrangement to alternate in following years.
MOTHERS & FATHERS DAY
16.The Father shall not have the child on the weekend that includes Mother Day but in substitution the Father will have the Child with him on the following weekend at the same times as set out in previous Orders.
17.The Mother shall not have the child on the weekend that includes Father’s Day but in substitution the Mother will have the Child with her on the following weekend at the same time as set out in previous Orders.
CHILD’S BIRTHDAY
18.In the event that the Child is not scheduled to be in the Father’s care on her birthday the Father shall have the Child from 9am to 4pm on this day should her birthday not fall on a school day. Should the Child’s Birthday fall on a school day the Father shall have the option to spend time with the Child after school on that day.
PARENTS BIRTHDAYS
19.In the event that the Child is not scheduled to be in the Father’s care on his birthday the Father shall have the Child is his care on his birthday from 9am to 4pm.
EASTER
20.At Easter 2013 the Child shall be in the Father’s care from 10am Good Friday to 3pm Easter Sunday and the Child shall be in the Mother’s care from 3pm Easter Sunday to 3pm Tuesday. This arrangement to alternate in following years.
SCHOOL HOLIDAYS
21.The Father spend half of each School Holiday period with the Child. Unless otherwise agreed by the parents this will be the first half of each School Holiday period.
SCHOOLING
22.The Child to commence Primary School in 2015 in the year that she will be turning 6 years old.
SKYPE CONTACT
23.That the Child shall be permitted to communicate with the parent whose care she is not in by Skype at any reasonable time as agreed or failing agreement between 6:30pm and 7:00pm each Monday, Wednesday and Saturday with the party who is seeking the contact to make the Skype call.
24.That the Child be permitted to communicate with significant others including grandparents/step-grandparents, aunts, uncles and cousins during the above times scheduled with the party who is seeking the contact to make the Skype call.
DECISIONS IN RELATION TO MEDICAL CARE
25.That each party shall inform the other of all decision concerning the Child in relate to:
(a) Medical / surgical operations;
(b) All medical treatment in writing including GP, Specialists and visits to all other health professionals;
(c)Dental treatment requiring hospitalisation and / or surgery;
(d) All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the Mother and the Father and the Child.
(e)That the Father be permitted to attend at times of such appointments.
PROVISION OF INFORMATION
26.That each of the parties shall inform the other of all educational, sporting, cultural and other significant events in the Child’s life. That the parties are to inform the other of all medical, physiotherapy, counselling treatment and the like received by the Child, including any written reports whilst in their care.
NOTIFICATION OF CHANGE OF DETAILS
27.That each party provide the other within 14 days a written notice of any intended change of address for the Child and keep the other notified of the Child’s address, telephone number and email address as and if applicable.
COMMUNICATION BOOK
28.A Communication Book will be used by both parents and handed over at the beginning and conclusion of each visit for the purpose of sharing information regarding the child.
NON-DENIGRATION
29.The parties are not to denigrate nor permit any other person to denigrate either the Father or Mother or members of their respective families within the hearing of the Child.
Applicant’s Revised Orders Sought
1.That all previous orders be discharged
2.That the Mother and Father share parental responsible for the long-term care, welfare and development of the Child of the relationship [X] WHITTON-WADDELL b. [in] 2009 hereafter called "the Child".
3.That the child’s legal name be changed on her birth certificate from [X] WHITTON to include the Father’s surname and be [X] WHITTON-WADDELL within 14 days of these orders.
4.That the Mother be responsible for making decisions in relation to the day-to-day care, welfare and development of the Child whilst ever the Child is in her care.
5.That the Father be responsible for making decisions in relation to the day-to-day care, welfare and development of the Child whilst ever the Child is in his care.
6.That at the commencement of these orders the Father shall spend time with the Child as following for a period of 3 months:
Week 1: Wednesday 9am to 5pm
Saturday 9am to Sunday 5pm
Week 2: Friday 9am to 5pm
After that 3 month period the Father shall spend time with the Child as following until the Child commences Primary School
Week 1: Monday 4pm to Tuesday 5pm
Friday 9am to Sunday 5pm
Week 2: Friday 9am to 5pm
7.Once the Child commences Primary School the Father shall spend time with the Child every alternate weekend from end of School Friday to 5pm Sunday.
8.During School Terms should the Father’s time with the Child fall on a weekend where there is a Public Holiday the following to occur. If a Public Holiday falls on a Friday the Father’s visit to commence at end of School Thursday and if a Public Holiday falls on a Monday the Child to remain in the Father’s care until 5pm Monday.
9.Travel Arrangements: Travel to be shared equally between the parents. That for the purpose of changeover the Father will pick up the child from the park near [C] Railway Station at the beginning of the time and the Mother to pick up the child from the Father’s residence at the conclusion of the Child’s time with the Father.
10.For the purpose of changeovers, the Mother and the Father shall attend, however in the event that either party is not able to attend, a close family member or friend with whom the child is familiar and secure may attend the changeover on such occasions. Each party is to notify the other party of any such change to the arrangements.
CONTACT WITH SIBLINGS
11.In the event of the birth of half-siblings of the Child being born to the Father the Child spend an additional 1 night in the care of the Father within 7 days of the half-sibling being born with the Father to provide the Mother with at least 24 hours notice of this requested visit.
12.In addition to that the Child spend an additional 2 night period within 3 weeks of the half-sibling being born in the care of the Father with the Father to provide the Mother with at least 72 hours notice of dates for this visit.
13.The Mother will be in agreement with the times that suit the Father for these additional visits. For these visits only the Mother drop off the pick up the Child to and from the Father’s residence.
14.That the Child be available for additional time with the Father on specific days of significance to the half-sibling such as half-siblings Christening, Birthdays etc.
CHRISTMAS
15.At Christmas 2012 the Father will spend time with the Child from 10am Christmas Eve to 2pm Christmas Day. The Mother will spend time with the Child from 2pm Christmas Day to 5pm Boxing Day. This arrangement to alternate in following years.
MOTHERS & FATHERS DAY
16.The Father shall not have the child on the weekend that includes Mother Day but in substitution the Father will have the Child with him on the following weekend at the same times as set out in previous Orders.
17.The Mother shall not have the child on the weekend that includes Father’s Day but in substitution the Mother will have the Child with her on the following weekend at the same time as set out in previous Orders.
CHILD’S BIRTHDAY
18.In the event that the Child is not scheduled to be in the Father’s care on her birthday the Father shall have the Child from 9am to 4pm on this day should her birthday not fall on a school day. Should the Child’s Birthday fall on a school day the Father shall have the option to spend time with the Child after school on that day.
PARENTS BIRTHDAYS
19.In the event that the Child is not scheduled to be in the Father’s care on his birthday the Father shall have the Child is his care on his birthday from 9am to 4pm.
EASTER
20.At Easter 2013 the Child shall be in the Father’s care from 10am Good Friday to 3pm Easter Sunday and the Child shall be in the Mother’s care from 3pm Easter Sunday to 3pm Tuesday. This arrangement to alternate in following years.
SCHOOL HOLIDAYS
21.The Father spend half of each School Holiday period with the Child. Unless otherwise agreed by the parents this will be the first half of each School Holiday period.
SCHOOLING
22.The Child to commence Primary School in 2015 in the year that she will be turning 6 years old.
SKYPE CONTACT
23.That the Child shall be permitted to communicate with the parent whose care she is not in by Skype at any reasonable time as agreed or failing agreement between 6:30pm and 7:00pm each Monday, Wednesday and Saturday with the party who is seeking the contact to make the Skype call.
24.That the Child be permitted to communicate with significant others including grandparents/step-grandparents, aunts, uncles and cousins during the above times scheduled with the party who is seeking the contact to make the Skype call.
DECISIONS IN RELATION TO MEDICAL CARE
25.That each party shall inform the other of all decision concerning the Child in relate to:
(a) Medical / surgical operations;
(b) All medical treatment in writing including GP, Specialists and visits to all other health professionals
(c) Dental treatment requiring hospitalisation and / or surgery;
(d)All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the Mother and the Father and the Child.
