WALLER & CASSON

FAMILY COURT OF AUSTRALIA

WALLER & CASSON

[2015] FamCA 725

FAMILY LAW – CHILDREN – Best interests – Where there is one child who is eight years of age – Where the child lives primarily with the mother – Where there are existing consent orders in place – Where the child has a meaningful relationship with both parents – Where the mother seeks orders to change the child’s name – Where the father and the ICL oppose the mother’s application to change the child’s name –Where the Court found that the mother failed to demonstrate how changing the child’s name would serve his interests – Orders made to dismiss the mother’s application to change the child’s name – Where the father and the ICL propose to change the existing living arrangement to equal time – Where there is longstanding, ongoing conflict between the parents – Orders made that the child live with each parent on an equal time basis.

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

Chapman and Palmer (1978) FLC 90-510
Flanagan and Handcock (2001) FLC 93-074
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Waller

RESPONDENT:

Mr Casson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

FILE NUMBER:

SYC

5443

2008

DATE DELIVERED:

2 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

18 August 2015

REPRESENTATION

FOR THE APPLICANT:

Ms Waller in person

FOR THE RESPONDENT:

Mr Casson in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smith of Legal Aid NSW Sydney Central Family Law

Orders

That the following parenting orders are made in relation to the child B born … 2007 (hereinafter referred to as “the child”).
That all previous parenting orders be discharged.

Change of Name

That the mother’s application for change of the child’s surname be dismissed.

Parental Responsibility

That the mother and father have equal shared parental responsibility for the child.

Live With

That the child live with the mother each alternate week from completion of school Friday to commencement of school the following Friday commencing on 4 September 2015.
That the child live with the father each other alternate week from completion of school Friday to commencement of school the following Friday commencing on 11 September 2015.

Christmas School Vacation

That orders 5 and 6 are suspended for the period from 9.00 am on the day after the last day of required student attendance for the year pursuant to the school calendar to 9.00 am on the day prior to the first day of required student attendance for the commencement of the year pursuant to the school calendar (hereinafter referred to as “Christmas school vacation”) and the following shall apply:-
(a)B shall live with the father for the first half of the Christmas school vacation in 2015 and each alternate year thereafter;
(b)B shall live with the mother for the second half of the Christmas school vacation in 2015 and each alternate year thereafter;
(c)B shall live with the mother for the first half of the Christmas school vacation in 2016 and each alternate year thereafter;
(d)B shall live with the father for the second half of the Christmas school vacation in 2016 and each alternate year thereafter.
(e)For the purposes of orders 7(a) to (d) the midway point is the number of days covered by the Christmas school vacation pursuant to these orders divided by two with the changeover to occur at 9.00 am on that midpoint day.
(f)That orders 7(a) to (d) are to be suspended for the period from 9.00 am Christmas Eve to 5.00 pm Boxing Day and the following shall apply:-
(i)B spend time with the mother from 9.00 am Christmas Eve to 1.30 pm Christmas Day in 2015 and each alternate year thereafter;
(ii)B spend time with the father from 1.30 pm Christmas Day to 5.00 pm Boxing Day in 2015 and each alternate year thereafter;
(iii)B spend time with the father from 9.00 am Christmas Eve to 1.30 pm Christmas Day in 2016 and each alternate year thereafter;
(iv)B spend time with the mother from 1.30 pm Christmas Day to 5.00 pm Boxing Day in 2016 and each alternate year thereafter.
That for the purpose of recommencement of alternate week residence arrangements following the Christmas school vacation each year, during the week following that vacation the child shall live with the parent with whom the child lived for the first half of the said vacation.

Special Days

That in the event that Father’s Day falls on a weekend when the child is not living with the father then the child shall spend time with the father from 9.00 am on Father’s Day to commencement of school or 9.00 am the following Day.
That in the event that Mother’s Day falls on a weekend when the child is not living with the mother then the child shall spend time with the mother from 9.00 am on Mother’s Day to commencement of school or 9.00 am the following Day.

Changeover

That for the purpose of changeover other than at school the parties meet at McDonalds at Suburb C.
That in the event that the child does not attend school as a result of illness or otherwise the parties shall meet at McDonalds Suburb C for changeover.
That either party may, or his or her nominee may, attend for the purposes of changeover but the mother is restrained from nominating Mr D to attend at changeover.

Communication

That the parties shall communicate matters relating to the child only by SMS message to the mobile telephone of the other party or by email to the email address notified by the parties to each other in writing. If the parties forward an email to each other which is urgent, they are to advise the other party by SMS that an email has been sent.

School

That both parties shall be at liberty to attend any school, sporting or other functions that parents are ordinarily invited to attend.
That each of the parties shall be at liberty to attend upon any parent teacher meeting with the school at a time individually organised by them.
That neither parent shall change the child’s enrolment at E School, Suburb F without the written consent of the other party.
That once the parties have reached agreement in relation to the high school which the child will attend neither parent shall arrange the child’s enrolment to another school without the written consent of the other party.

