Warner and Warner
[2016] FCCA 703
•1 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARNER & WARNER | [2016] FCCA 703 |
| Catchwords: FAMILY LAW – Parenting – where there is a young child displaying some anxiety – where the parents live a considerable distance apart – where the mother and the father have different perspectives as to the child coping with time with the father and separation from the mother – where the child living with the mother is conceded but the parents propose different time frames for gradual increases in time with the father – where two family reports have addressed such issues and the progression in time with the father – where the paramount consideration as always is the welfare of the child – where the family report writer suggests a graduated increase in time to be spent by the father with the child falling between the proposals of each parent – where consideration is given to the different parental perspectives – where orders are made to provide certainty as to the time to spent with each parent. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DA, 61C, 61D, 61DA, 65DAA(5), 65DAC, 65DAE |
| Jones & Dunkel (1959) 101 CLR 298 Heath & Hemming (No 2) [2011] FamCA 749 U v U (2002) 211 CLR 238 MRR v GR (2010) 240 CLR 461 |
| Respondent: | MR WARNER |
| Respondent: | MS WARNER |
| File Number: | TVC 211 of 2014 |
| Judgment of: | Judge Coker |
| Hearing date: | 17 February 2016 |
| Date of Last Submission: | 17 February 2016 |
| Delivered at: | Townsville |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mclennan |
| Solicitors for the Applicant: | Macdonnells Law |
| Counsel for the Respondent: | Dr Sayers |
| Solicitors for the Respondent: | Clewett Lawyers |
ORDERS
That all previous Orders in relation to Parenting be discharged.
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born 2013, subject to the Mother consulting with the Father except in circumstances of emergency in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
That notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.
That each parent shall be responsible for decisions concerning [X]’s day to day care, welfare and development when [X] is living with or spending time with that parent.
Parenting arrangements for [X]:
That [X] live with the Mother in Town 1.
That [X] spend time with the Father at all reasonable times as agreed and in particular:
(a)From the date of this order until 1 October 2016 for three full days and two nights to be nominated by the Father in each month in Town 1 with the Father to collect the child from the Mother at 9.00am on day 1 and return the child to the Mother at 5.00pm on day 3.
(b)From 1 October 2016 until 1 April 2017 for four full days and three nights to be nominated by the Father in each month in Town 1 with the Father to collect the child from the Mother at 9.00am on day 1 and return the child to the Mother at 5.00pm on day 4 with the time in December not to include Christmas Day.
(c)From 1 April 2017 until 1 February 2018 for five full days and four nights to be nominated by the Father in each month with the Father collecting the child at 9.00am or as otherwise agreed on Day 1 and return the child to the Mother at 5.00pm or as otherwise agreed on day 5 with changeovers to occur at Brisbane Domestic Airport or as otherwise agreed in writing and with the Father’s time to include Christmas Day in 2017.
That in substitution of one occasion to be spent by the Father with the child pursuant to the preceding Orders 6(a) & (b), the Mother shall accompany the child to Town 2 once in each six months to enable the Father to spend time with the child for the same period of time as provided pursuant to these Orders but in Town 2.
That for the purposes of Orders 6(a) & (b) herein, the Father shall be responsible for his own travel and accommodation costs absolutely and for the purposes of Order 7 herein, the Mother shall be responsible for her and [X]’s travel and accommodation costs absolutely.
That for the purposes of Order 6(c) herein, the Father shall be responsible for his own travel and accommodation costs absolutely and he and the Mother shall be jointly responsible for [X]’s travel costs upon an apportionment of 75% payable by the Father and 25% payable by the Mother with the Father to be responsible for bookings to be made at least 21 days prior to travel and for the Mother to pay to the Father 25% of the travel costs within 7 days of receiving written notification of those costs.
That upon the child commencing school the Father shall spend time with the child at all reasonable times as may be agreed and in particular:
(a)For up to two occasions each term for a weekend nominated by the Father at least 14 days prior to the weekend commencing from after school Friday until before school Monday or Tuesday should the Monday be a Public Holiday or Pupil Free Day; and
(b)For one half of the end of term 1, 2, 3 & 4 Queensland gazetted school holiday period commencing in 2018 and unless otherwise agreed for the second half in even numbered years and the first half in odd numbered years with changeovers to occur at Brisbane Domestic Airport or as otherwise agreed in writing.
That for the purposes of Order 10(a) herein, the Father shall be responsible for his own travel and accommodation costs absolutely.
That the Father and the Mother shall be equally responsible for [X]’s travel costs with the Father to be responsible for bookings to be made at least 21 days prior to travel and for the Mother to pay to the Father 50% of the travel costs within 7 days of receiving written notification of those costs.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
Special Occasions:
That the parents spend time with [X] on special occasions as agreed in writing though pursuant to the preceding Orders as to the staged increases in time to be spent by the Father with the child:
(a)Should the child not be in the care of the Father on Father’s Day, then the Father may spend that weekend with the child (including Father’s Day) provided that notice in accordance with these Orders is given;
(b)The Mother is to spend the weekend that includes Mother’s Day with the child;
(c)The Mother is to spend the child’s Birthday with the child in odd years;
(d)The Father is to have the opportunity to spend the child’s Birthday with the child in even years provided that notice in accordance with these Orders is given.
(e)Should the parties not otherwise agree then the child is to be baptised in Town 2 on a date to be nominated by the Father upon the giving of at least 42 days’ notice to the Mother. The parents are to jointly make arrangements with regard to the celebrant and any celebration to follow the baptism and failing agreement then that the Father be at liberty to make such arrangements and to advise the Mother accordingly.
Whilst in the care of the other party for special occasions, [X] will be available for FaceTime or other reasonable forms of electronic communication with the other parent at any reasonable times.
That neither parent will denigrate the other parent or their family members in front of or in the presence and hearing of the child, or allow another person to do so.
That this Order authorises any school/s attended by the child to provide each parent, at the expense of that parent, copies of school reports, school photographs and any other school-related correspondence or information usually provided to parents.
That this Order authorises any medical or allied health practitioner/s attended by the child to provide to each parent, at the expense of that parent, copies of all medical reports, correspondence and any other information usually provided to parents.
That each party is entitled to attend at the child’s day-care, pre-school, school, and other institutions or organisations providing extra-curricular education or activities subject only to the policies of the relevant institution or body.
That the child shall communicate with the Father via telecommunication or other electronic means not less than twice per calendar week at times as agreed between the parties and failing agreement at 6.00pm on Monday and Thursday.
That when the child is spending time with the Father pursuant to these Orders, the child shall communicate with the Mother via telecommunication or other electronic means not less than twice per calendar week at times as agreed between the parties and failing agreement at 6.00pm on Monday and Thursday.
That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
That the parties encourage and not undermine the child’s relationship with the other party.
Child’s Surname
The child is to be referred to by her surname WARNER and in respect of any school enrolment, school records, medical and hospital records, Centrelink and Medicare records and any applicable Commonwealth and State Government records, the Mother and Father are to refer to the child by the surname WARNER.
Dispute Resolution
That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
(a)The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner;
(b)The parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(d)In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The Father shall choose one (1) of the listed practitioners with seven (7) days of the receipt of the list; and
(f)If the Father fails to choose then the Mother may choose.
Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Warner & Warner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 211 of 2014
| MR WARNER |
Applicant
And
| MS WARNER |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION & APPLICATIONS:
These proceedings were commenced on 3 March 2014 by Mr Warner. For convenience, I shall refer to him as the father. In the initiating application the father sought orders with regard to the parenting of the child, [X]. At the time of filing [X] was only about nine months of age, having been born on 2013. [X] is the child of the father and Ms Warner, whom I shall refer to as the mother.
The father, as I indicated, sought both final and interim orders, and there were certainly a number of matters dealt with over time, in relation to the interim proceedings before the court. The primary application, however, and the one that is now being dealt with is the application with regard to final arrangements, in relation to [X]’s parenting.