(e) That the Father be permitted to attend at times of such appointments.
PROVISION OF INFORMATION
26.That each of the parties shall inform the other of all educational, sporting, cultural and other significant events in the Child’s life. That the parties are to inform the other of all medical, physiotherapy, counselling treatment and the like received by the Child, including any written reports whilst in their care.
NOTIFICATION OF CHANGE OF DETAILS
27.That each party provide the other within 14 days a written notice of any intended change of address for the Child and keep the other notified of the Child’s address, telephone number and email address as and if applicable.
COMMUNICATION BOOK
28.A Communication Book will be used by both parents and handed over at the beginning and conclusion of each visit for the purpose of sharing information regarding the child.
NON-DENIGRATION
29.The parties are not to denigrate nor permit any other person to denigrate either the Father or Mother or members of their respective families within the hearing of the Child.
Respondent’s Original Orders Sought
1. That all previous orders in relation to [X] Whitton (“[X]”) born [in] 2009 be discharged.
“Live With” & Parental Responsibility
2. That [X] live with the mother.
3. That the Mother have sole parental responsibility for [X] subject to the following:
3.1 Except in the case of an emergency, the Mother shall prior to implementing a decision about [X]’s long term care, welfare or development write to the Father via the Communication Book:
3.1.1 Advising the Father of her proposal and inviting his response allowing at least 14 days before a decision has to be made;
3.1.2 If the Father offers a response, consider it;
3.1.3 Notify the Father of her decision.
3.2 That the Father have all parental responsibility as is necessary for any health or educational professional or institution dealing with [X], including but not limited to doctors and schools/pre-schools to provide him with any information about [X] to which a parent is normally entitled, including but not limited to medical reports, school reports, school photographs and the like.
Spend Time Arrangements Until [X] Begins School:
4. That the Father spend time with [X] until [X] commences primary school as follows:
4.1 from 1 June 2012 to 2 September 2012 for seven hours on two occasions each fortnight and five hours on one occasion each fortnight in the following cycle (Week 1 commencing 3 June 2012): Week 1: Sunday 9.00am to 4.00pm
Friday 9.00am to 4.00pm
Week 2: Wednesday 9.00am to 4.00pm
Week 3: Sunday 10.00am to 3.00pm
Friday 9.00am to 4.00pm
Week 4: Wednesday 10.00am to 3.00pm
4.2 Commencing from 7 September 2012 to 11 January 2013:
Week 1: 9.00am Friday to 4.00pm Saturday
Week 2: Wednesday 9.00am to 4.00pm
4.3 Commencing 11 January 2013:
Week 1: 3.00pm Friday to 4.00pm Sunday
Week 2: Wednesday 9.00am to 4.00pm.
4.4 Prior to [X] commencing school, in all even-numbered years [X] shall:
(i) be in the Father’s care from 10am Boxing Day until 5pm on 27 December;
(ii) be in the Mother’s care from 10am Christmas Eve until 10am Boxing Day.
4.5 Prior to [X] commencing school, in all odd-numbered years [X] shall:
(i) Be in the Father’s care from 10am Christmas Eve until 10am Boxing Day;
(ii) Be in the Mother’s care from 10am Boxing Day until 5pm on 27 December.
5. That the Father’s time with [X] pursuant to paragraph 4.2 herein be suspended on the weekend commencing 28 December 2012 as [X] will be spending overnight time with the Father for Christmas in that week pursuant to paragraph 4.4(i) herein.
6. That in the event [X]’s attendance at pre-school falls on a Wednesday when [X] is due to spend time with the Father pursuant to paragraph 4.3 herein, the Father’s visit shall be changed to a day that [X] does not attend pre-school.
Spend Time Arrangements Once [X] Begins School:
7. Upon [X] commencing her first year of primary school, the Father spend time with [X] as follows:
7.1 During school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
7.2 During each of the short school holiday periods for 4 consecutive days, at times as agreed between the parties and failing agreement, from 5pm on the second Saturday of the school holidays until 5pm on the Wednesday immediately following;
7.3 For 2 one week periods in the Christmas School holidays at the end of the first year of [X]’s primary schooling at such times to be agreed between the parties and failing agreement, from 5pm on the first Saturday of the holidays until 5pm on the second Saturday of the holidays and from 5pm on the fourth Saturday of the holidays until 5pm on the fifth Saturday of the holidays.
7.4 At Christmas time as follows:
(i) In even-numbered years from 10am Boxing Day until 5pm on
27 December;
(ii) In odd-numbered years from 10am Christmas Eve until 10am Boxing Day.
7.5 At any other times as the parties may agree upon.
8. In the second year of [X]’s schooling and each year thereafter, the Father spend time with [X] as follows:
8.1 During school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
8.2 For one half of the first, second and third term short school holidays, such half to be agreed between the parties and in absence of agreement the first half in even numbered years and the second half in odd numbered years.
8.3 At Christmas time as follows:
(i) In even-numbered years, from 10am Boxing Day until 10am on 2 January;
(ii) In odd-numbered years, from 10am Christmas Eve until 10am Boxing Day.
8.4 For one half of the Christmas school holiday period at times as agreed between the parties and failing agreement as follows:
(a) In even-numbered years:
(i) From 10am Boxing Day until 10am on 2 January;
(ii) From 10am 12 January until 10am 22 January;
(b) In odd-numbered years:
(i) From 10am 2 January until 10am 12 January
(ii) From 10am 22 January until 10am 29 January;
8.5 At any other times as the parties may agree upon.
9. That notwithstanding any other provision in these orders, upon [X] commencing school, she is to be in the Mother’s care at Christmas time as follows:
(i) in all even-numbered years from 10am Christmas Eve until the Father’s time pursuant to paragraphs 7.4 or 8.3 commences;
(ii) in all odd-numbered years, from 10am Boxing Day until the Father’s time pursuant to paragraph 7.4 or 8.4 herein commences
Arrangements for Easter, Mother’s Day and Father’s Day:
10. That notwithstanding any other provision in these orders, [X] shall:
(i) in all even-numbered years be in the Mother’s care from 4pm Easter Thursday until 4pm Good Friday and in the Father’s care from 4pm Good Friday until 4pm Easter Monday;
(ii) in all odd-numbered years be in the Father’s care from 4pm Easter Thursday until 4pm Good Friday and in the Mother’s care from 4pm Good Friday until 4pm Easter Monday;
11. That in the event Easter falls within the school holidays then the time that the Father is due to spend with [X] pursuant to paragraph 10 herein shall be included when calculating the time the Father is to have [X] in his care for the holidays pursuant to paragraphs 7.2 and 8.2 herein.
12. That if Mother’s Day falls on a weekend when [X] would be in the Father’s care, the Father’s time with [X] be suspended on the Mother’s Day weekend so that [X] can be in the Mother’s care and the Father shall spend time with [X] the following weekend in lieu of the Mother’s Day weekend.
13. That if Father’s Day falls on a weekend when [X] would be in the Mother’s care, the Mother’s time with [X] be suspended on the Father’s Day weekend so that [X] can be in the Father’s care and the Mother shall spend time with [X] the following weekend in lieu of the Father’s Day weekend.
Changeover Arrangements:
14. That until [X] begins overnight visits with the Father pursuant to paragraph 4.2 herein, changeover shall take place at [W] Police station on the days when [X] is spending five hours with the Father and at [C] police station on the days when [X] is spending seven hours with the Father.
15. That upon [X] commencing overnight visits with the Father, changeover shall take place at [C] police station and once [X] begins school, at school on school days and at the [C] police station on non-school days.
16. That in the event the Child Support Assessment payable by the Father in respect of [X] reaches or exceeds $150.00 per week (the amount assessed as payable to be indexed by 5% on the 1 January 2013 and each year thereafter), the mother shall share in the transport of [X] at times of the overnight visits between [X] and the Father and in the absence of agreement, the Mother shall deliver [X] to [W] police station at the commencement of the visits and the Father shall return [X] to [C] police station at the conclusion of the visit.