Overseas Travel

That the passport of the child B be held by the Registry Manager of this Court at Sydney, together with a copy of these orders until it is released to either or both of the parties pursuant to order 22 below.
That the parties be permitted to remove the child from the Commonwealth of Australia on not more than one occasion each calendar year for a period of not more than twenty one (21) days on each occasion for the purpose of holiday travel provided that the party proposing the travel (“the travelling party”) shall:
(a)give to the other not less than forty-two (42) days prior written notice of their intention to so travel including:
(i)a complete itinerary, including airline ticket reservations, and details of all destinations and dates of departure and return (“the specified period”);
(ii)details of the child’s accommodation during the proposed trip including addresses and telephone numbers for places where the child will be staying overnight; and
(iii)A mobile telephone contact number whilst overseas.
That upon the travelling party’s compliance with order 20 above:
(a)Both parties will attend the Family Court Registry in Sydney at a pre-arranged time, date and place at which place they will sign a consent order to:
(i)Authorise the travelling party to retrieve the child’s passport from the Registry of the Court; and
(ii)Enable the child to travel outside the jurisdiction of the Commonwealth of Australia for the specified period.
That both parties will attend upon the Family Court Registry with:
(a) A copy of these orders; and
(b) Their passports by way of identification; and
(c)The consent orders provided for in paragraph 21 above, to secure release of the child’s passport to the travelling party.
That it is the responsibility of the travelling party to provide a copy of the consent order permitting the child’s removal from the Commonwealth of Australia to the Australian Federal Police.
That upon completion of the overseas travel, the travelling party will return the child’s passport to the Registry Manager of this Court at Sydney within three (3) working days of the completion of travel.
That the mother and/or the father take all steps and sign all documents necessary to consent to the issue of a valid passport for the child and that in the event that either party fails to sign such documents within seven (7) days of such document being submitted to him or her then the Registrar of this Court is authorised to sign such document in his or her absence.

Mediation

That the parties shall attend mediation in the event that there is any dispute regarding the child’s long term care, welfare and development.

Restraints

That neither party shall denigrate the other party in the presence of, or to, the child and shall use their best endeavours to ensure that no third party shall denigrate the other party to, or in the presence of, the child.
That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waller & Casson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5443 of 2008

Ms Waller

Applicant

And

Mr Casson

Respondent

REASONS FOR JUDGMENT

These proceedings involve parenting issues between Ms Waller (“the mother”) and Mr Casson (“the father”).
The parties commenced their relationship in September 2006 and separated in May 2008. There is one child of the relationship, B, born in 2007.
Both the mother and father are self-represented in these proceedings. Legal Aid NSW act for the Independent Children’s Lawyer (“ICL”).

Applications

The mother seeks orders in accordance with her Amended Initiating Application filed on 3 February 2015.
The first order sought related to a variation of changeover arrangements. However, the parties were in agreement that because the father has moved recently to live at Suburb G, changeovers which did not occur at the child’s school would occur at Suburb C McDonalds.
The other orders sought by the mother were as follows:
·That the father and the mother be permitted to deliver and collect the child to and from the other through their respective nominees;
·That the parties do all things and sign all documents to cause the child to be known as B Waller-Casson;
·That specified orders be made in relation to the child’s school uniform and equipment;
·That an order be made in respect of legal costs;
·That the parents share the costs of the child attending for counselling equally;
·That certain orders be made to clarify the position at the end of school holidays.
The orders sought by the ICL were in effect as follows:
·That the parents have equal shared parental responsibility for the child;
·That there be no change to the child’s name;
·That the child live with each of the parents each alternate week from completion of school Friday to the commencement of school the following Friday;
·That the child live with his parents during the Christmas school vacation on the following basis:
(a)with the father for the first half of Christmas school vacation in 2015 and each alternate year thereafter;
(b)with the mother for the second half of the Christmas school vacation in 2015 and each alternate year thereafter;
(c)with the mother for the first half of Christmas school vacation in 2016 and each alternate year thereafter; and
(d)with the father for the second half of the Christmas school vacation in 2016 and each alternate year thereafter;
(e)the mid-way point was defined;
(f)specific orders for Christmas Eve, Christmas Day and Boxing Day
·That orders be made:
- For special days as specified;
-In relation to school and sport;
-For the child to have a passport and to safeguard this;
-For non-denigration orders; and
-For changeover to be facilitated by a nominee such nominee not to include Mr D.
The father sought an equal time arrangement although in a different configuration from that sought by the ICL as well as various other orders. Upon being informed about the orders sought by the ICL the father indicated that he would be prepared to accept orders in accordance with the proposal of the ICL.
A copy of the detailed orders sought by each of the parties is annexed to these Reasons for completeness.