In the initiating application, the father proposed on a final basis, that [X] live with each parent on a shared care basis, and that the parents have equal shared parental responsibility for the child. It is noteworthy that there appears to be, at least on the face of it, some contradiction between what is proposed immediately in relation to [X] spending time with each parent on a shared care basis and what is proposed upon [X] commencing school.
Although it was a little unclear at the commencement of the proceedings, what is abundantly clear is that by the time the matter progressed to the final hearing commencing on 17 February 2016, more specific orders were being sought, in relation to arrangements with regard to parenting.
From the mother’s perspective, the initial response was an interesting one. It was filed on 24 April 2014, only a little while prior to the application in its first iteration being returnable before the court. What was proposed was simply that the application be dismissed and that the applicant pay the respondent’s costs. The thrust of that application related to the fact that there had not been any form of family dispute resolution conducted prior to the proceedings being brought and it was therefore suggested that they were premature.
The determination made on the first instance that the matter came before the court, was that it was not an inappropriate application to be made, as there were certainly orders being sought with regard to a recovery order and the return of the child to Town 2, being the locality in which the father resided, and as a result of that it was determined that an appropriate response would be one in which there was a specific outline and detailing of what orders were proposed by the Mother, in relation to the parenting of the child.
An amended response was therefore filed by the mother on 11 June 2014 which detailed at some length the proposals with regard to the parenting of [X]. Also raised were issues with regard to both spousal maintenance and a property settlement, as well as issues in relation to interim costs associated with the proceedings.
Fortunately, the parties were able ultimately to reach agreement in respect of the various other issues that arose, particularly as a result of the filing of the amended response, and orders by consent were made in relation to property settlement and matters incidental to that. However, the parenting issues remained live up to and including hearing.
In the amended response of 11 June 2014 the mother detailed the orders that she proposed in relation to the parenting of [X]. Those orders could be summarised as follows:
·That the parties have equal shared parental responsibility in relation to decisions to be made with regard to the child, [X];
·That the child live with the mother;
·That the mother be permitted to locate and establish the child’s residence in the Town 1 area;
·That whilst the father continued to live in north Queensland that he have the opportunity to spend time with the child with gradual increases developing after [X] turned two, and then upon her commencing school;
·That the father and the child have the opportunity to communicate by telephone each day.
Thereafter, orders were proposed by the mother in relation to how changeovers should be effected and where they should occur, as well as proposals in relation to the responsibility of each party with regard to the costs that might be associated with the father spending time with the child, including particularly in circumstances where, as was proposed, the father would have the opportunity to spend some time with [X] in Town 2 after she turned two, and that the father should be responsible for the mother’s travel costs.
It was also noted that the orders included reference to various authorisations provided to each parent so as to enable them to obtain information with regard to the child’s education progress, and to obtain information with regard to school reports and other matters, arising in relation to the child’s education. The mother additionally proposed that there should be orders with regard to exchanges of information between the parties and that each of the parents should not criticise or denigrate the other parent or the other parent’s family in the presence of or within the hearing of the child.
The father responded to that amended response by way of the filing of an amended initiating application on 27 June 2014. That response, however, addressed simply the additional issues that had arisen in relation to property and matters of that nature, and the father’s position, at least at that time, with regard to orders in respect of final parenting remained unchanged.
The father’s position even after the mother filed a further amended response in November 2014 did not change, though it was clear that there were regular changes of position by each of the parties in respect of exactly what they proposed or considered was in the best interests of the child, leading up to the final hearing.
In fact, the parties’ positions still remained open even up until the hearing of the application. It was certainly the case however that both of the parties more specifically outlined what they proposed in relation to parenting arrangements in a further amended initiating application and a further amended response filed respectively on 18 January 2016 and 2 February 2016.
The orders proposed by the father as contained within the further amended initiating application of 18 January 2016 were in these terms:
1. That the parents have equal shared parental responsibility for the major long-term issues of the child [X] born 2013, including, but not limited to, issues concerning:
a. [X]’s education (both current and future);
b. [X]’s religious and cultural upbringing;
c. [X]’s health;
d. [X]’s name;
e. Changes to [X]’s living arrangements that make it significantly more difficult for [X] to spend time with a parent.
2. The parents are to consult with each other about decision to be made in the exercise of their equal shared parental responsibility as follows:
a. They are to inform the other parent of the decision proposed to be made;
b. They are to consult with each other on terms that they agree;
c. They are to make a genuine effort to come to a joint decision; and
d. In the event that the parents are unable to reach an agreement, the parties will attend mediation through Centacare, or such other mediation service provider as agreed where such service is not offered by Centacare as soon as possible in an effort to resolve any differences.
3. That each parent shall be responsible for decisions concerning [X]’s day to day care, welfare and development when [X] is living with or spending time with that parent.
Parenting arrangements for [X]:
4. That [X] live with the Mother in Town 1 and spend time with the Father as agreed between the parties, but failing agreement as follows:
a. Within the first month of the date of these Orders – for 3 full days and 2 nights with the Father to collect the child at 9.00am and return her to the Mother at 5.00pm with changeover to occur at Brisbane Airport;
b. Within the second month of the date of these Orders – for 4 full days and 3 nights with the Father to collect the child at 9.00am and return her to the Mother at 5.00pm with changeover to occur at Brisbane Airport; and
c. Within the third month of the date of these Orders and until [X] commences school – for 5 full days and 4 nights per month with the Father to collect the child at 9.00am and return her to the Mother at 5.00pm with changeover to occur at Brisbane Airport with the Father’s time to include Christmas Day in even years and Easter Sunday in odd years.
School Holidays:
5. Upon the child commencing school, the parties will spend time with [X] as agreed, but failing agreement, during gazetted school holidays as follows:
a. In odd numbered years for the first half of the gazetted March/April, June/July and September/October school holidays with the Father;
b. In odd numbered years for the second half of the gazetted March/April, June/July and September/October school holidays with the Mother;
c. In even numbered years for the second half of the gazetted March/April, June/July and September/October school holidays with the Father;
d. In even numbered years for the first half of the gazetted March/April, June/July and September/October school holidays with the Mother;
e. In odd numbered years for the first half of the gazetted Christmas school holidays with the Father;
f. In odd numbered years for the second half of the gazetted Christmas school holidays with the Mother;
g. In even numbered years for the second half of the gazetted Christmas school holidays with the Father;
h. In even numbered years for the first half of the gazetted Christmas school holidays with the Mother;
6. All handovers are to occur at Brisbane Airport unless otherwise agreed between the parents in writing.
Special Occasions:
7. That the parents spend time with [X] on special occasions as agreed in writing, but failing agreement as follows:
a. Should the child not be in the care of the Father on Father’s Day, then the Father is to spend that weekend with the child (including Father’s Day) provided that 2 weeks prior written notice is given;
b. Should the child not be in the care of the Mother on Mother’s Day, then the Mother is to spend that weekend with the child;
c. In odd years the child is to spend her Birthday with the Mother;
d. In even years the child is to spend her Birthday with the Father provided that 2 weeks prior written notice is given.
8. Whilst in the care of the other party for special occasions, [X] will be available for FaceTime or other reasonable forms of electronic communication at any reasonable times.
Non-denigration
9. That neither parent will denigrate the other parent or their family members in front of or in the hearing of the child, or allow another to do so.
Reports/Medical Issues
10. This Order authorises any school/s attended by [X] to provide each parent, at the expense of that parent, copies of all school reports, school photographs and any other school-related correspondence or information usually provided to parents.
11. This Order authorises any medical or allied health practitioner/s attended by [X] to provide to each parent, at the expense of that parent, copies of all medical reports, correspondence and any other information usually provided to parents.