17. That in the event the Father is unable to do the handover his current wife Mrs W shall do the handover of the child and in the event the Mother is unable to do the handover a maternal grandparent will do the handover of the child.
Telephone Communication:
18. That the parties shall speak to [X] by telephone as follows:
18.1 Upon [X] commencing school, telephone calls with the Father between 6:30pm and 7:00pm on each Tuesday and each Sunday when [X] has not otherwise spent time with the Father, with the Father to initiate the calls and the Mother to facilitate and have the child available to speak with the Father.
18.2 When the child is spending three nights or more with the Father in accordance with these Orders, telephone calls with the Mother as agreed and failing agreement, every second day between 6:30pm and 7:00pm, with the Mother to initiate the calls and the Father to facilitate and have the child available to speak with the Mother.
18.3 Telephone calls on [X]’s birthday, Easter Sunday and Christmas Day with the parent who does not have the care of [X] at such times as agreed between the parties and failing agreement between 9.00am and 10.00am;
18.4 On each of the parties birthdays between 6.30pm and 7.30pm
18.5 Telephone calls at any other times as agreed between the parties.
Medical Issues:
19 The each party shall:
19.1 Notify the other in writing (writing including e-mailing, texting or use of the communication book) of:
19.1.1 Any illness or injury that [X] suffers which requires [X] to be admitted to hospital and/or to miss three or more consecutive days of school, such notice to be provided as soon as possible and to include the name of the hospital [X] attends and the diagnosis of the illness/injury [X] suffers;
19.1.2 Any specialist medical appointment made for [X] with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist within 24 hours of the appointment being made and such notice to include the name of the referring doctor and the reason for the specialist appointment;
19.1.3 Authorise any doctor or specialist medical practitioner that [X] visits to provide the other party with any information requested by them in relation to [X], including any medical reports.
Communication Between the Parties:
20 The except in the case of a medical emergency, both parties are to communicate with each other by SMS message or email and such communication is to be polite, courteous and respectful.
21 That the parties shall exchange a Communication Book at changeovers and the parties shall use the book to record matters relevant to [X]’s care, those matters being detailed in Attachment “A” provided by the Parenting Orders Program.
Non-Denigration & Restraints:
22 That the Father and Mother be and are hereby restrained from denigrating the other or the extended family of the other in the presence of the child and the Father and Mother are to use their best endeavours to ensure that no other person denigrates either parent in the presence of the child.
23 That the Father be and is hereby restrained from alleging the mother has a mental health issue or discussing such issue in the hearing or presence of [X].
School Related Issues:
24 That Mother shall ensure that the Father’s name and contact details are included on any enrolment form completed for [X] at any school or pre-school [X] may attend.
25 That each party is authorised to obtain from any school or pre-school that [X] may attend copies of all school reports, school newsletters and school photographs.
26 That each party be at liberty to attend any event at [X]’s school or pre-school that parents are ordinarily invited to attend.
Attendance at POPS:
27 That the parties shall attend the Parenting Orders Program at [omitted] Family Care in Albury and shall utilize the program to attempt to resolve any disputes that may arise in relation to [X].
Respondent’s Revised Orders Sought
1.That all previous orders in relation to [X] Whitton (“[X]”) born [in] 2009 be discharged.
2.That [X] live with the Mother.
3.That the Mother have sole parental responsibility for [X] subject to the following:
a. except in the case of an emergency, the Mother shall prior to implementing a decision about [X]’s long term care, welfare or development write to the Father via the Communication Book:
i) advising the Father of her proposal and inviting his response allowing at least 14 days before a decision has to be made;
ii) if the Father offers a response, consider it;
iii) notify the Father of her decision.
4.That the Father have all parental responsibility as is necessary for any health or educational professional or institution dealing with [X], including but not limited to doctors and schools/pre-schools to provide him with any information about [X] to which a parent is normally entitled, including but not limited to medical reports, school reports, school photographs and the like.
5.That the Father spend time with [X] until [X] commences primary school each alternate weekend from 4.00pm Friday until 4.00 pm Sunday, commencing 26 April 2013.
6.Prior to [X] commencing school, in all even-numbered years [X] shall:
a) be in the Father’s care from 10am Boxing Day until 5pm on 27 December;
b) be in the Mother’s care from 10am Christmas Eve until 10am Boxing Day.
7.Prior to [X] commencing school, in all odd-numbered years [X] shall:
a) be in the Father’s care from 10am Christmas Eve until 10am Boxing Day;
b) be in the Mother’s care from 10am Boxing Day until 5pm on 27 December.
8.Upon [X] commencing her first year of primary school, the Father spend time with [X] as follows:
a) during school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
b) during each of the short school holiday periods for 4 consecutive days, at times as agreed between the parties and failing agreement, from 5pm on the second Saturday of the school holidays until 5pm on the Wednesday immediately following;
c) for 2 one week periods in the Christmas School holidays at the end of the first year of [X]’s primary schooling at such times to be agreed between the parties and failing agreement, from 5pm on the first Saturday of the holidays until 5pm on the second Saturday of the holidays and from 5pm on the fourth Saturday of the holidays until 5pm on the fifth Saturday of the holidays;
d) at Christmas time as follows:
i) in even-numbered years from 10am Boxing Day until 5pm on 27 December;
ii) in odd-numbered years from 10am Christmas Eve until 10am Boxing Day.
iii) at any other times as the parties may agree upon.
9.In the second year of [X]’s schooling and each year thereafter until [X] commences secondary school, the Father spend time with [X] as follows:
a) during school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday and in the event that the Father’s time falls on a long weekend including a Monday or Friday the time shall be extended until 5pm on the extra day;
b) for one half of the first, second and third term short school holidays, such half to be agreed between the parties and in absence of agreement the first half in even numbered years and the second half in odd numbered years.
c) at Christmas time as follows:
i) in even-numbered years, from 10am Boxing Day until 10am on 2 January;
ii) in odd-numbered years, from 10am Christmas Eve until 10am Boxing Day.
d) for one half of the Christmas school holiday period at times as agreed between the parties and failing agreement as follows:
i) in even-numbered years:
- from 10am Boxing Day until 10am on 2 January;
- from 10am 12 January until 10am 22 January;
In odd-numbered years:
from 10am 2 January until 10am 12 January;
from 10am 22 January until 10am 29 January;
at any other times as the parties may agree upon.
10.Upon [X] commencing secondary school, [X] spend time with the Father as follows:
a) from the conclusion of school on Friday until 5pm Sunday every third weekend and in the event that the Father’s time falls on a long weekend including Monday or Friday the time shall be extended until 5pm on the extra day;
b) in the school holidays as provided for in paragraphs 9(b)-(e) herein.
11.That notwithstanding any other provision in these orders, upon [X] commencing school, she is to be in the Mother’s care at Christmas time as follows:
a) in all even-numbered years from 10am Christmas Eve until the Father’s time pursuant to paragraphs 8(d) or 9(c) commences;
b) in all odd-numbered years, from 10am Boxing Day until the Father’s time pursuant to paragraph 8(c) or 9(d) herein commences
12.That notwithstanding any other provision in these orders, [X] shall:
a) in all even-numbered years be in the Mother’s care from 4pm Easter Thursday until 4pm Good Friday and in the Father’s care from 4pm Good Friday until 4pm Easter Monday;
b) in all odd-numbered years be in the Father’s care from 4pm Easter Thursday until 4pm Good Friday and in the Mother’s care from 4pm Good Friday until 4pm Easter Monday;
13.That in the event Easter falls within the school holidays then the time that the Father is due to spend with [X] pursuant to paragraph 12 herein shall be included when calculating the time the Father is to have [X] in his care for the holidays pursuant to paragraphs 8(b) and 9(b) herein.
14.That if Mother’s Day falls on a weekend when [X] would be in the Father’s care, the Father’s time with [X] be suspended on the Mother’s Day weekend so that [X] can be in the Mother’s care and the Father shall spend time with [X] the following weekend in lieu of the Mother’s Day weekend.
15.That if Father’s Day falls on a weekend when [X] would be in the Mother’s care, the Mother’s time with [X] be suspended on the Father’s Day weekend so that [X] can be in the Father’s care and the Mother shall spend time with [X] the following weekend in lieu of the Father’s Day weekend.