Background

The mother was born in 1967 and is currently 48 years of age. The father was born in 1972 and is currently 43 years of age.
In September 2006 the parties commenced a relationship.
In 2007 the child B was born. He is currently aged 8 years.
At the end of August 2007, when the child was approximately six weeks old, the parties commenced cohabitation.
In May 2008 the parties separated.
On 5 September 2011 final parenting orders were made by the Federal Magistrates Court, as it then was, by consent. The orders provided in effect as follows:
·The parents to have equal shared parental responsibility for the child;
·The child to live with his mother;
·The child to live with his father in accordance with a gradually increasing frequency of times culminating in from the commencement of school in 2013 each alternate weekend from the completion of school Friday to the commencement of school Monday as well as each week from completion of school Wednesday to commencement of school Thursday;
·The child also to live with his father during school holidays as follows:
(i)for the first half of the school term vacation commencing on the last day of the school term and concluding at 5.00 pm on the Saturday of the following week;
(ii)for the first two weeks of the Christmas school vacation commencing the day after the last day of school term at 9.00 am and concluding at 5.00 pm on the fourteenth day (with the mother to spend the next two weeks with the child) and then the first half of the remaining period in 2013 and each alternate year thereafter;
(iii)For the second two weeks of the Christmas school vacation (with the mother to spend the first two weeks with the child) and then the second half of the remaining period in 2014 and each alternate year thereafter.
·The child also to spend special days with each parent as specified in the orders.
There were numerous other orders no doubt made with the objective of assisting the parents to care for the child which it is unnecessary to set out.
On 19 March 2012 the mother filed an Initiating Application in the Federal Magistrates Court seeking final orders regarding choice of school and change of the child’s surname to Waller-Casson.
On 6 June 2012 orders were made for the appointment of an Independent Children’s Lawyer.
On 20 September 2012 interim orders were made including that the child be enrolled to commence kindergarten in 2013 at E School at Suburb F, the fees to be met by the mother and that changeover be at McDonald’s Suburb I.
On 17 October 2012 the mother filed a Contravention Application alleging that the father failed to take the child to speech therapy in January and February 2012.
On 15 March 2013 the mother filed an Application in a Case seeking suspension of the orders which provide for the father to spend time with the child.
On 10 July 2013 the mother filed an Application in a Case seeking suspension of the orders which provide for the father to spend time with the child, for the father to undertake psychological assessment and attend parenting after separation, and anger management, courses.
On 8 April 2013 the mother’s contravention application filed on 17 October 2012 was withdrawn and dismissed.
On 18 July 2013 the mother’s interim application to suspend the orders of 5 September 2011 and for the father not to spend time with the child was heard. The mother’s application was dismissed. Orders were made:
·restraining the mother from using any other name than B;
·requiring the parties to attend and complete Catholic Care Keeping Kids in Mind program;
·restraining the mother from taking the child to any treating health care professionals (excluding a GP) other than with consent of the father;
·requiring the child to attend counselling with a counsellor nominated by the ICL; and
·listing the proceedings for final hearing on 4 October 2013.
On 4 October 2013 the proceedings were transferred to this Court and listed on 19 March 2014. There have been numerous adjournments in an endeavour to have the parents resolve the parenting issues and to have an assessment made of the child’s needs.
On 23 February 2015 the matter was listed for hearing on 18 August 2015.

Change of Surname

The mother sought an order that the parties do all things and sign all documents necessary to cause the child to be known as B Waller-Casson. This application was opposed by both the father and the ICL. The mother said that she has been endeavouring now over a long time, commencing in the Federal Magistrates Court some years ago, to have the child’s surname changed. The mother said that inclusion of her surname in hyphenated form with the father’s surname would clearly identify the child’s connection with her family.
The father opposed the change on the basis that the child has been known now for the eight years of his life by the surname Casson and submitted that it is not in his interests now for there to be any change.
Ms Smith for the ICL submitted that there was no evidence before the Court to support the assertion that it would be in the child’s interest to have his name changed.
In Chapman and Palmer (1978) FLC 90-510 the Full Court (Evatt CJ, Asche and Marshall SJJ) said as follows at pages 77,675 and 77,676:
… the factors to which the Courts should have regard in determining whether there should be any change in the surname of a child include the following:
(a) the welfare of the child is the paramount consideration,
(b) the short and long term effects of any change in the child’s surname,
(c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control,
(d)any confusion of identity which may arise for the child if his or her name is changed or is not changed,
(e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage,
(f)the effect of frequent or random changes of name.
To conclude, it must be remarked that there appear to be situations where one parent or the other, and possibly both, appear to attach far too much importance to the question of the child’s surname. It is seen by some parents almost as a proprietary interest. Attitudes of this kind are unlikely to find favour with the Court, and often seem calculated to destroy the relationship between the child and the parent in question. The Court should give no encouragement to parents who seek to change a child’s name for reasons unconnected with the welfare of that child nor to parents who oppose a change only to bolster their proprietorial interest in the child. The fact that the parents are haggling over the surname can of itself engender insecurity and confusion in the child’s mind.