12. Each party is entitled to attend at the child’s day-care, pre-school, preparatory school, school, and other institutions or organisations providing extra-curricular education or activities subject only to the policies of the relevant institution or body.
13. For the purpose of events and activities generally attended by parents, including, without limitation, parent-teacher interviews, sports days, concerts and class productions, award and other ceremonies and like events, the following applies:
a. Each party may communicate with the child during such attendances; and
b. Each party observes all protocols, policies or requests by the relevant institution from time to time in relation to the attendance of parents at such events and activities.
Travel Expenses:
14. The Mother be solely responsible for all travel costs associated with the child’s travel between Town 1 and Brisbane Domestic Airport.
15. That until the child commences school, the Father be solely responsible for all costs associated with the child’s travel to and from Town 2.
16. That upon the child commencing school, the parties share in the costs of the child’s travel to and from Town 2 during the gazetted school holidays including Christmas holidays.
17. The Father be solely responsible for all costs associated with all other travel of the child between Town 2 and Brisbane Domestic Airport which are not during the gazetted school holidays.
Child’s Surname
18. The child is to be referred to by her surname WARNER and in respect of any school enrolment, school records, medical and hospital records, Centrelink and Medicare records and any applicable Commonwealth and State Government records, the Mother and Father are to refer to the child by the surname WARNER.
The mother’s amended response, detailing proposals in relation to parenting were in these terms:
1. That the Respondent Mother shall have sole parental responsibility in relation to the child [X] born 2013.
2. That the Respondent Mother shall be solely responsible for making all decisions about major long-term issues in relation to the child.
3. That the parties are not required to consult the other when making decisions while the child is in their care under this Order about issues that are not major long-term issues.
Time with the Parents
4. That the child shall live with the Mother in the Town 1 area.
5. That the child shall spend time and communicate with the Father at all times as may be agreed, but failing agreement, as follows:
5.1 From the date of making of final Orders until the child starts school the Father shall spend time with the child in Town 1 once per calendar month as follows:
(i) From 9.00am on Friday until 5.00pm that same day;
(ii) From 9.00am on Saturday until 5.00pm on Sunday;
With the Father to be responsible for the collection and return of the child to the Mother’s care.
5.2 From the date of making of final Orders until the child starts school the Mother shall accompany the child to Town 2 once every six months (inclusive of special occasions) to enable the Father to spend time with the child as follows:
(i) From 9.00am on Friday until 5.00pm that same day;
(ii) From 9.00am on Saturday until 5.00pm on Sunday;
With the Father to be responsible for the collection and return of the child to the Mother’s care.
5.3 That as from and after the time the child commences school the Father shall spend time with the child in Town 1 from before school at 8.00am on Friday until 5.00pm on Sunday each alternate weekend, with the Father to be responsible for delivering the child to (and collecting her from) school on the Friday.
5.4 That the parties shall spend time with the child as agreed in writing for special occasions but if no agreement can be reached then as follows:
(i) Until the child is eight years of age, in even numbered years the Father shall spend Christmas with the child as follows:
(a) The Father shall collect the child from the Mother for three days leading up to Christmas at 9.00am and return her at 5.00pm each day to the Mother; and
(b) The Father shall collect the child on Christmas day at 9.00am and return her on Boxing Day at 5.00pm.
(ii) Until the child is eight years of age, in odd numbered years the Mother shall spend Christmas with the child.
(iii) Until the child is eight years of age, in odd numbered years the Father shall spend Easter with the child as follows:
(a) The Father shall collect the child from the Mother on Good Friday at 9.00am and return her to the Mother at 5.00pm; and
(b) The Father shall collect the child from the Mother on Easter Sunday at 9.00am and return her to the Mother on Easter Sunday at 5.00pm.
(iv) Until the child is eight years of age, in even numbered years the Mother shall spend Easter with the child.
(v) Should the child not be in the care of the Father on Father’s Day, then the Father is to spend that weekend (9.00am Saturday to 5.00pm Sunday), with the child provided that 2 weeks prior written notice is given.
(vi) Should the child not otherwise be in the care of the Mother on Mother’s Day, then the Mother is to spend that weekend with the child.
(vii) In odd numbered years the child is to spend her Birthday with the Mother.
(viii) In even numbered years the child is to spend her Birthday with the Father provided that 4 weeks prior written notice is given.
(ix) Whilst in the care of the other party for special occasions the child will be available for FaceTime or any other reasonable forms of electronic communication at any and all reasonable times.
5.5 As from and after the child turning eight years of age, the child will spend time and communicate with the Father as follows:
(i) In odd numbered years for the first half of gazetted March/April, June/July and September/October school holidays;
(ii) In even numbered years for the second half of gazetted March/April, June/July and September/October school holidays;
(iii) In even numbered years for the first half of the gazetted Christmas school holidays and in odd numbered years for the second half of the gazetted Christmas school holidays.
(iv) At all other times during the gazetted school holidays the child shall remain in the Mother’s care.
6. That the Father pay for the child’s and the Mother’s travel and associated costs to and from Town 2 until the child turns eight years of age.
7. That the parties shall share in flight costs once the child turns eight and commences school holiday visits.
8. That the child shall not fly unaccompanied until such time as the parties agree to any other arrangement.
9. That neither parent will denigrate the other parent or their family members in front of or in the presence and hearing of the child, or allow another person to do so.
10. That this Order authorises any school/s attended by the child to provide each parent, at the expense of that parent, copies of school reports, school photographs and any other school-related correspondence or information usually provided to parents.
11. That this Order authorises any medical or allied health practitioner/s attended by the child to provide to each parent, at the expense of that parent, copies of all medical reports, correspondence and any other information usually provided to parents.
12. That each party is entitled to attend at the child’s day-care, pre-school, school, and other institutions or organisations providing extra-curricular education or activities subject only to the policies of the relevant institution or body.
13. That the child shall communicate with the Father via telecommunication not less than twice per calendar week times as agreed between the parties.
14. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
15. That the parties encourage and not undermine each child’s relationship with the other party.
Dispute Resolution
16. That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
16.1 The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner;
16.2 The parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
16.3 They shall pay the costs of the Family Dispute Resolution Practitioner equally;
16.4 In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
16.5 The Father shall choose one (1) of the listed practitioners with seven (7) days of the receipt of the list; and
16.6 If the Father fails to choose then the Mother may choose.
As I indicated however, the position of both of the parties was, to a significant degree, quite fluid, and that should particularly be noted in light of the fact that the father’s amended initiating application filed on 18 January 2016 proposed a progression in respect of [X] spending time with her father for three full days and two nights in the first month, progressing to four full days and three nights in the second month, and thereafter until [X] commenced school, for five full days and four nights commencing in the third month, following the making of the orders.
The father’s proposal, as detailed in final submissions, however, was that the time to be spent pursuant to order 4(a) of the orders detailed in the amended application, continue to be handovers and time spent in Town 1 for no more than three days and two nights until July 2016. Thereafter, it was proposed that for a further period of about six months, from July until December 2016 that the progression be to four days and three nights, with handovers occurring at the airport in Brisbane and that such time be spent in Town 2.
It was then noted that the final progression would be to five days and four nights after 1 January 2017 and that there then be an inclusion of the opportunity to spend time for five days and four nights, upon [X] commencing school.
It was, however, a little confusing exactly as to what might be proposed in the period between January 2017 and the commencement of school, specifically in regard to any further increases in time, but in any event it was clear that the father had, to some extent, taken on board the concerns that were expressed by the family report writer, Mr C, relating to a progression being too quick and being something that was not necessarily reflective of the best interests and the welfare of the child. I shall obviously come to the evidence of the family report writer a little later in these reasons.
THE EVIDENCE: THE PARTIES
During the conduct of the matter I had the opportunity to consider the extensive written evidence that was provided by each of the parties, but also particularly to hear the oral evidence, including cross-examination of each of the parties in the witness box.