16.That changeover shall take place at [C] police station and once [X] begins school, at school on school days and at the [C] police station on non-school days.
17.That in the event the Child Support Assessment payable by the Father in respect of [X] reaches or exceeds $150.00 per week (the amount assessed as payable to be indexed by 5% on the 1 January 2013 and each year thereafter), the mother shall share in the transport of [X] at times of the overnight visits between [X] and the Father and in the absence of agreement, the Mother shall deliver [X] to [W] police station at the commencement of the visits and the Father shall return [X] to [C] police station at the conclusion of the visit.
18.That in the event the Father is unable to do the handover his current wife Mrs W shall do the handover of the child and in the event the Mother is unable to do the handover a maternal grandparent will do the handover of the child.
19.That in the event the Father is more than fifteen minutes late returning [X] to the Mother at the conclusion of a visit, the next scheduled visit between [X] and the Father pursuant to these orders shall be cancelled.
20.That the parties shall speak to [X] by telephone as follows:
a) upon [X] commencing school, telephone calls with the Father between 6:30pm and 7:00pm on each Tuesday and each Sunday when [X] has not otherwise spent time with the Father, with the Father to initiate the calls and the Mother to facilitate and have the child available to speak with the Father.
b) when the child is spending three nights or more with the Father in accordance with these Orders, telephone calls with the Mother as agreed and failing agreement, every second day between 6:30pm and 7:00pm, with the Mother to initiate the calls and the Father to facilitate and have the child available to speak with the Mother.
c) telephone calls on [X]’s birthday, Easter Sunday and Christmas Day with the parent who does not have the care of [X] at such times as agreed between the parties and failing agreement between 9.00am and 10.00am;
d) on each of the parties birthdays between 6.30pm and 7.30pm;
e) telephone calls at any other times as agreed between the parties;
21.In relation to medical issues, each party shall:
a) notify the other in writing (writing including e-mailing, texting or use of the communication book) of:
b) any illness or injury that [X] suffers which requires [X] to be admitted to hospital and/or to miss three or more consecutive days of school, such notice to be provided as soon as possible and to include the name of the hospital [X] attends and the diagnosis of the illness/injury [X] suffers;
c) any specialist medical appointment made for [X] with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist within 24 hours of the appointment being made and such notice to include the name of the referring doctor and the reason for the specialist appointment;
d) authorise any doctor or specialist medical practitioner that [X] visits to provide the other party with any information requested by them in relation to [X], including any medical reports.
22.That except in the case of a medical emergency, both parties are to communicate with each other by SMS message or email and such communication is to be polite, courteous and respectful.
23.That the parties shall exchange a Communication Book at changeovers and the parties shall use the book to record matters relevant to [X]’s care, those matters being detailed in Attachment “A” provided by the Parenting Orders Program.
24.That the Father and Mother be and are hereby restrained from denigrating the other or the extended family of the other in the presence of the child and the Father and Mother are to use their best endeavours to ensure that no other person denigrates either parent in the presence of the child.
25.That the Father be and is hereby restrained from alleging the Mother has a mental health issue or discussing such issue in the hearing or presence of [X].
26.That Mother shall ensure that the Father’s name and contact details are included on any enrolment form completed for [X] at any school or pre-school [X] may attend.
27.That each party is authorised to obtain from any school or pre-school that [X] may attend copies of all school reports, school newsletters and school photographs.
28.That the parties shall attend the Parenting Orders Program at [omitted] Family Care in Albury and shall utilize the program to attempt to resolve any disputes that may arise in relation to [X].
AND IT IS NOTED THAT:
A. That the child support currently paid by the Father for [X] averages approximately $17.67 per week.
Orders Sought by the ICL (March 2013)
7.It is noted that the ICL supported the Respondent’s original proposed orders in the first instance and has now provided a Minute of Orders Sought upon being given the opportunity to provide revised orders. They are as follows:
1. All previous Parenting Orders in this matter be discharged.
2.The child [X] Whitton-Waddell ("[X]") [in] 2009 live with the Mother.
Spend time arrangements until [X] commences Primary School
3.That [X] spend time with the father each alternate weekend from 4pm Friday until 4pm Sunday, commencing 26 April 2013.
4. In all even numbered years [X] shall:
i.Be in the Father's care from 10am Boxing Day until 5pm on 27 December;
ii.Be in the Mother's care from 10am Christmas Eve until 10am Boxing Day.
5. In all odd numbered years [X] shall:
i.Be in the Father's care from 10am Christmas Eve until 10am Boxing Day;
ii.Be in the Mother's care from 10am Boxing Day until 5pm on 27 December.
6.[X] shall spend time with the Father from 9am until 4pm on her birthday if that occasion occurs when [X] is not in the Father's care.
Spend time arrangements once [X] commences Primary School
7.During her first year of Primary School, [X] will spend time with the Father as follows:
(a)During school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday.
(b)In the event that the time with the Father falls on a long weekend including a Monday or a Friday, then the time shall be extended until 5pm on the extra day.
(c)During school holiday periods for 4 consecutive days of the first, second and third term school holidays, such time to be agreed between the parties and in the absence of agreement during the first half of the school holiday periods.
(d)For 2 weeks of the Christmas school holiday period being in 1 week blocks with such times to be agreed between the parties and in the absence of agreement the second week and fourth week of the school holiday period.
(e) At Christmas time as follows:
i.In even numbered years from 10am Boxing Day until 5pm 27 December.
ii.In odd numbered years from 10am Christmas Eve until 10am Boxing day
(f) At other times as agreed between the parties.
8.Commencing from the beginning of her second year of primary school, [X] will spend time with the Father as follows:
(a)During school terms, every second weekend from the conclusion of school on Friday until 5pm Sunday.
(b)In the event that the time with the Father falls on a long weekend including a Monday or a Friday, then the time shall be extended until 5pm on the extra day.
(c)During school holiday periods of the first, second and third term school holidays, for half the school holiday period, such half to be agreed between the parties and in the absence of agreement the first half in each even numbered year and the second half in each odd numbered year.
(d) At Christmas time as follows:
i.In even numbered years from 10am Boxing Day until 10am 2 January
ii.In odd numbered years from 10am Christmas Eve until 10am Boxing Day.
(e)For one half of the Christmas school holiday period at times as agreed between the parties and failing agreement as follows:
i.In even numbered years:
(a) from 10am Boxing Day until 10am 2 January
(b) from 10am 12 January until 10am 22 January
ii.in odd numbered years:
(a) from 10am 2 January until 10am 12 January
(b) from 10am 22 January until 10am 29 January
(f) At other times as agreed between the parties.
Special Occasions:
9.That notwithstanding any other provision in these Orders [X] shall:
(i) In all even-numbered years be in the Mother’s care from 4pm Easter Thursday until 4pm Good Friday and in the Father’s care from 4pm Good Friday until 4pm Easter Monday;
(ii) In all odd-numbered years be in the Father’s care from 4pm Easter Thursday until 4pm Good Friday and in the Mother’s care from 4pm Good Friday until 4pm Easter Monday;
10. That in the event Easter falls within the school holidays then the time that the Father is due to spend with [X] pursuant to Order 9 herein shall be included when calculating the time the Father is to have [X] in his care for the holidays pursuant to Orders 7(c) and 8(c) herein.
11.The Father shall not have the child on the weekend which includes Mother's Day but in substitution the Father will have the child with him on the following weekend at the same times as set out in previous Orders.
12.The Mother shall not have the child on the weekend which includes Father's Day but in substitution the Mother will have the child with her on the following weekend at the same times as set out in previous Orders.
13.On the Father's birthday the child shall spend time with the Father from 9am to 4pm on a non school day and for not less than 2 hours from the conclusion of school on a school day.
14.If the child's birthday occurs when the child is not in the Father's care, for not less than 2 hours and such time to be spent in the [C] area.