In Flanagan and Handcock (2001) FLC 93-074 the Full Court (Kay and Holden JJ) confirmed that in proceedings involving an application concerning a child’s name, the paramountcy of the welfare of the child, if not decisive, was certainly relevant and required careful consideration. Finn J held that “it could well be said that the welfare of the child is the paramount consideration or essential test for an exercise of the [injunction] jurisdiction under s 68B(1) …”.
In the present case, the mother has failed to put before the Court evidence which would be relevant to the matters which the Court would take into account. In particular, the mother has not demonstrated how changing the child’s surname now after eight years would serve his interests.
There is no evidence that the child has ever used a family name other than “Casson”. There is no evidence about any embarrassment or confusion about his use of this name. It would appear in all the circumstances that the mother simply has a preference to add her family name to the child’s name.
I accept the submissions by both Ms Smith and the father referred to above to the effect that changing the child’s name would not be in his best interests and propose to dismiss this part of the application.

Nominees at Changeover

Each of the parents and also Ms Smith agreed that it would be in the child’s interests for each of his parents to be able to arrange for a nominee to collect the child or deliver the child for the purposes of changeover. The mother made a strong submission that Mr D, the child’s godfather, who has known the child over many years and has been involved very much in his life, should be able to be amongst her nominees.
Both the father and Ms Smith vigorously opposed any such course on the basis that the presence of Mr D would be likely to provoke an unpleasant incident which could only cause the child distress.
In my view, it would not be in the child’s interest for Mr D to be involved in facilitating his changeover. Mr D brought private proceedings in the Local Court for issue of an Apprehended Violence Order against the father. This was unsuccessful. There has been considerable upset and distress between the father and Mr D which on occasions has spilled over to cause distress for the child. Mr D has also made complaints to the police about the father.
In my view, Mr D is not a person whom the Court could be confident, would always be able to facilitate a calm, orderly changeover. Accordingly, in my view, the mother should be restrained from including Mr D amongst her nominees to be present at changeovers, in the best interests of the child.

Passport

The parents and the ICL agree that it would be in the child’s interest to undertake some overseas travel with either parent if the opportunity for this should arise at some time in the future. It was agreed that appropriate orders would be made in accordance with those proposed by the ICL.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
It was not clear to me whether parental responsibility was in issue. But clearly the father wants to have equal shared parental responsibility for the child and such a course is supported by Ms Smith. Under the orders made on 5 September 2011 by the Federal Magistrates Court the mother and father have had the equal shared parental responsibility for the child. I am not aware of any evidence which would support a change from this situation. In my view the best interests of the child will be served by a continuation of the current order that the parents have equal shared parental responsibility for him.

Residence

If the Court is to order a child’s parents to have equal shared parental responsibility for the child, s 65DAA(1)(a) of the Act requires the Court to consider whether the child spending equal time with each of the parents would be in the best interests of the child.
As indicated above, there is a real issue concerning whether some different arrangements from the current arrangements ought to be made for the child’s residence. Because the child’s parents are to have equal shared parental responsibility for him, the Court must first consider making an order for him to spend equal time with each parent if this will be in his best interests and be reasonably practicable.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

The additional considerations are as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

I am not aware of any views expressed by the child. In any event the child is only eight years of age and the Court would be reluctant to place much weight on his views.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The child has a close relationship with each of his parents. This is supported by the observations made by Family Consultant, Ms H during her interviews for the purpose of preparing her Children and Parents Issues Assessment Report in March 2014. But Ms H did say in her report as follows:
During interview, when asked questions designed to establish who he feels closest to, the child clearly showed a preference for his mother and some confusion and anxiety about his father.
On this basis and bearing in mind that the child has always resided primarily with his mother, one would think that the child would be more closely attached to his mother than to his father.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

I am confident that the father has the willingness and ability to facilitate and encourage a close and continuing relationship between the child and his mother.
I have less confidence about the mother in this regard. The mother appears to me to have taken a somewhat over-critical approach in relation to the father’s parenting of the child. An example of this is that she has made numerous complaints from time to time that he does not provide the child with nutritious meals including appropriate school lunches. The child has become so confused about this that during the interview conducted by Ms H she observed that at one point the father asked the child if he would like a sandwich and the child said that he did not know whether he should eat “Mum’s sandwich or your sandwich”. She said that the child appeared confused and looked anxious when he said this.
Of even more concern was Ms H’s observation that during the interview the child referred to his father as “the man”. When she asked who the man was, he said “my Dad”. She said that the child indicated that he does call Mr Casson his father, or “Dad” but said that his mother calls Mr Casson “the man” and that he only refers to Mr Casson as “the man” at his mother’s home. Ms H said that it is clear that the child is used to calling his father “the man”.
This is troubling because the only interpretation I can place on this is that the mother is deliberately undermining the child’s relationship with his father.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

There was no expert evidence about what the likely effect would be of a change from the present arrangement under which the child is living primarily with his mother to an equal shared time arrangement. The mother said that she thought proceeding to a week about arrangement would be difficult for the child and that he would struggle.
This might well be the case to some extent on the basis that the child has always lived primarily with his mother. But another effect would be that opportunity for conflict between the parents at changeovers would be reduced significantly. This was really prominent in the ICL’s submission in favour of the change to an alternate week residence arrangement.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