I would note at the very commencement of these reasons that both the mother and the father impressed me, though for perhaps different reasons. It was clear that both loved their little girl dearly and, as was commented upon by the report writer, it was clear that [X] was closely attached to both of her parents though, perhaps understandably in light of the circumstances that currently exist, was more significantly attached and reliant upon her mother, for the meeting of her particular needs, both emotional and physical.
To some extent, the father himself corroborated that, noting that there were occasions where he had called upon the mother for some assistance in relation to the parenting of the child when [X] was in his care. There was some dispute between the parties as to the number of times that calls were made by the father to the mother for assistance, but it certainly is clear that there were at least on occasion, instances where the father quite properly, it would seem, recognising the need to avoid distress for the child, called upon the mother for assistance.
The father in particular noted that the occasions that he specifically recalled there being difficulties and therefore a need for him to call for the assistance of the mother, included the first occasion that he spent overnight time in Town 1 with [X], and it was a situation where the child awoke startled in a hotel foyer, and rather than allow the child to be distressed because of the confusion that perhaps had arisen, he contacted the mother.
The father’s position, however, was to say the child was well settled by the time the mother arrived, but, recognising the importance of [X]’s best interests being to the fore, he made arrangements to hand the child back to the mother at that time, rather than to prolong his time with her, though it was no doubt something that he would have enjoyed.
On the second occasion acknowledged by the father, he indicated that during the Easter holiday period in 2015, when he again took the opportunity to spend time with [X], he was spending time in the Town 1 area, residing in a caravan, and it was a rainy day, and [X] became upset as it was a confined situation and a circumstance where he was unable to more completely entertain her, because he could not get out of the caravan. At that time he indicated that he called the mother about 45 minutes earlier than would normally be the handover, and effected a return of the child to the mother, again to preclude any long term distress to the child.
The father indicated that there were other occasions where he had communicated with the mother, but not out of a situation of being unable to deal with any of the circumstances that might have arisen with regard to the child, but rather to keep the mother informed of situations such as [X] feeling a little unwell, and wanting the mother to be aware of that.
The father was adamant that he was able to deal with circumstances in relation to the parenting of the child, though in cross-examination he was challenged about the number of times that he called upon the mother to provide him with assistance. The father certainly acknowledged that there were numerous occasions where he interacted with the mother and [X], but indicated repeatedly that that was not a situation that arose out of a need expressed by him to have the assistance of the mother, but rather occasions where he had tried to have all three of the family members, he, the mother, and [X], together.
He indicated early in his cross-examination that he sought to facilitate that as much as he could because, as he noted, “When [X] is with both of us she is very happy and enjoys the time”. The father went on specifically to indicate that he would love more time for he and the mother and [X] to spend together, and in fact became, at least passingly, a little upset at what appears to be some sadness arising from the fact that such a situation is not able to exist.
It was noteworthy that Mr C commented upon that in his cross‑examination, in relation to the family report that was prepared in respect of this matter, but noted that whilst on the first occasion that a report was prepared, the impression that Mr C gained was that the father wanted to salvage his relationship with the mother, as well as to foster his relationship with [X], but noted that on the second occasion that a report was prepared, that being the report which issued in January 2016, Mr C considered that the father had come to terms with the break in the relationship and that there was not, as he suggested, any strong unrealistic expectations in respect of what might or might not be the prospects of re-establishing the relationship with the mother.
The father, as I indicated, was cross-examined about the number of times that he sought assistance from the mother more directly than just simply providing information with regard to the child and how she was progressing or, perhaps more specifically, on occasions when there was something to report, such as the child not being well. The father denied that there were as many occasions as were detailed by counsel for the mother in cross-examination.
However, I accept that in regard to the record keeping that the mother has no doubt entered into, in relation to these proceedings, I am more inclined to the view that there have been more occasions where the father has called upon the assistance of the mother, though it may certainly have been interpreted by the mother as a call for help rather than, as the father suggested, a call simply advising of circumstances with regard to the child.
I would certainly find, however, that the father was able to generally meet the needs of this little girl, but rather, being particularly attuned to ensuring that she was not overly distressed, sought to involve the mother, rather than to allow any periods of distress to continue on longer than was necessary.
The father impressed me as a parent genuinely wanting to be as involved as he possibly could be in the life of the child, noting that the circumstances that now existed were circumstances where there was clearly a difficulty that arose, as a result of the parents living so far apart.
The father’s own amended initiating application filed 18 January 2016 recognised that appropriate arrangements would be to include that [X] live with her mother in Town 1 and spend time with the father, but the dispute really centred upon considerations of the progression in relation to how that time should be spent, and how quickly the child could progress to more significant periods of time, in relation to spending time with the father, particularly when not in the proximity of the mother.
There was significant cross-examination of the father about his expectations and hopes with regard to the opportunity for time to be spent by him with [X] and how quickly that should progress, and it was clear that the father’s motivations, though he said they were exclusively stemming from considerations of the best interests of the child and the need to foster and develop a relationship with him, also related to his understandable desire to spend as much time as possible, with the child.
I did gain the distinct impression however, that at least in part, the father’s desire for more time with the child was a reflection of his hopes and expectations, rather than a reflection of what might be a real appreciation of what was in the best interests of the child, particularly being mindful of the significant distances that would be travelled.
It is noteworthy that in cross-examination Mr C specifically spoke of some concerns that he had, with regard to significant travel for periods of only say four days and three nights, which would involve [X] being required within a very short span of time to travel significantly and, at least from the perspective of Mr C, that would be a matter of some particular concern with regard to the child.
It was for that reason that Mr C’s very firm position in relation to the matter was that there should not be more time spent in Town 2 until there had been significant opportunity for time to be spent by the father in Town 1 with the child and for there to be the further development of the father’s opportunities to spend time with the child.
It was also the case that whilst both the mother and the father initially proposed that there should be arrangements made for equal shared parental responsibility, the mother’s position had changed by the time the matter came on for trial and her proposal was now to the effect that she should have sole parental responsibility for decisions to be made in relation to major long term issues.
It was, with respect, a little troubling that the mother’s proposals there did not even include a suggestion that there might be the opportunity taken by her to consult with the father and to consider his views in relation to any such major long term decisions that were required to be made. It was an issue of some concern for the father and particularly flew in the face of what he suggested were improvements in communications between he and the mother.
He was questioned about what he assessed as improvements in communication, particularly in light of the fact that more than two years had passed since some discussions were instituted in relation to arrangements with regard to the baptism of [X], and yet there still remained no agreement, in relation to what should occur.
From the mother’s perspective it was certainly contended that the father was unable or unwilling to negotiate or discuss issues with her in relation to the matter, though again the overriding perception that I gained in relation to each of these parents was that they both very genuinely and for very proper reasons considered that what they proposed with regard to the parenting of [X] was more appropriate.
If you like, the father’s position was to say that he had already conceded much, particularly noting that [X] would live with the mother in Town 1, and that therefore having missed, for example, her first words and her first steps, he should have the opportunity, particularly with regard to the child’s baptism, for it to be in the locality in which he resided and therefore having the chance to afford members of his family the opportunity to be closely involved in the special occasion of the child’s baptism.
The mother’s perspective in relation to that was to say that it reflected more upon the father’s wishes than what might or might not be in the best interests of the child. I shall come to that particular aspect of the matter and in fact to what I consider to be necessary orders with regard to the baptism of the child in due course, but would certainly suggest that my assessment in relation to the communication with regard to the baptism is that each is focusing far more on what they consider to be appropriate for them rather than either appropriately considering what is in the best interests of the child.
I say that particularly in the sense, that the mother suggesting that the baptism should occur in the same locality as that in which she lives is exactly arising from the same considerations as the father wanting the baptism in Town 2, it being the case that the mother’s family and others significant to her would be in the Town 1 area rather than in the Town 2 area.