Telephone Communication
15. That [X] have the following parental communication:
(a)Telephone calls with the Father between the times of 6.30pm and 7.00pm on each Tuesday and each Sunday the child has not spent time with the Father. The Father to instigate the calls and the Mother to facilitate and will have the child available to speak with the Father.
(b)When the child is spending 3 nights or more with the Father in accordance with these Orders, reasonable telephone calls with the Mother between the times of 6:00pm and 6:30pm. The Mother to initiate the calls and the Father to facilitate and will have the child available to speak with the Mother.
(c)Telephone conversations with each parent as the child may request from time to time and each parent will facilitate the making of such calls.
Medical Information
16.The Mother shall ensure that she advises the Father within 48 hours of:
(a)Any medical problems or illness suffered [X] while in the Mother's care which require medical treatment or overnight hospitalisation.
(b) Any medication that has been prescribed for [X].
(c)In the event the Father is not present when medical appointments are made, the Mother shall inform the Father in writing as soon as practicable (writing including by emailing or texting or communication book) of any specialist medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist in relation to [X].
(d)The Mother do all acts and things necessary to enable any Dr or Specialist as referred to in the above Order to provide the Father with all reports by any such Specialist.
(e) All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the Mother and the Father and [X].
(f)That the Father be permitted to attend on such appointments.
(g)The Father shall ensure that the Mother is kept informed medical problems or illness suffered by [X] while in the Fathers care.
Schooling
17.That both parents attend for the enrolment of [X] in school unless otherwise agreed between the parties and the parties ensure that both parents names and contact details are provided to the school and included on [X]'s enrolment form.
18.That each party be at liberty to attend any events at [X]'s school or preschool that parents are ordinarily invited to attend.
19.Each party is authorised to obtain from any School or Pre School that [X] may attend, copies of all school reports, school newsletters and school photographs.
Transport for changeovers
20.That until [X] commences school, the Father will collect [X] from the park near the railway station in [C] at the commencement of the Father's contact time and the Mother will collect [X] from the front gate of the Father's residence in [W] at the conclusion of the Father's contact time.
21.When [X] commences school the preceding Order will continue but to be varied for the weekend arrangements during school terms as follows:
(a)The Father to collect [X] from school on Friday at the commencement of his time and the Mother collect [X] from the front gate of the Father's residence in [W] at the conclusion of the Fathers time.
(b)For the purpose of the changeovers, the Mother and the Father shall attend however, in the event that either party is unable to attend, a close family member or friend with whom [X] is familiar and secure may attend the changeovers on such occasions. Each party is to notify the other party of any such change the arrangements.
Communication
22. That the parties shall exchange a communication book at changeovers with each party Spend Time Arrangements Until [X] Begins School:
23. to record matters relevant to [X]'s care, including sleep routines, changes to dietary requirements and medication, appointments, and events and otherwise,
24. Except for the case of a medical emergency at which time a telephone call is to be made, both parties are also to communicate with each other via SMS message or email and such communication is to be polite, courteous and respectful.
25. That the parties are not to denigrate or allege that either party has a mental health issue, or permit any other person to denigrate either the Mother or Father or members of their respective families in the presence and hearing of [X].
26.That the parties attend and complete the Parenting Orders Program at [omitted] Family Care in Albury and attend joint sessions as facilitated by the Agency.
List of Exhibits
No. of Exhibit Description of Exhibit Party who Submitted Exhibit Witness who Proved Exhibit Notes A1 Memo of Ms D 06/09/2010 n/a n/a A2 Report of Ms D released 02/02/2011 n/a n/a A3 Report of Ms D released 04/04/2012 n/a n/a B Letter from Mr Waddell dated 21/02/2012 to Family Law Court and Chamber’s Response dated 01/03/2012 Resp Mother App Father C Photocopy of Birth Registration Statement Resp Mother App Father D Letter from Ms Whitton to Mr Waddell dated 07/04/2011 & hand written medical notes dated 06/04/2011 Resp Mother App Father E Reports of Dr S (qualified) Resp Mother App Father F Letter from Mr Waddell to Family Law Court dated 11/12/2011 and Response dated 13/12/2011 Resp Mother App Father G Letter of ICL dated 17/01/2012 and two Responses of Ms Whitton dated 30/01/2012 ICL Resp Mother H Compiled list of SMS messages from/to Ms Whitton and Mr Waddell ICL Resp Mother I Letter from Ms Whitton to Mr Waddell dated 04/05/2011 ICL Resp Mother J Letters from Mr Waddell to Ms Whitton dated 21 and 23 November 2011 Resp Mother n/a K Changeover transcripts (x2) ICL n/a The evidence of Mr Waddell
8.At the outset of Mr Waddell’s cross-examination four issues were identified, with which he agreed, as being central to those to be determined by the Court. Those four issues, briefly stated, are as follows:
a)whether or not the Court should make an order for equal shared parental responsibility for the child of the relationship;
b)whether or not her surname should be changed on her birth certificate;
c)the rate of increase in the time that the Father spends with his daughter; and
d)when and with what frequency overnight time should occur.
9.Three particular events provide convenient cameos or ‘snap-shots’ for this extremely strained relationship between the parties. Those three events might be described as, firstly, the letter from the Father’s then solicitor requiring the Mother to stop breast feeding the child on a regular basis so that the Father could spend overnight time with her.[6]
[6] See T 23-24.
10.The second issue related to the incident at a changeover where the Father was attempting to speak to the Mother but arranged for his current wife to drive [X] around and away from the changeover pending the conclusion of the discussion. This action led to [X] and her Mother being late for a specialist medical appointment.
11.The third issue related to the Father turning up unannounced with his wife and a young relative to an urgently arranged (by the Mother) medical appointment for [X] and the Father demanding that he attend the appointment.
12.These three incidents highlight the Father’s persistence - and insistence - that his time with his daughter, [X], take precedence over all other matters. The incidents also highlight (as will other matters to which I will refer shortly) the completely strained relationship between the parents. In my view the relationship is so strained that it requires the Court to make an order for sole parental responsibility in favour of the Mother, albeit that she will be required to keep the Father informed of all major issues involving the child.
13.A fourth area of comment in the litigation relates to the Father’s accusation that the Mother suffers from some ‘mental health’ problem. Throughout the documentation the Father filed in the proceedings, and equally in relation to cross-examination, he consistently raised what he described as the Mother’s “mental health” issues.[7]
[7] See T 12-13, 18, 21, 22, 26, 29, 105 and 113.
14.There are two reasons Mr Waddell gave for his view that the Mother has mental health problems. First, he says that because she does not communicate with him (at changeover and otherwise), she has a mental health issue. When it was put to him that his failure or difficulty to communicate with the Mother should, therefore, warrant mental health issues to be raised with him, he conceded (with some reluctance) that he understood the point. I am not completely certain that he did. A second aspect he raises in relation to the Mother’s mental health, relates to what might be described, in a shorthand way, as “the abortion episode”.
15.In this regard, the Father contends that earlier in their marital relationship, the Mother became pregnant and, the Father says, on her own initiative and/or under pressure from her family, the Mother had an abortion. As I note later in the evidence, the Mother’s testimony is that the abortion was a jointly taken decision by the Mother and the Father, which she did discuss with her parents, but ultimately the decision was taken by the parties. The Mother also says that she regrets the decision to have the abortion very much. As I also note later, the Mother explains the references in medical notes before the Court to “mental health”. I accept the Mother’s explanation – noted below.
16.One positive aspect of Mr Waddell’s evidence was that he did acknowledge that the Mother is a very good Mother.[8] Most unfortunately, this was essentially the only, genuinely positive comment about parenting in the course of the proceeding.
[8] T 18.
17.Although the Father initially contended that the relationship with the Mother was not highly conflictual and indeed, said that it has stayed ‘pretty much the same since late in the relationship and following separation’ – it was put to him that the family consultant, Ms D, says in her report of 24 April 2012 at para.9:
That the conflict between the parties has worsened
18.Subsequent to these questions, the Father conceded that there was a lot of “inflexibility” between himself and Ms Whitton, “and that the parties can’t communicate.”[9]
[9] See T 19, 20 and 27.