As indicated above, recently the father moved from the southern Sydney suburbs to Suburb G which is close to where the mother resides and close to the child’s school. Accordingly there would be no practical difficulty or expense in the child having direct contact with each of his parents regularly and maintaining his close relationship with each of them.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

It is clear that each of the parents has been able to attend to the physical needs of the child and to support him in terms of his educational needs. This is also made clear from the feedback from the child’s school.
A significant deficiency in the capacity of each of his parents is that neither of them has been able to protect the child from their own conflictual and hostile relationship. Perhaps this is best illustrated by the fact that they have been engaged in litigation for almost the entirety of the eight years of the child’s life.
In my view, it is clear from Family Consultant H’s report that the child is very much aware of the conflict and has been affected by it. Ms H said that the child said to her that his mother and father are not friends. She said he suggested that both parents are angry. Ms H also said that it appeared that neither of the parents had much understanding that the child had a need for the conflict between them to stop. She suggested that perhaps Mr Casson had better insight into this than the mother because he was able to reflect on his actions over time and conceded that some of his behaviour had been “stupid and inappropriate”. Ms H said that the mother tended to excuse anything that she might have done to exacerbate the conflict by suggesting that her actions had been in the child’s best interests. Ms H said that neither parent seemed to recognise that the more they upset one another, the more difficult they made the child’s life.
Each of the parents has been active in making complaints to external agencies such as the Child Support Agency, police and Centrelink which were designed to get the other person into trouble. She said that such behaviour only served to undermine their own relationship and therefore the parenting relationship which the child needed in order to keep him safe and happy.
The mother complained that the father had shown himself to be unable always to ensure that the child arrived at school on time. The mother also made some complaints that the father tended to have a preparedness to remove the child from school to suit his family’s social commitments. In this regard the father said that there had only been two occasions in three months when he delivered the child late to school. The father conceded that he had taken the child out of school to attend family social functions on a couple of occasions. He said that having thought about these matters further, in future he would place a higher priority on the child’s attendance at school.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; and

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

The father is Aboriginal and indicated that he would like to be able to have the child participate to some extent in Aboriginal cultural events. For example, he said he would like very much to be able to involve the child in NAIDOC week. He said that to this point he has not had any opportunity to do this.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Generally the parents have an appropriate attitude to the responsibilities of parenthood with the exception of them being unable to contain their conflictual relationship.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

The mother alleges a long history of family violence perpetrated on her by the father. This is not clear to me. The child informed Ms H about an incident between the father and his father in approximately mid-2013 which appeared to involve some level of violence. When Ms H asked the father about this alleged incident the father said that he and his father had been “mucking around” and that his father had become annoyed because his glasses were bent and cut him on the forehead. She said that the father added that his father had been a boxer in earlier years and that this kind of interaction between them was not unusual. She said the father denied that they were fighting.

Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

There are no current family violence orders.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It was implicit in the submissions made by learned solicitor for the ICL that if the parents had an equal time residence arrangement not only would this provide less opportunity for conflict between them but it would also provide less opportunity for disagreements and bickering between them over what over many years have been quite trivial matters. This ought to remove to an extent some of the bases of disagreement and frustration which have led to the ongoing litigation in the past.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

Family Consultant H had a concern that the child might have had a delay in cognitive function or expressive language. She recommended that a thorough developmental assessment by a paediatrician with focus on his speech be undertaken. For some time the parents did not attend to this matter. But during the course of management of the proceedings before me an appropriate assessment was made.
The father has remarried, his spouse being Ms Casson. Ms Casson has a child J, 10 years, who lives with her and the father and they have their own child K who is 4 years of age. They live in a four bedroom rented home at Suburb G and are planning to build a new five bedroom home on land which they own there.

Primary Considerations

As indicated above, the primary considerations are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no question that the child would continue to benefit from having a meaningful relationship with both his parents. As I have said, he has a good relationship with each of them. I am satisfied that such relationships are clearly meaningful and important for him.
In relation to the second of the primary considerations, as I have said above, it is most regrettable that the parents have not been able to develop the maturity and patience to protect the child from their conflictual relationship. As also indicated above, Ms H said that the child is well aware of how his parents feel about one another and that it is likely that this has impacted his relationships with each of them. It is this failure to protect the child from what has at times really become an abusive situation for him, which has moved the ICL to urge the Court to put in place an alternate week, equal time arrangement between the parents.