The fact is that this little girl will have little preference in relation to what should or should not occur in relation to her baptism, and it is far more a parental consideration than a child focused consideration.
The father was asked about the exchange of information between he and the mother in relation to various other issues, including what must have been a very concerning matter for both of them relating to whether or not [X] was suffering from a heart murmur and whether there would be the possibility of some sort of surgery required.
The father indicated that when trying to discuss the issue with the mother, the mother was hostile in discussions with him and in fact initially would not even advise the name of the specialist who had been seen. He certainly acknowledged that in due course he and the mother were able to engage in discussions with the specialist and fortunately it was the case that surgical intervention was not necessary.
It was noteworthy, I thought, however, in the cross-examination directed to the father in relation to this matter, when it was suggested that they were unable to reach any resolution with regard to arrangements in relation to parenting, and whether there was an argument that ensued about the provision of information with regard to the specialist involved, that the father indicated that there was not an argument. In particular, he emphasised that whilst the mother had become adamant that he not make a big thing out of the situation, he had not engaged in heated exchange with her, though he had concerns. He said, that he did not want to jeopardise the lines of communication that were open, even if they were only limited, because, as he indicated, he realised that the mother was the only go between or was the only means by which he could facilitate his relationship with [X], and that therefore he did not want to upset the mother.
I gained the distinct impression that that was a genuine concern on the part of the father, and that he very much expected that if the mother felt that he was seeking to impose himself too much upon her, that his opportunities for interaction with the child, including even communication, would be limited.
It was noteworthy that the father was specifically cross-examined about the mother’s expressed concern that he attempted to impose his will upon her. The father indicated that he had read that in the mother’s material, and when asked whether he thought that that was what the mother’s actual attitude was he answered, I thought, rather interestingly not in respect of whether that was her belief but rather in the following terms:
I believe I am entitled to an opinion.
When asked whether the mother holding a view that the father was seeking to impose his will upon her would stand in the way of agreement being reached, he acknowledged that it might be a consideration, but that he was unable to say specifically what he thought.
He did note, however, that to some extent his perception, perhaps similar to the mother’s, was that she sought to impose her will upon him and it left them in the difficult situation of each having a view, each believing that they were being pushed by the other party and, of course, leaving them in the situation where, to a significant degree, they were unable to reach any ultimate outcome.
The father impressed me as being genuinely determined to be fully involved in the life of the child. I must say, however, that I gained the impression that he was not as comfortable or as competent as he would suggest in relation to providing for and meeting the needs of [X], though I have no doubt that over time his skills as a parent and his comfort in the role will develop and improve.
More particularly, however, I am concerned that the father’s determination to involve himself in the life of the child, which is significant and important, is much more directed from the perspective of the father being able to achieve what he wants in relation to his relationship with the child, rather than being mindful of [X]’s apparent attachment to her mother and, as identified by Mr C, the obvious anxiety that she currently experiences, if separated for significant periods from her mother or, at the very least, was unable to receive the support of her mother in times of distress.
The father’s hopes and expectations in relation to this matter were therefore understandable but, in my assessment, not entirely child focused. It was certainly pleasing though, to see that the father’s position, after considering the evidence of Mr C was to recognise that more significant periods were necessary to develop the opportunities for his relationship with [X], and for her to become more comfortable in his presence and, of course, correspondingly, not to experience anxiety as a result of separation from the mother.
Insofar as the mother was concerned, as indicated, I have no doubt that she loves this little girl and that all that she proposes in relation to the parenting of the child is as a result of what she considers to be in the best interests of the child. It was the case, however, that I did have some concerns as to the full extent of the mother’s determination to facilitate and foster the relationship with the father.
In particular, it was concerning that the mother’s proposals with regard to the father’s opportunity to spend time with the child, had on the face of it, an apparent reduction in the overnight time that might have initially been spent by the father with the child. In particular, it was emphasised by counsel for the father in cross‑examination of the mother, that to suggest reducing the time that was already in place as being a manner or a means by which the child’s relationship with the father could be fostered and developed towards longer periods separated from the mother, flew in the face of what would seem a sensible and rational approach, with regard to developing over time the relationship with the father.
There are also certain concerns that arise from the suggestion that the mother would exaggerate negative effects upon [X] of time spent with the father. The mother was cross-examined about statements contained within her trial affidavit to the effect that [X], after spending time with her father became erratic in her behaviours and that she would lash out, both slapping and biting. The mother was adamant that this was the case but more particularly was adamant that when this had occurred, it was the first occasion that it had occurred after overnight time periods had been spent.
It was only when she was taken to correspondence of 14 October 2014, when the mother wrote to the father, that she acknowledged that [X] had then lashed out at her and had both smacked her and attempted to bite her. The mother acknowledged that that had been said, and sought to explain that what had occurred after spending time with the father was different to what occurred in or about October 2014, in that the child was lashing out and that there was some suggestion that she knew what she was doing.
I was somewhat troubled with that explanation and the readiness of the mother to adopt a position of suggesting that the concerns that arose, arose as a result of the time spent with the father, rather than there simply being a recognition, that as the parties were apart and there was a need to facilitate different arrangements, so as to ensure that [X] had the opportunity for a relationship with both of her parents, there would be periods of upheaval.
To suggest that the erratic behaviours, and examples of what the mother suggested were indicators of separation anxiety, stemmed entirely from spending time with the father was, I thought, unreasonable in all the circumstances, and failed to recognise that there would be difficulties for the child, no matter what the circumstances, as her opportunity for time with her father grew and developed.
The mother suggested, when cross-examined more in relation to these issues, that the behaviours of the child, including what she described as, “manic play”, were not necessarily indicators of disturbance as a result of spending time with the father, but perhaps were more indicators of the child not having stability in her life. Again, I was to some extent concerned that the mother was looking to limit the father’s opportunities for a relationship with the child, by suggesting that there were indicators of distress being experienced by the child.
That is not to say, however, that there were not clear indicators of a need to progress slowly, in relation to the development of opportunities for the child to spend time with the father, it being clear that Mr C certainly noted some unsettled behaviours on the part of the child, particularly, for example, on the second occasion that he attended to interview the father. But, by the same token, it was troubling that the mother’s indications of, “manic play”, were as a result of what she said were her observations of different behaviours on the part of other children, and that separation anxiety was indicated by the child’s lack of calmness, when re-establishing contact with her.
The mother no doubt was concerned for the child and for the child’s best interests, and to that end I accept that the mother’s proposals with regard to time being developed and how it should be developed with the father were a reflection of what she considered to be in the best interests of the child.
However, I also unfortunately gained the impression that the mother was quick to see, “manic play”, a lack of calmness or differences in behaviours before and after the child spent time with the father, as being reflections upon the father, rather than simply a reflection upon the need for both parents to work determinedly toward establishing a positive and beneficial relationship between [X] and each of her parents.
The mother proposed, that there should be a very lengthy period of development of time with the father, before there were any real opportunities for the father to spend time without the mother in close proximity in Town 2, as well as for there to be significant limitations in relation to the father’s opportunities for time to be spent with the child, even after [X] had commenced school. The mother indicated that she was motivated only by what she considered to be in the child’s best interests.
It is noteworthy, however, that both of the parents take a stance in relation to various issues, including particularly the issue of baptism, based upon what they want, rather than what might be appropriate in relation to the parenting of the best interests of the child. The mother suggested that she felt imposed upon by the father, and that he would not listen to her views or consider her perspective, in relation to the matter.
Of course, the father similarly indicated that he had concerns, that if he pressed the mother too hard, that it would be a situation that would arise where he would be precluded from the opportunity of interaction or time with the child.
My assessment in relation to both of these parents is that both would benefit obviously from a post separation parenting program or programs, and in particular from any assistance that might be provided, in relation to enabling them to better deal with the decision‑making process, which obviously must be looked at as between the two of them.