19.Next, the Father was taken to an event that involved [X] having a graze on her forehead. The Father confirmed that he had said to the Mother in relation to this graze, that “we will let DoCS investigate.”
20.The Father also conceded that the Mother tapes all of their changeovers; therefore, I take it that it was more likely than not that the Mother’s account of events (as detailed in her affidavit material) was more accurate than the recollection of the Father.[10]
[10] Exhibit K is a transcript, prepared by the Mother but checked by the ICL, of two handovers, on 23rd March & 24th June 2011, respectively. In both of them, the Father is recorded as referring to the Mother as a “dead set freak” and or him saying to her “you need some serious mental help” “you need some serious, serious mental help, you really do.”
21.I turn then to the first cameo incident to which I have previously referred. This involved the Father “receiving advice” from his then solicitor, whereby the Father wanted to have his young baby daughter from 5 pm Friday until 5 pm Monday and each alternate weekend from 10 am Monday until 5 pm Tuesday, at a time when the child was only 10 months old and she was being breastfed.[11]
[11] T 23-24.
22.The Father maintained that this demand to the Mother was put “on advice” and that he was no longer with this lawyer. He was reluctant to acknowledge that whatever the advice from his lawyer, ultimately, the responsibility rested with him as the client and moving party in the litigation, whether or not the letter was sent and the decision to make such demand formally rested with the Father.
23.The Father also maintained that he was still learning, so to speak, about being a Father and that is why he relied upon the advice of his highly experienced family lawyer who advised him to send the letter that ultimately went.
24.I need hardly observe that to demand a Mother regularly to stop (and then to resume) breastfeeding a young baby showed, in my respectful view, an alarming lack of insight in relation to the best interests of such a young child. Leaving aside whatever the insight (or lack of it) of the lawyer providing the advice, in my view, it showed a disturbing lack of insight in relation to parenting capacities and the facts and circumstances of breastfeeding a very young baby, and the inevitable, negative impact on the baby’s Mother – physiologically and otherwise.
25.It is convenient to note here one other aspect that, in my view, shows a significant character trait, namely the persistence/insistence of the Father. Of course, such a trait could be used for good, but it can also be used to harass.
26.Exhibits B and F relate to correspondence that Mr Waddell sent directly to the Court addressed to me as the presiding judicial officer. That correspondence, amongst other things, significantly denigrated the Mother. My Chambers wrote to Mr Waddell on a number of occasions requesting him to desist from (a) writing to the Court, and (b) continually denigrating the Mother. Indeed, there were two responses to the Father directing him not to write to the Court. Nonetheless, he continued to do so.
27.I understand that since the matter was heard and since Mr Waddell filed a later application that was dealt with by the Court while sitting in [W] last October that he has continued to harass the Court about when judgment would be delivered. While I understand his concern, his is one of hundreds of matters currently before the Court and the more that he harasses the Court the less time the Court has to deal with and attend to his matter along with the hundreds of others demanding the Court’s attention.[12]
[12] See T 27, 66 and 101
28.In relation to the second issue, namely, the name of the child’s surname, that has been an ongoing cause of conflict, so the Father acknowledges.[13] The Father suggests in this regard that the Mother has altered the birth certificate so that it reads only “Whitton”. Yet he confirmed in the witness box that it was his writing that was on the relevant birth registration form.[14]
[13] T 29, 51 and 101.
[14] T 32.
29.The Father did acknowledge that his constant criticism of the Mother is damaging for her and he also acknowledged that the Mother has been the primary carer of the child since birth. He also acknowledged, although it took a little time for him to do so, that his constant actions demanding time with his daughter when [X] was sick were not in her best interests.[15] Although not directly put to him, it follows from his acknowledgement that his demands for time with [X] were not in her best interests, that he was putting his interests above those of his daughter.
[15] T 34-36.
30.Yet another incident which highlights the highly conflictual relationship between the parties relates to the Father’s claim that the Mother has not, or does not, provide information to him regarding any medical appointment. The reality is, however, that on one relevant occasion, the Mother faxed to the Father the notes that were written out by the doctor. Yet the Father complained that he did not receive anything from the Mother about this medical report.[16]
[16] Copies of the Mother’s note to the Father, together with the doctor’s notes, became Exhibit D.
31.It seems to me, however, that the provision of notes from the doctor directly is more than sufficient provision of relevant information, rather than the Mother being required to provide that information herself. Put another way, it seems to me that this is a case of the Father again putting unnecessary pressure on the Mother and it is another example of needless criticism of her.
32.A further incident to which I have earlier referred related to the circumstance where the Mother was able to secure, at very short notice, an appointment for [X] with a skin specialist. Because it was so recently arranged, the Mother was not able, or did not otherwise feel it appropriate in the urgent circumstances, to advise the Father of that appointment. The Mother did advise the Father of it shortly before the changeover that was scheduled, and, upon learning of the medical appointment, the Father than contacted his wife who had [X] with her and told his wife to drive off with the child while he “discussed” with the Mother this further appointment. While I understand the Father’s actions in wanting to know more information, his actions at the time and in the circumstances involved, ultimately meant that the Mother and child were half an hour late for the medical appointment with the specialist.[17] I need hardly comment that his actions were inappropriate, ill-considered, and showed poor judgment.
[17] T 37-39.
33.On an occasion involving the child’s birthday, the Father sent a message to the Mother that he was “coming to see her with a security guard and police if need be”. The Father said in his cross‑examination that he was a little emotional when he sent that message to the Mother. Respectfully, this is a significant understatement.
34.The Father agreed that he does not provide or encourage open communication between himself and the Mother. He also said that a particular text message that had been printed out that dealt with the earlier evidence regarding the reference to a security guard and police may have been “doctored”.[18] Again, the distrust between the parents is patent.
[18] T 41 and 42.
35.The next episode of relevance related to the Father turning up with his wife and niece to a medical appointment for [X] and his insistence on going into the consultation. He simply said by way of explanation and/or justification that “the medical appointment was scheduled for my time”. He also went on to say that he and his wife and his niece just happened to go for a drive around [C] and found themselves outside the doctor’s surgery where the Mother’s car happened to be spotted. One might wonder just how random or serendipitous this discovery was.[19] I have very grave doubts that it was. Given the Father’s modus operandi, I have little doubt that he went on a deliberate reconnaissance mission to discover where the Mother and “his child” might be.
[19] T 43.
36.Unfortunately, tact, discretion, and much else besides, in my view, are sadly lacking in the Father’s parenting, or in his parental relationship with the Mother. Whatever deficiencies there might be with the Mother’s approach in dealing with Mr Waddell (and there are some, as noted below), his single-minded determination and pursuit to ensure that “his time” with “his daughter” knows little, if any, limit. Indeed, in the light of his evidence, I should be taken to make a formal finding that his parenting skills and his prudential judgment in relation to (a) dealings with the Mother, and (b) in relation to the best interests of his daughter [X], are significantly deficient.
37.Later in his cross‑examination, the Father agreed that the relationship between the parties showed an extremely high level of conflict, and that there was negligible, if any, trust between them.[20]
[20] T 43-44.
38.The Father also conceded that his proposals were invariably to increase the time with his daughter at a rate much faster than was/is proposed by the family consultant.
39.The Father also confirmed that he wants “equitable travel” in relation to cost, even though he does not share equitably in the cost of [X]’s day‑to‑day care.[21] He did say, however, that he would agree to pay regular amounts for petrol to the Mother, especially given his quite small child support payments.[22]
[21] T 46.
[22] T 62.
40.The Father’s evidence seemed to me regularly to have a fixation on speeding up the process of his time with his daughter, [X]. While I understand his concern to ensure that he spends as much time as possible with her, he has consistently shown, in my view, to lack a significant degree of appreciation of the needs of a child and to adapt to what her needs are, as opposed to his own, insistent desires and what he perceives to be his “entitlements” in relation to his daughter.[23]
[23] See T 77-78.
The evidence of Mrs W
41.Mrs W’s evidence was brief.