Conclusion

As I have indicated above, it is likely that the child has a closer relationship with his mother than with his father. As Ms H reported during the interview with her, he clearly showed a preference for his mother and some confusion and anxiety about his father.
In my view, it is likely that the father would support and encourage the child’s relationship with his mother. On the other hand, I have serious reservations that the mother is able to do this. In my view, to an extent, she appears to have undermined the child’s relationship with his father. As I have said there are some deficiencies in the capacities of each of the parents in terms of their ability to be able to properly parent the child. Clearly, their most serious deficiencies lie in their failure to protect the child from their conflict.
I must say, all other things being equal, the appropriate arrangement for this child would involve something similar to that under the current orders. But I accept the very strong submission by learned solicitor for the ICL that the impact of the parents’ longstanding and ongoing conflict is such that it is serious and causing distress, and difficulty, for the child.
I accept the ICL’s submission that if the Court was to put in place an arrangement under which the child would live with each of his parents week about, this would obviate some of the conflict. Under such an arrangement each parent would have responsibility for all matters of the child’s nutrition, each parent would have a set of school and sport uniforms at their residence ready and available for the child and this would remove many of the bases for the petty ongoing disputation between them which has become so damaging for the child.
Such matters have included the mother checking the child’s schoolbag when he changes from his father’s care, the mother complaining about the food the father provides the child and numerous arguments about the child’s clothing, shoes, library books and homework.
Increasing the child’s time with his father would reduce opportunity for the mother to undermine the child’s relationship with his father. It would also provide more opportunity for the child to develop his relationship with his brother and step-sibling.
I take account of the fact that it is likely that there will be some distress caused to the child by such a change to his residence arrangements. But one would anticipate that things for him would settle. He would not be exposed to the instability caused by the greater number of changes of his residence involved under the current orders with the opportunity such changes have provided for considerable disruption of the child and which appear to have encouraged the parents to indulge the worst aspects of their poor relationship, and cause distress for the child.
The Court is to consider pursuant to s 65DAA(1)(b) of the Act whether the child spending equal time with each of his parents is reasonably practicable. As I have said, the parents now live within close proximity of one another and the child’s school. I have referred above to the likely impact of an equal time arrangement on the child and am satisfied that the likely positive effects will outweigh any initial distress which the child might experience. Although the parents’ relationship is very poor, as I have said, by and large they have been able to implement changeovers, at least in a practical sense. Although their current and future capacity to communicate with one another and resolve difficulties is weak, most of the changeovers will be from school so that, in my view, the alternate week residence arrangement would be reasonably practicable as required under the Act.

Holidays

The ICL proposes that the long school holiday period, Christmas/January each year be divided between the parents so that the child would reside with each of them for three weeks of that period. The mother is opposed to such an order saying that she thinks three weeks would be too long a period to be endured by the child in the care of his father in one stretch. She said that this would be exacerbated if the child was to live with his father for the last three weeks of any Christmas school vacation period as well as an additional week from time to time by operation of the alternate week residential arrangement.
The ICL has submitted that an order could be made to ensure that that three week period did not extend into the first week of the school year which would make it four weeks that the child would not have been in the care of the other parent.
I accept there is a need to put such an order in place.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 2 September 2015.

Associate: Annette Turner

Date: 2 September 2015

ANNEXURE A
Orders sought by the mother

That Order 6 of the Orders made on 5 September 2011 be varied as follows:
a.That for the purpose of changeover other than for school the mother or her nominee shall deliver the child, [B] born … 2007 (the ‘child’), to the father or his nominee at [Suburb C] McDonalds at the commencement of the time the child is to live with the father. The mother or her nominee shall collect the child from the father or his nominee at [Suburb I] McDonalds at the conclusion of the time the child is to live with the father.
That Order 2 of the Orders made on 20 September 2012 be amended to include that the father or his nominee and the mother or her nominee be permitted to deliver or collect the child to the other parent or their nominee.
That the parties do all things and sign all documents necessary to cause the child to be known as B Waller-Casson.
The parties agree that for the purposes of the child's schooling the following shall apply:
a.that the father shall return all items and/or uniforms relating to the child's schooling at changeover to the mother.
b.The father shall provide a complete set of the winter uniform throughout the child's schooling and the mother shall provide a complete set of the summer uniform throughout the child's schooling.
That the parties do all acts and things and give all consents and execute all documents and writing necessary to give effect to the Orders made herein.
That, in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar of the Court shall be satisfied upon Affidavit evidence of the party alleging the refusal or neglect that a party is in breach of these Orders.
That the party in default is ordered to pay all reasonable solicitor/client costs incurred by the party not in default for the purpose of enforcing this Order, such amount to be in accordance with the scale of the Family Court of Australia unless otherwise agreed.
That the parents equally share the costs of the child attending for counselling in accordance with Order of the Orders made on 18 July 2013.
The father shall return the child to the mother at least 48 hours before school resumes at the end of the school holidays in accordance with paragraph 1 on page 2 of the “Child Responsive Program Memorandum” dated 14 March 2014 by [Ms H]. This applies to each alternate year of the school Christmas vacation when the father has the child on the second half of the remaining period, in accordance with Order 1(f)(iii) of the Orders made on 5 September_2011.
The last day of school term is taken to be “Friday at 3pm” on the last week of the term regardless of any public holidays, pupil free days and the last day of term in accordance with the request of “clarification as to start and end of school holidays” in paragraph 3 on page 2 of the "Child Responsive Program Memorandum" by [Ms H].