Both parents love this little girl. Both parents want what they consider to be best for the child, but both parents have difficulties in dealing with each other and, in particular from the father’s perspective, in dealing with the breakdown in the relationship and the consequential loss of the expectation of a family unit, comprised of the mother, the father and [X].
Similarly, the mother is clearly experiencing difficulties as a result of there being constraints upon her, in respect of exactly how she wants to live her life, including the parenting of [X], as a result of the father’s determination to continue as great an involvement in the life of the child as is possible.
It is, of course, what gives rise to the obvious need for there to be some ultimate determination in respect of what arrangements should be made, particularly with regard to the time to be spent by the father with the child and the progression of any stages which might increase the time that the father spends with the child.
THE EVDIENCE: THE FAMILY REPORT
To that end, it was obviously important then that there be consideration of the family reports which were prepared by Mr C. Two reports were prepared, the first is dated 6 November 2014 and the second, an updated family report, is dated 21 January 2016. Mr C was required for cross-examination in relation to the reports, though to a significant degree, cross-examination centred far more on the matters identified in the second report, rather than the first of the reports.
It is noteworthy, however, that in the first report under the heading, “Conclusion”, at paragraph 53 Mr C says the following:
Whilst numerous arguments can be made for the proposals of both parents the outcome of [X] of returning to Town 2, with or without her mother, would, in its negative impact outweigh the likely negative impact of her residing a significant geographical distance from her father. In this situation it is my view that the emotional health of Ms Warner is the determining factor for the future emotional health of [X] and on this basis it would appear to be in her best interests to remain in the care of her mother in the Town 1 district where Ms Warner is able to utilise the support that she clearly needs and is not available to her in Town 2.
Mr C then goes on to discuss what interim arrangements could appropriately be put in place with regard to the parenting of the child and, in particular, noted at paragraph 56 the following:
As [X] gets older and Mr Warner’s parenting skills naturally improve it may be easier for the parents as she will eventually be able to travel and stay with Mr Warner without the need for Ms Warner to be in close proximity.
It is certainly clear that the progression between November 2014 and January 2016 has not been as quick as the father would have hoped, and it was clearly indicated by Mr C that there were issues, particularly relevant to this little girl, rather than to the general population of two and a half year old children, that needed to be addressed, in relation to what arrangements should be made.
The second report, notes that there are still a number of competing issues that need to be addressed. In particular, there is, of course, the geographic consideration that arises as a result of the father living in Town 2 and the mother living in Town 1 with the child, and the impediment that this places upon the father’s ability to form the close relationship, that he wishes to have with [X].
Balanced against that, is the fact that the mother still opined, that the father had to gain confidence and competence, in his ability to care for and provide for [X], so as to enable her to be, “secure in his care”, and that until such time as that can occur, [X] still required the mother’s presence in the locality, in order to intervene should the child become distressed.
More particularly, it was noted when considering those competing perspectives in relation to this matter, that Mr C indicated that both parents recognised that:
[X] appears to be in a period of development whereby she exhibits clear signs of separation anxiety and when upset vocalises and demonstrates the need for her mother to intervene.
It is interesting that that is noted in relation to this matter, because the father’s perspective, particularly when in the witness box was that it was not the case, and when Mr C was in the witness box, the father’s counsel challenged him as to exactly whether the father had suggested that that was the case. Mr C’s observations and evidence in that regard was also directly challenged.
Mr C noted particularly, that at the time of the second interviews being conducted [X] was clinging to the father and indicating strongly that she did not wish to be put down. It was also noteworthy that Mr C identified the father as being understandably flustered and experiencing some difficulties in relation to settling the child.
That is not to suggest that the father would generally not be able to appropriately cope and deal with such issues, but of course it does reflect the perhaps more acute needs and requirements of this little girl than might generally otherwise be the case. It was noteworthy also, and Mr C was not challenged in relation to it, that he noted at paragraph 20 of the second report:
Mr Warner emphasised that he believed he required the support of his family for when he did care for [X] and also indicated that he believed he was acquiring the necessary parenting skills as time progressed.
It is clear that the father still does require some assistance and on occasion, still calls upon the mother when she is in the same locality, to provide some specific aid for him. Mr C in his evaluation noted that in his view [X] would require a, “Slower progression than that suggested by Mr Warner”. He went on at paragraph 31 of the updated report to note:
At [X]’s age and stage of development separation anxiety is common and it is not surprising that occasionally it flares up for [X] given the circumstances of her care. Ms Warner indicated that on the first few visits [X] was uncomfortable and as with the incident in Town 2, she and Mr Warner appear to have dealt with the situation appropriately.
[X]’s anxieties, however, do indicate that a rush to increase the overnights would be premature and would create more stress for her and also she appears to continue to require the close presence of Ms Warner when spending overnight time with her father. Given that [X] will start prep in 2018 a slow progression of increasing Mr Warner’s time would be effective and appropriate and result in him being in a position in 2018 to have independent block time.
Mr C clearly recognises the need for a gradual progression and, in particular, it would appear clear, suggests a progression somewhere between the accelerated progression suggested by the father, even inclusive of the change proposed during submissions, in relation to this matter, and the very slow progression that appears to be suggested by the mother.
Both the mother and the father, through their respective counsel, sought to challenge the position of Mr C in relation to this matter, though my impression was that Mr C remained quite firm, and understandably so, in his proposals with regard to the moving forward of the matter.
He acknowledged, for example, that the three major issues required to be considered by the parties and, of course, also by the court were:
·The rate of progression of more overnight periods;
·Where those overnight blocks should be spent; and
·Whether there was any requirement with regard to the mother being in close proximity.
Mr C indicated that his own rule of thumb with regard to overnights, though it was simply a personal perspective, was that overnights with the parent who was not the primary carer, should occur from about the time that a child turned three and then gradually build up. However, he recognised that as [X] was already spending some overnight periods with her father, that, though there were some indicators or signs of separation anxiety and insecurities, it would not be beneficial for the child to revert to no overnights or significant limitations, in relation to overnight periods.
Mr C emphasised that his concerns were not related to the father’s wish for an involvement and relationship with the child, but rather stemmed from his observations on two occasions, that in times of particular stress for the child, the father was unable to deal with the situation and the child became quickly more distressed.
His assessment in relation to that particularly, was that it was important to stretch out, as he described it, the time with regard to progression from one stage of overnight time to the next, and that in his assessment, at least initially and it would seem that that initial period would be for perhaps a year or more, time should be primarily if not exclusively spent in Town 1, with the father having more frequent opportunity to spend short, sharp periods with the child.
He opined that multiple overnights coming about too quickly were not, in his opinion, arrangements which would be in the best interests of [X], but perhaps more a focus on the interests of the father. Mr C was adamant, that an increase or progression in time spent with the father, including the length of any block periods of time, was an essential consideration but that, as he put it, “It makes professional sense to increase block time with [X] over time”.
Mr C recognised quite clearly, however, that attachments between [X] and her father were developing, and he certainly indicated that the attachment was growing and that it was clearly happening, though perhaps not at the pace that the father had hoped would be the case.
Insofar as the question of whether the mother needed to be in the same locality as the child, particularly if the child became distressed, Mr C was asked whether he thought, at the present time at least, the mother’s presence was a necessary fallback if [X] became anxious or upset, and he indicated that in the, “short term”, it was appropriate.
However, when asked what he would consider the short term to mean, he indicated that it was difficult to be specific, and that it would depend entirely upon how [X] progressed in her relationship with her father, and with others significant in her life. And of course, the assessment of the mother and the father would unfortunately no doubt be different. Mr C emphasised on a number of occasions however, that he saw no need for speed or for only short periods of time, between the development of the block periods, that the father might spend with the child.