42.The Father’s wife is a social worker. I mention this in particular because, in many ways, I was astonished by her complicity with and apparent failure to provide measured, restraining counsel to her Husband. By virtue of his lack of restraint, Mr Waddell regularly took action which, in my view (as noted above), was not remotely in [X]’s best interests.
43.
For example, Mrs W obviously and readily agreed with the proposal that she drive [X] around for approximately 30 minutes while
Mr Waddell “discussed” with the Mother reasons and arrangements for [X] urgently to attend upon a medical specialist, but in doing, simply ensured that [X] was 30 minutes late for that appointment. Quite properly, Mrs W did acknowledge that the Mother would have been very upset with being late for that appointment.[24]
[24] T 87 ff.
44.Similarly, I was amazed that she did not see any problem attending at the doctor’s surgery without warning, just turning up with the Father and his niece without giving any notice to the Mother.[25]
[25] T 88.
45.Mrs W says that she can continue to do handovers with a view to minimising the contact between the parties to the current litigation.
The evidence of Ms Whitton
46.
At the outset, I note that Counsel for the ICL had reviewed
Ms Whitton’s therapist, Dr S’s clinical notes, and confirmed that in the view of the ICL nothing in those notes was materially relevant to the issues currently before the Court.[26]
[26] T 101-102.
47.The Mother proposes that [X]’s name be [X] Waddell Whitton; she notes that “Whitton” is currently used in accordance with the application for a birth certificate form that was signed by the Father.[27] The name as formally sought by the Mother should be made.
[27] T 101. See also Exhibit C, being a copy of the birth registration statement, with the witnessed signatures of both parties.
48.Next the Mother dealt with questions concerning the abortion from an earlier time in her relationship with Mr Waddell. As I previously observed, the Mother says that the abortion was a joint decision which she regrets very much. Similarly, she says that contrary to the Father’s constant assertions, she has never had postnatal depression.[28]
[28] T 113.
49.Next, the Mother explained that when she saw Dr S it was for therapeutic counselling which had been recommended by the Court. Dr S had recommended that she enter a mental health care plan because this would enable her ongoing counselling to be paid for, and at a much lower cost. It was only for this reason that she signed a form that referred to a “mental health care plan” but which has subsequently been the subject of constant fixation by the Father in raising mental health issues against the Mother.[29]
[29] See the medical records in relation to the Mother that became Exhibit E. They include a document that is headed “Mental Health Care Plan.” Significantly, part of the exhibit is a letter from Dr M (the Mother’s GP) to Dr S. The letter confirms that Dr S saw the Mother in relation to “management of anxiety”, and that [otherwise] she is on no medication.
50.The Mother proposed that the parties see a case worker every six months until [X] starts school. The case worker is at the Parenting Orders Program which both parties have attended.[30] In my view, this is an eminently sensible course, and can only benefit the parties.
[30] T 114.
51.On a number of occasions throughout her cross-examination, both by the Father and by Counsel for the ICL, Ms Whitton referred to conversations to which she deposed in her affidavit material and that each of the matters deposed to had been extracted from tape recordings of the relevant incidents.[31]
[31] See T 123-125.
52.In relation to the incident at the doctor’s surgery, Ms Whitton explained that she had taken [X] to the hospital; she was advised that the doctor had recently left the hospital; she then contacted the doctor who suggested that she come immediately to his surgery. In those circumstances, it made it impossible for her to contact the Father to give him any prior notice.[32]
[32] T 129 ff.
53.In relation to her use of a communication book, the Mother said that she did not use it for some time because of the acrimony between the parents. In a different vein, the Mother says that she does not want any financial or other help from the Father but only that he do all the travel to pick up and to collect [X].[33]
[33] T 152-153.
54.In response to questions from counsel for the ICL, the Mother confirmed that she did not notify the Father of [X]’s swimming lessons. She conceded that it would have been helpful to do so.[34] She also confirmed that although she had a preference for which school [X] would ultimately attend, she has not as yet made any actual decision in this regard. She also conceded that she refused to use a communication book initially when that was recommended or proposed by the Father but did so when recommended by the ICL.[35] In this regard, the Mother confirmed that in fact the communication book was going okay at the moment and that she was relatively content to keep using it.[36]
[34] T 158.
[35] T 161
[36] T 164.
55.In response to further questions from counsel for the ICL, the Mother said that she had not deliberately sought to make things difficult for the Father spending time with [X], but the problem always for her was that there was a history of the Father constantly berating her for what he said were her shortfalls as a parent. Therefore, she tried to keep communication with the Father to a minimum which she saw to be necessarily protective of her and of [X].[37]
[37] T 167, 171 and 174.
56.As a general comment, I accept Ms Whitton’s evidence. Where there is any conflict between her evidence and that of Mr Waddell (or that of Mrs W) I should be taken to prefer that of Ms Whitton. In particular, I accept that Ms Whitton has the primary care of [X], and that her actions have been, in large measure, to protect her from the attacks on her parenting by Mr Waddell. I also accept that, notwithstanding the relentless harassment of her, she has continued to attempt to preserve and to protect [X]’s relationship with her Father.
Evidence of the family consultant
57.There was very little [oral] evidence taken from the family consultant (Ms D) and was limited to the following matters.[38]
[38] Ms D’s reports became, respectively, Exhibits A1-3. All of them record significant discord between the parties.
58.First, Ms D, suggests that there be a neutral, family-friendly changeover venue such as a children’s contact centre. Secondly, she confirmed that it would be appropriate for [X] to spend longer periods with her Father. Thirdly, Ms D again noted the very high conflict between the parents.[39]
[39] See in particular, paras.9, 15, & 17 of Ms D’s Report, released to the parties on 24th April 2012 (Exhibit A3). I might also note here that brief evidence, via telephone, was given by Ms Whitton’s Mother. In my view, it added little to any of the evidence before the Court. Accordingly, I do not propose to deal with it further.
59.In relation to the first report of Ms D (dated 6th September 2010; Exhibit A1), the family consultant noted the issues then in dispute as “the child’s time with the Father”, “changeover/transport arrangements,” and “parental communication.” Ms D also noted, at p.2 of the Report, relevant factors involved in the dispute as including the tyranny of distance, the child’s tender age and developmental stage, the Mother’s emotional vulnerability, the lack of effective parental communication, and the high levels of distrust between the parties.
60.In her second report (dated 2nd February 2011; Exhibit A2), which was more expansive and detailed than the first, highlighted, at para.2, almost all the same issues as noted in the first, extended memorandum, to which I have just referred. In addition, Ms D noted that the child ([X]) had recently been exposed to a “serious incident of parental conflict.” As noted later in the report, this arose at a hand-over in December 2010, which also involved the maternal Grandparents as well as the parents.
61.It is important to record the following from Ms D’s report (para.9):
It is… apparent that Mr Waddell and Ms Whitton take much delight in their daughter. However, each of them has been emotionally affected by their separation and the conflicted nature of their current parental relationship. Although they understand and are alarmed about the impact of ongoing conflict on [X], Mr Waddell and Ms Whitton are still at a point of blaming each other.
62.The second report concluded as follows (para.23):
The current high levels of parental conflict coupled with the low levels of parental communication predicate against [X] spending an overnight with Mr Waddell at this stage of development. In addition, the quality of the father/daughter relationship would need to strengthen and [X] would need to feel secure and comfortable in Mr Waddell’s household before any consideration could be given to an overnight stay. The complexity in this family situation is that these factors also make it difficult to evolve parenting arrangements into defined long term court orders. Mr Waddell and Ms Whitton clearly need more professional assistance, and given the high levels of parental acrimony and [X]’s very young age a referral to the parenting orders program would seem to be the most appropriate referral….
63.
In her final report (dated 18th April 2012; Exhibit A3), Ms D noted, at para.9, that (a) the conflict between the parents had escalated, at para.10 (b) Mr Waddell considered Ms Whitton to have psychological issues because she appears to be relentless in her desire to limit his time with [X], and at para.11, (c) Ms Whitton feels harassed by
Mr Waddell, among other things, because of his constant complaints against her.