Orders sought by the father

That the child of the relationship [B] born …, 2007 (hereinafter referred to as “B”) live with the father as follows:-
(a)(i) Each alternate weekend from completion of school Friday to commencement of school the following Monday commencing on the first weekend of each school term.
(ii)In each week from completion of school Wednesday to commencement of school Friday.
(i) That school holidays to commence and conclude in alignment with the terms set by [E School] or with any school that “[the child]” may be enrolled in.
(ii)On all “student free day(s)” that adjoin the commencement of the school holiday period. That the time be spent with the father and shall commence at 9am on that day (except the alternate Christmas holiday period in which the mother will commence the first week).
(iii)On all student free day(s) that follow the end of the school holiday period. That the time be spent with the mother (except the alternate Christmas holiday period in which the father will commence the first week).
That the child’s name remain as [B Casson] in accordance with both birth registration and birth certificate and not known by any other name or by any other means.
That each parent shall have 3 weeks each of the Christmas school vacation with the father to commence the first three (3) weeks in 2015 and the mother to have the second (3) weeks (alternating each year) or if agreed by each parent by SMS message.
That any remaining days outside the 6 week period of the Christmas holiday period shall be spent with that parent who has the last period with the child.
(i) In December, 2015 and each alternate year thereafter from 9 am Christmas Eve to 1.30 pm Christmas Day in 2015 and each alternate year thereafter.
(ii)from 1.30 pm Christmas Day to 5 pm Boxing Day in 2016 and each alternate year thereafter.
That on the occasion that the Easter break falls outside the school holiday period. That on the first occasion, that the child spend that period of time with the father and alternate to the mother on the (next) occasion when Easter break falls outside the school holiday period.
That the father and mother have equal share parental responsibility for the child.
That in the event that Father's Day falls on a weekend when the child is not living with the Father then the child shall spend time with the father from 9 am on Father’s Day to commencement of school or 9 am the following day.
That in the event that Mother's Day falls on a weekend when the child is not living with the Mother then the Father shall return [the child] to the mother at 9 am on Mother's Day.
That if [the child] is not living with the father on the days of the … and the … each year (being the child's siblings birth dates). That the child (B) shall live with the father from the completion of school until commencement of school or 9am at [Suburb C] McDonalds.
That for the purpose of changeover other than for school that the parties meet at McDonalds at [Suburb C].
That in the event that the child does not attend school as a result of illness or otherwise on the day that the father is to collect the child in pursuant to these Orders then the father shall collect the child from McDonalds at [Suburb C]
That the parties to communicate matters relating to the child only by SMS message to the mobile telephone of the other party or by email to the email address notified by the parties to each other in writing. If the parties forward an email to each other which is urgent, they are to advise the other party by SMS that an email has been sent.
That each of the parties shall be at liberty to attend any school, sporting or other functions that parents are ordinary invited to.
That each of the parties shall be at liberty to attend upon any parent teacher meeting with the school at a time individually organised by them.
That the mother shall pay all “associated cost” relating to the enrolment of the child at [E School, Suburb F] in accordance with previous court orders.
In the event that the mother fails to pay all “associated cost”, that the child be enrolled and attend [Suburb G Public School, Suburb G].
That all Child Support payments made by the father cease in lieu of contributing towards school uniform and agreed “extra-curricular” activities and fees.
That the father and mother pay half the cost to all agreed “extra-curricular” activities that the child may participate in, including fee's/uniform.
That the Applicant is to take all steps and sign all documents necessary to consent to the issue of a valid passport for the child and that in the event that the Applicant fails to sign such documents within seven (7) days of such document being submitted to him then the Registrar of the Family Court of Australia is authorised to sign such document in his absence.
It is the responsibility of the travelling party to provide a copy of the consent order permitting the child’s removal from the Commonwealth of Australia to the Australian Federal Police.
Upon completion of the overseas travel, the travelling party will return the child’s passport to the Federal Magistrates Court in Sydney with 3 working days of the completion of travel.
That the parties shall attend mediation in the event that there is any dispute regarding the child’s long term care, welfare and development.
That neither party shall denigrate the other party in the presence or to the child and shall use their best endeavours to ensure that no third party shall denigrate the other party to or in the presence of the child.
That the non-live with parent on the day of the child’s birthday (…) shall be able to contact the other parent by way of text message and arrange a suitable/agreed time for that parent to contact and speak with "[B]" by phone.
That the party initiating proceedings be liable for the cost of the Independent Children's lawyer if any proceeding is subsequently dismissed by the court or withdrawn before hearing.
That both court injunctions remain in place.
That [Mr D] be prohibited to participate in any changeover of child with the father.