More particularly, he emphasised the importance of the father travelling to spend time with [X], it being the case that there would not only be the familiar surrounds that would be known by the child, but also the opportunity for the father to fully involve himself in the life of the child, including participating, as appropriate, in day care and day care activities, so that as the relationship developed between [X] and her father. There would also then be a clear understanding from [X]’s perspective, as well as from the father’s, of what constituted important or significant considerations, in their lives.
Mr C was asked by counsel for the mother, about the mother’s proposed progression toward time being spent by the father with the child. In particular, he was asked about the progression from one or two nights to four nights, to five nights, to seven nights, to nine nights during holiday periods and the like. He indicated the progression was an appropriate one, though he certainly was not willing to concede that the mother’s proposed progression, which continued until [X] was eight years of age, was the timeframe that should properly be considered, in relation to how the time should develop.
Mr C was specifically asked about the father’s proposal, with regard to monthly opportunities to spend time with [X] in Town 2 of five days and four night’s duration, and he commented that any arrangements for time in Town 2, before a five day block and a four night period during that block would be disruptive to the child. In particular, he emphasised that the amount of travelling that would be involved in spending those few days, particularly if it was only three days and two nights or four days and three nights, in Town 2, would be disruptive and unsettling for the child, and would not be appropriate.
He did specifically comment though, that until more significant block periods were able to be properly facilitated, to meet the best interests of the child his assessment was that time spent by the father with [X] in Town 1 would be far more beneficial to [X]. I must say that Mr C’s assessment in relation to this little girl and to the specific needs to be addressed accord with my own assessment generally, in relation to this matter.
It is not uncommon to see circumstances, where the parent who is the primary carer of the child, is reluctant to see the progression of time being spent quickly developed, whilst the parent who does not have the child primarily in their care wants to move more quickly. In this instance, the suggestions by Mr C, reflect an appropriate consideration of the perspectives of both parties.
Before moving on from Mr C and his suggestions and opinions with regard to the future arrangements in relation to parenting, it is noteworthy that he was specifically questioned by counsel for the mother about the issue of the baptism. He was asked particularly, whether there appeared to be a sense of entitlement on the part of the father arising from the fact that he missed the child’s first steps and first words such that he should have the opportunity for the child’s baptism to be conducted in Town 2, perhaps as compensation.
Rather than responding in the positive to that, as I think the mother and her legal representatives expected and suggesting that there did appear to be a self‑centred or lacking in insight position taken by the father, he commented with words to the effect, “The father still grieves the loss of the ideal of the mother, father and [X] in the one home”. He went on to note, however, that it was not a selfish attitude taken by the father, but rather one of a genuine feeling of loss and the position with regard to the baptism and the reasons for the father wanting the baptism to be in his locality, highlights what he feels he has lost. Interestingly, and I assess significantly, it was also noted by Mr C, “A baptism in Town 2 is not an outrageous request”.
I was generally assisted by Mr C’s assessments in relation to this matter. I, in particular, would find that his consideration of the arrangements as proposed by each of the parties was, to a very real degree, a reflection of what Mr C considered to be appropriate in relation to this little girl, and was of particular assistance with regard to the ultimate determination of what orders should be put into place.
THE LAW:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
DISCUSSION:
In order to reach a determination therefore the “logical and practical approach” as suggested in Heath v Hemming (No 2) (supra) needs to be followed as well as meeting the various statutory imperatives set out in the act. The proposals of the parties have been identified at the commencement of these reasons the issues in dispute noted particularly by Mr C related to the issue of parental responsibility, the rate of progression to greater overnight periods with the father, where those overnight periods should be spent and whether the mother needed to be in close proximity to the child during time spent with the father. There were no other suggestions made as to what might or might not be the orders to be put in place.
Accordingly, the next step is to undertake a consideration of the various matters set out in section 60CC (2), (2A) & (3) being mindful of the fact that they are reflective of the objects and principals set out in Section 60B (1) & (2). Section 60CC (2), (2A) & (3) are in these terms:
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The considerations interestingly are set out in two parts the primary and additional considerations. It is clear however that the primary considerations do not “trump” the additional considerations but rather are set out simply to indicate the need for there to be a balance between the child’s right to a meaningful relationship with both of the child’s parents and the need to ensure that any attempt to foster that meaningful relationship will not give rise to issue of concern in respect of the child’s physical or psychological well-being.
There is clearly no argument that [X] will benefit from a meaningful relationship being fostered and developed with each of her parents, what needs to be considered are the various other issues that are raised by both the mother and the father in respect of how that meaningful relationship can be fostered. There is of course the need to ensure that the child is protected from circumstances that might give rise to physical harm and it is pleasing that there is no suggestion by either parent of a risk of that nature arising in the care of the other parent.
However, there are concerns that each parent raises with regard to the psychological wellbeing of the child. From the father’s perspective there are concerns held that the mother will not appropriately or fully encourage and support the relationship between he and [X], evidenced he suggests by the mothers proposal for an initial reduction in time to be spent with him as well as the very substantial time frame, more than five years before there would be an opportunity for one half of gazetted school holiday periods to be spent with him.
The mother places considerable emphasis on what she says is evidence of separation anxiety displayed by [X] when with the father and not having the opportunity for consistent interaction with the mother, as well as concerns which she says arise from the father’s lack of experience and capacity to deal with issues that might arise in relation to the child.
Neither parent suggests that as a result of the concerns they hold radical changes should be put into effect, but rather each suggests, as identified by Mr C, that a different progression should be made towards the ultimate goal of [X] having a meaningful relationship with both parents and having the opportunity to spend as much time as possible with each parent and in this instance particularly, significant and substantial time with the father.
It is noteworthy that Mr C’s evidence in relation to [X]’s anxieties led him to suggest as he put it “a slower progression” to time spent with the father than was initially suggested in the father’s further amended initiating application. Mr C noted that separation anxiety is common in children of [X]’s age and stage of development and occurs even in situations where a couple are still together. He noted that the circumstances of [X]’s care are such that it is not surprising that separation anxiety can flare up. What it meant however, was that it certainly must be taken into consideration in respect of the orders that are made and the progression toward more significant time being spent with the father. It is also relevant of course, in respect of where the time spent with the father should occur.
The protection of the child from psychological harm therefore needs to be considered even where, as is the case here, neither parent is directly responsible for that harm. There is a fine line to be walked in relation to any orders that should be made and I have no doubt that the position taken by each parent in relation the progression to be made is on that they have considered at length and genuinely believe to be in the best interests of the child.
Mr C seemed to indicate that somewhere between what the father proposed and what the mother proposed was appropriate, he certainly suggested that the father’s progression as suggested was too hasty and failed to appreciate the specific circumstances of this little girl but also noted that the mother’s proposed progression was a time frame too great to be ultimately beneficial to the child or to the parents.
Whilst accepting that any orders made must be put in place in consideration of the particular needs of this little girl, I would also assess that somewhere between the father’s proposals, even those modified ones that were put forward during final submissions and the mother’s long term proposals, lies the best interest arrangements of the child. It is a matter that must be looked at in conjunction with the other evidence that is available and a balance reached that hopefully provides most appropriately for the future needs of the child.
There is not however, a concern that directly gives rise to a need to protect the child but rather a need to ensure that the orders made give [X] the best opportunity to develop her relationship with her father in a comfortable and secure way.
Interestingly, many of the additional considerations are not of great significance in relation to the ultimate determination of this matter. For example, there are no clear views expressed by a child of such tender years as [X] and they are therefore not required to be given specific consideration. Similarly, issues relating to the maturity, sex, lifestyle and background of the child or parents and issues with regard to Aboriginal or Torres Strait island cultural considerations do not arise. Family violence other than in the most passing of ways is similarly not of real impact in relation to the determination of this matter.
Other considerations certainly do need to be addressed, but they are with respect all subservient to the need to ensure that [X]’s particular circumstances are considered in relation to any final arrangements. Accordingly, the nature of [X]’s relationship with each of her parents is significant particularly in light of the primary attachment that she has to her mother balanced against the established but not as secure attachments in place with her father. The primary attachment to the mother is clearly a factor to be considered in respect of the arrangement regarding the development of time to be spent with the father.
Whilst the parties have different views about the involvement of the other parent in [X]’s life and the effects upon them of the other parents involvement, it is clear that both have fully sought to participate in the decision making process and to as much as possible be involved in spending time with and communicating with the child. From the mothers perspective the father’s stance has been one where he seeks to impose his will relating to the child upon the mother, whilst from the father’s perspective, the mother has been reluctant to facilitate his time with the child or to consider his views in relation to decisions to be made with regard to the parenting of the child.
Of particular significance, in relation to the ultimate determination is a consideration of what might be the likely effect of any changes in the child’s circumstances particularly if those changes included greater periods of time where [X] was separate from her mother as well as there being circumstances where the mother might not be in close proximity, if it were necessary to placate or comfort the child.
Ultimately, the best evidence again stems from the two reports prepared by Mr C as well as from his oral evidence. It is the balance that needs to be made between progressing the relationship and the time to be spent with the father too quickly, as opposed to reducing or stagnating the time with the father such that the relationship is not given the opportunity to develop and grow. Mr C’s evidence was that steps needed to be taken slower than those proposed by the father but with a progression to as significant time as is possible in less time than the five plus years suggested by the mother.
Significant also in relation to the ultimate determination are concerns with regard to both geography and finances. It is agreed that the mother and [X] will live in Town 1. The father continues to live in Town 2 and has work that can be accommodated as a result of him living in Town 2. Travel and expense for the father is a significant concern as well as the obvious distress that is caused to the father as result of him not being able to have [X] spend time with him in his locality and of course having easier opportunities for [X] to interact with other members of her extended paternal family.
From the mother’s perspective, concerns of a similar nature relating to geography and finance also arise not only as a result of the expense incurred in travel from Town 1 to Town 2 and the time that is required for that to occur with its consequential effect on the mother’s employability, but also the difficulties that such significant travel has for [X] particularly when it might only be for a period of three or four nights in total per month.
Those concerns can be met; Mr C suggests by limiting the obligations in relation to [X]’s travel to occasions when more significant block periods of time are being spent which would also have the advantage of the father getting to know [X] even be6tter than he already does, in her locality and environment. It would also mean that there would be less of a burden placed on the child in relation to significant travel within a few days as well as reducing the overall expense of travel, because only the father would be required to travel, though I acknowledge that there would also be accommodation expenses incurred.
No matter what orders might be made, travel and expense will be an ongoing concern but one that in my assessment can be met by the parties, especially by the father whilst he remains in the remunerative employment that he currently has.
Considerations arising from the capacity of each of the parents to provide for the emotional and intellectual needs of the child are significant in this matter. As I have already noted, the parent’s different perspectives, give rise to the concerns that they each hold with regard to the other parents capacity to meet one or other of these needs. Each parent holds their view genuinely and as I have already indicated, somewhere between what each parent proposes is hopefully the means by which the child’s best interests can be met.
Each parent certainly has the capacity to meet the day-to-day physical needs of the child and would no doubt be able to meet [X]’s intellectual needs including any necessary educational requirements. It is the longer term concerns in respect of meeting [X]’s emotional needs that is the real subject of this determination. Both hold genuine views as to what is in the best interests of the child but as I have indicated, Mr C’s expertise carries some significant weight particularly when consideration is given to the arrangements to be put in place.
Each parent has an appropriate attitude to the child and to the responsibilities of parenthood. The real tragedy here is that whilst each have an appropriate attitude they each have a different view as to what is in the best interests of the child giving rise to the dispute that currently exists. I would find however, that there is no concern held with regard to each parent’s attitude to the responsibilities of parenting.
The orders that each parent seeks are understandable. As I have indicated, in my assessment, orders that fall somewhere between what each parent proposes are what will be in the best interests of [X] and will enable the father to develop his relationship with the child balanced against the need to be mindful of [X]’s attachments to the mother and anxieties that might stem from that. What is essential in my assessment however, is for there to be settled arrangements, clearly understood by each parent and able in time to be understood by [X] such that she can be comfortable that there are opportunities for time to be spent with each parent knowing that each parent recognises the importance of the other in [X]’s life and of the need to ensure that [X]’s relationship and attachments with both parents is secure.
Final orders are essential in providing that secure and stable arrangement and it would be hoped that when such orders are made it will provide certainty for the parties and therefore less likelihood of any further proceedings being instituted.
I acknowledge that much of what has fallen in these reasons, especially with regard to the discussion, has indicated the lack of any certainty as to what might be the most appropriate arrangement’s to be put in place. To some extent it occurs to me that simply having orders will provide some degree of certainty and will enable the parties and this little girl to move forward. The primary consideration obviously is to ensure that the child’s attachments are fostered and secure and that her emotional well-being will be to the fore. Matters relating to each parties capacity to recognise the importance of that consideration are paramount in ensuring that appropriate orders are made.
I am satisfied that each of these parents has the capacity and the willingness to meet [X]’s needs particularly when there is certainty as to the arrangement’s to be put in place.
Having addressed the various considerations reflective of the objects and principles, it is necessary to consider whether the presumption of equal shared parental responsibility applies or whether the presumption is rebutted as a result of findings made pursuant to the provisions of Section 61DA (2) or (4). I have already noted the fact that there are no issues of concern that would give rise to findings of abuse or family violence. Each party expresses some concern with respect to the other parent’s attitudes and behaviours but I would not asses that there are circumstances which would suggest that the presumption of equal shared parental responsibility is rebutted as a result of either parent engaging in abusive behaviours or family violence.
More generally however, consideration must also be given to whether the presumption is rebutted simply as a result of the court being satisfied that equal shared parental responsibility would not be in the best interests of the child. Mr C certainly suggested that he did not consider the difficulties in the relationship between the mother and the father of such significance that it would lead to it being impossible for the parties to reach joint decisions for the benefit of [X].
To some extent I would agree, but am troubled by the fact that the parties have been unable to reach agreement in relation to something as fundamental as where this little girl should be baptised. There is not even as often occurs a dispute as to the particular religious affiliation both parents indicating that they wish baptism to occur with the rites of the (religion omitted) Church. The dispute relates to the location of where the baptism should occur and if the parties have not been able in two years to resolve that issue there are obvious concerns as to their ability to reach agreement in relation to educational decisions and as was evidenced during the trial to discuss medical decisions.
I am concerned therefore that whilst it would no doubt be of benefit to [X] to have both her parents fully involved in the decision making process, it may also ultimately lead to a stalemate as has occurred with regard to the baptism and therefore further hurt for the parents but more significantly for the child.
Ultimately, I have rather reluctantly come to the view that equal shared parental responsibility is presently not workable and would not be in the best interests of this little girl. It is to be hoped that the parents will be able to liaise with each other and in particular for the mother to properly consider any issues and concerns that might be raised by the father. I intend to make orders that will require consultation but ultimately a situation such as that relating to [X]’s baptism should not be allowed to fester as long as it has such that with the exception of arrangements in relation to the baptism upon which I intend to make orders, the mother should have in the end the opportunity to make decisions with regard to the child’s care, welfare and development.
Having reached the determination that sole parental responsibility should vest in the mother, she being the parent with primary responsibility of the care of the child, the issue then is to order the time frame during which progression should be made in respect of [X]’s time with her father. In my assessment the orders detailed at the commencement of these reasons best reflect an appropriate progression towards more significant time being spent with the father but at the same time recognising the need to progress more slowly so as to recognise “[X]’s anxieties” but also the benefits of time spent with her father.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 1 April 2016
2
2