64.At para.15 of the final report, Ms D said: “At this stage, due to the significant levels of parental acrimony and poor communication, it may be difficult for the parents to effectively manage equal shared parental responsibility.”
65.It may be observed that a significant feature of the parenting relationship, as observed through the family reports over a number of years, is that it has been characterised by an extreme level of rancour and hostility. Such qualities invariably are harmful to children, as well as to the parents. Most unfortunately, there seems to have been little or no diminution in this hostility, and little or no capacity on the part of one or both parents to take precautionary action to minimise it, and particularly to quarantine [X] from its effects. Indeed, some of the action of the Father and his Wife to which I have referred only seem to have exacerbated the parental rancour. Worse still, some of the incidents noted have [lamentably] involved [X] directly.
Outline of Legal Principle
66.A convenient overview of the legislative parameters and considerations under Part VII of the Act to which the Court must have regard is provided by Brown J in Mazorski v Albright. I set out below [3] – [6] from her Honour’s judgment and respectfully adopt it for its succinct outline of relevant sections (and principles) of Part VII of the Act:[40]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[40] (2008) 37 Fam LR 518. Her Honour’s remarks, in relation to the “twin pillars” and in relation to “meaningful relationship”, have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2012) 45 Fam LR 129.
67.Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[41]
[41] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration & Conclusion
68.Section 61DA of the Act provides for a presumption of equal shared parental responsibility when making parenting orders. The presumption does not apply, among other things, in circumstances where the evidence satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.[42]
[42] In particular, see s.61DA(2) and s.61DA(4).
69.In this case, the Mother, and the ICL, seek an order that she have sole parental responsibility. The Father seeks an order for equal shared parental responsibility.
70.In my view, the evidence makes plain that it is not in [X]’s best interests that her parents have equal shared parental responsibility. Among other things, the parental relationship is nigh on unworkable. It is clearly very hostile. The Mother should have sole parental responsibility for [X]. However, in relation to major long-term issues, as defined in s.4 of the Act, the Mother is to keep the Father advised of decisions so made.
71.The order for sole parental responsibility precludes the necessity for the Court to consider the terms of s.65DAA.
72.Following the basic contours and order of the legislative pathway, I note the following. Unless otherwise required, I should be taken to follow, in order, the sequence of considerations in s.60CC(3). In relation to the conclusions reached in relation to each particular matter noted, I should be taken to make a formal finding.
73.First, because of [X]’s young age, there are no “views” for the Court to consider.
74.Secondly, notwithstanding the clear and strident strain between the parents, [X] has a good relationship with both parents. That being said, as Ms D noted in her most recent report, as [X] grows older, and if the level of conflict between her parents persists, it will be more and more difficult to shield her, and its most harmful consequences, from it.
75.
Thirdly, for reasons already noted, in my view, as primary carer,
Ms Whitton has accommodated, promoted and facilitated, as best she can, [X]’s relationship with her Father. On the other hand,
Mr Waddell’s belligerent denunciation and harassment of the Mother, both at changeover and otherwise (e.g. attending on a doctor’s appointment with the young child without notice) can only do increasing harm both to the parental relationship and ultimately to [X]. He seems utterly incapable of controlling or restraining his pursuit of the Mother and “his time” with [X]. His attitude, and capacities in relation, to the responsibilities of parenthood are significantly limited, primarily because he views parenting as a “right” to which he is entitled, but which necessarily puts the best interests of his daughter as a secondary consideration.
76.
I have no doubt that Mr Waddell will disagree with such an assessment, and contend that his daughter has a “right” to spend time with her Father and that that is in her best interests.[43] That may, ultimately, prove to have some weight to it. However, on the evidence before the Court, particularly his constant berating and denigration of the Mother, unfortunately confirms my overall very poor assessment of
Mr Waddell. Unfortunately, I have little confidence that he can or will change his behaviour towards her or otherwise temper his belligerence and gain some insight into the responsibilities of parenthood, which are child-focussed, rather than his current “Father-focussed” approach.[44]
[43] Such a “right” is recognised as a “principle” under the Act – s.60B(2)(a) & (b). But this principle is stated to be subject to whether it is in the ‘best interests of the child.’
[44] See s.60CC(3)(c) & (i).
77.In my view, the orders proposed by the Mother (as generally supported by the ICL) are in [X]’s best interests. They will shield [X], as much as legally possible, from the parental discord. Accordingly, those orders will, in my view, cause or pose little significant change in the child’s circumstances such as to impact on her separation from either of her parents.
78.The parents live some distance apart (Mr Waddell in [W]; Ms Whitton in [C] – a distance of approximately 78 kilometres, and a drive of approximately one hour). The parents have been living with this distance since separation. Thus, for the next year or two, little will change in terms of ‘practical difficulty and expense’ of [X] spending time with her Father. Things will more likely change when she begins school. In my view, Ms Whitton’s orders (as supported by the ICL) address that eventuality. I note again that it is not proposed that [X]’s primary care change from her Mother.
79.Given Mr Waddell’s acknowledgment that Ms Whitton is a good Mother, there is no suggestion that she cannot (or will not) provide all relevant needs of the child now and in the future, and having proper regard to her age, and the other matters set out in s.60CC(3)(f) and (g). In relation to Mr Waddell’s capacities, I have commented enough already about his limitations. However, because Ms Whitton proposes (as does the ICL) that the time for Father and daughter increase in a staged manner, I take it that neither Ms Whitton nor the ICL have sufficient concerns about Mr Waddell being able to care and provide for [X] while-ever she is in his care.
80.There are no issue of domestic violence that arise for consideration under s.60CC(3)(j) and (k).
81.As confident (or diffident) as a trial Court can be, the orders made are, in my view, the least likely to result in further litigation.[45] Much more importantly, in my view, the orders proposed are in [X]’s best interests. They conform to the precepts (objects) and principles set out in s.60B and s.60CC(2).
[45] S.60CC(3)(l).
82.
One final observation, which arises out of Mr Waddell’s revised orders sought. At the outset of these reasons I noted that the Court cannot and would not make orders in relation to time that [X] should spend with any ‘yet to be born’ siblings. And even though this was raised by
Mr Waddell in the course of the trial, and he was advised that the Court could not make such speculative orders, in the revision of his orders, it will be observed that he has included a section headed “Contact with Siblings.” For ease of reference I set out that order sought as follows:
In the event of the birth of further half-siblings of the Child being born to the Father the Child spend an additional 1 night in the Father’s care within 7 days of the half-sibling being born with the Father to provide the Mother with at least 24 hours notice of the requested visit.
83.In addition to the [legal] difficulty already noted, the logical consequence of the order, as drafted, is that for each additional child born to Mr Waddell and his Wife, the Father gains an extra night with [X].[46] Logically, this could (or would) lead to the usurpation of the orders made by the Court because it would, by natural attrition, erode the Mother’s time with [X] and increase the Father’s time. Leaving that problematic matter to one side, of more immediate significance is that the Father’s order proposes that within seven (7) days of a new-born baby at his residence, he and his Wife would have [X] for an extra night. I am not sure that his Wife (who would be recovering from giving birth) would necessarily embrace such an extra person in the house at such a time. She may be an immensely capable Mother; she may not. The Court has no way of knowing.
[46] Strictly speaking, the infelicitous wording of the order as drafted – “the birth of further half-siblings of the Child being born to the Father” - suggests that Mr Waddell is the one who gives birth to the child; the Father is not to be criticised for the unfortunate expression.
84.The order proposed by Mr Waddell, in my view, would be an unnecessary complication in lives that are already, and with a newborn baby would be the more so, stretched. Respectfully, this is another instance where Mr Waddell’s earnest desires take precedence over common sense, practicality, and the best interests of all – including [X].
85.The orders proposed by the Mother (essentially supported by the ICL) are now sanctioned by the Court, and are in [X]’s best interests.
86.Formally, the Court makes orders as sought by the Mother. Moreover, in my view, the more recent orders sought by her (a) are in [X]’s best interests (as were the original orders sought), and (b) do not warrant any further consideration different to the consideration of the earlier orders set out in these reasons.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Neville FM.
Associate:
Date: 22 March 2013
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