Orders sought by the Independent Children’s Lawyer

That the mother and father have equal shared parental responsibility for the child of the relationship [B] born …, 2007 (hereinafter referred to as “B”).
That the child live with the mother each alternate week from completion of school Friday to commencement of school the following Friday commencing (date to be provided).
That the child live with the father each other alternate week from completion of school Friday to commencement of school the following Friday commencing (date to be provided)
That Orders 2 and 3 are suspended for the period from 9 am on the day after the last day of required student attendance for the year pursuant to the school calendar to 9 am on the day prior to the first day of required student attendance for the commencement of the year pursuant to the school calendar (hereinafter referred to as "Christmas school vacation") and the following shall apply:-
(a)[B] shall live with the father for the first half of the Christmas school vacation in 2015 and each alternate year thereafter.
(b)[B] shall live with the mother for the second half of the Christmas school vacation in 2015 and each alternate year thereafter.
(c)[B] shall live with the mother for the first half of the Christmas school vacation in 2016 and each alternate year thereafter.
(d)[B] shall live with the father for the second half of the Christmas school vacation in 2016 and each alternate year thereafter.
(e)For the purposes of Order 4(a) to (d) the midway point is the number of days covered by the Christmas school vacation pursuant to these orders divided by two with the changeover to occur at 9 am on that midpoint day.
(f)That Orders 4(a) to (d) are to be suspended for the period from 9 am Christmas Eve to 5 pm Boxing Day and the following shall apply:-
(i)[B] spend time with the mother from 9 am Christmas Eve to 1.30 pm Christmas Day in 2015 and each alternate year thereafter.
(ii)[B] spend time with the father from 1.30 pm Christmas Day to 5 pm Boxing Day in 2015 and each alternate year thereafter.
(iii)[B] spend time with the father from 9 am Christmas Eve to 1.30 pm Christmas Day in 2016 and each alternate year thereafter.
(iv)[B] spend time with the mother from 1.30 pm Christmas Day to 5 pm Boxing Day in 2016 and each alternate year thereafter.
That in the event that Father's Day falls on a weekend when the child is not living with the father then the child shall spend time with the father from 9 am on Father's Day to commencement of school or 9 am the following day.
That in the event that Mother's Day falls on a weekend when the child is not living with the mother then the child shall spend time with the mother from 9 am on Mother's Day to commencement of school or 9 am the following day.
That for the purpose of changeover other than for school that the parties meet at McDonalds at [Suburb C].
That in the event that the child does not attend school as a result of illness or otherwise the parties shall meet at McDonalds [Suburb C] for changeover.
That the parties to communicate matters relating to the child only by SMS message to the mobile telephone of the other party or by email to the email address notified by the parties to each other in writing. If the parties forward an email to each other which is urgent, they are to advise the other party by SMS that an email has been sent.
That both parties shall be at liberty to attend any school, sporting or other functions that parents are ordinarily invited to attend.
That each of the parties shall be at liberty to attend upon any parent teacher meeting with the school at a time individually organised by them.
That neither parent shall change the child's enrolment at [E School, Suburb F] without the written consent of the other party.
Once the parties have reached agreement in relation to the high school which the child will attend neither parent shall arrange the child's enrolment to another school without the written consent of the other party.
That the passport of the child B to be held by the Registry Manager of Sydney Family Court, together with a copy of these orders until it is released to either or both of the parties pursuant to order 15 below.
That the parties be permitted to remove the child from the Commonwealth of Australia on not more than one occasion each calendar year for a period of not more than twenty one (21) days on each occasion for the purpose of holiday travel provided that the party proposing travel (“the travelling party”) shall:
(a)give to the other not less than forty-two (42) days prior written notice of their intention to so travel including:
(i)a complete itinerary, including airline ticket reservations, and details of all destinations and dates of departure and return (“the specified period”);
(ii)details of the child's accommodation during the proposed trip including addresses and telephone numbers for places where the child will be staying overnight; and
(iii) A mobile telephone contact number whilst overseas.
Upon the travelling party's compliance with order 15 above:
(a)Both parties will attend the Family Court Registry in Sydney at a pre-arranged time date and place at which place they will sign a consent order to:
(i)Authorise the travelling party to retrieve the child’s passport from the Registry of the Court; and
(ii)Enable the child to travel outside the jurisdiction of the Commonwealth of Australia for the specified period.
Both parties will attend upon the Family Court Registry with:
(i) A copy of these orders; and
(ii) Their passports by way of identification; and
(iii)The consent orders provided for in paragraph 15 above, to secure release of the child’s passport to the travelling party.

It is the responsibility of the travelling party to provide a copy of the consent order permitting the child’s removal from the Commonwealth of Australia to the Australian Federal Police.
Upon completion of the overseas travel, the travelling party will return the child’s passport to the Family Court in Sydney within 3 working days of the completion of travel.
That the Applicant and or the Respondent may take all steps and sign all documents necessary to consent to the issue of a valid passport for the child and that in the event that the either party fails to sign such documents within seven (7) days of such document being submitted to him or her then the Registrar of the Family Court of Australia is authorised to sign such document in his or her absence.
That the parties shall attend mediation in the event that there is any dispute regarding the child’s long term care, welfare and development.
That neither party shall denigrate the other party in the presence or to the child and shall use their best endeavours to ensure that no third party shall denigrate the other party to or in the presence of the child.
That either party may or his or her nominee may attend for the purposes of changeover subject to the mother is restrained from nominating [Mr. D] to attend at changeover.

[2015] FamCA 725

2 September 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness