Webber and Jones

FAMILY COURT OF AUSTRALIA

WEBBER & JONES

[2012] FamCA 1024

FAMILY LAW – CHILDREN – Best interests of a child – Where there is a long history of litigation between the parties – Where the parties entered into consent orders during the trial in relation to most matters in issue – Where the matters which remained for determination centred around whether the mother should have sole parental responsibility for major long-term decisions or whether it should be apportioned topic by topic, whether the child should change primary schools and whether the child should attend a specified private school from Year 7 – Consideration of Part VII of the Act – Where orders are made, excluding where the child attends secondary school, that the mother have sole parental responsibility in relation to long-term issues concerning the child, having consulted the father in relation to such issues and taken his opinions into account – Where orders are made that the mother may change the child’s primary school.

Family Law Act 1975 (Cth): ss 64B; 61C(1); 61B; 61DA; 60B; 60CA; 65AA; 60CC; 60CG; 65DAA; 4;

Goode & Goode (2006) FLC 93-286
Jones & Ors & Webber [2007] FamCA 1477
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Ms Webber

RESPONDENT:

Mr Jones

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3977

2007

DATE DELIVERED:

6 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

13 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Agatha Satala & Associates

FOR THE RESPONDENT:

Mr Jones appeared in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That excluding where the child will attend secondary school, the applicant mother shall have sole parental responsibility in relation to major long-term issues concerning the child, B born … July 2005.
That the applicant mother and respondent father have equal shared parental responsibility in relation to where the child will attend secondary school.
That the parties do all things and the father pays all necessary costs to maintain the child on the ‘Wait List’ for E School.
That the mother may withdraw the child from C School and enrol him at D School.
That other than in relation to an emergency, the mother shall consult the father in relation to decisions about major long-term issues for the child and take his opinions into account when making a decision of that type.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all outstanding applications are dismissed.

Notation

A.The Court notes that it is the father’s proposal that the child attends E School commencing Year 7 with the entire costs and associated expenses to be met by him. The father agrees that in the event that the child attends E School and he defaults in meeting an expense the mother will be at liberty to withdraw the child.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3977 of 2007

Ms Webber

Applicant

And

Mr Jones

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings in relation to the parties’ seven year old son, B (“the child”). Ms Webber, who is the child’s mother, commenced proceedings by her Initiating Application filed 20 December 2010. Essentially, she sought that a raft of orders made by consent on 27 April 2009 be suspended and, following a psychiatric assessment of the parties and child, that the parenting arrangements be reconsidered. In his Response filed 8 June 2011 Mr Jones, who is the child’s father, applied for an equal time order; namely, week about during term and half school holidays.
It would seem that the mother’s rationale for investigation by a psychiatrist is what she perceives are the father’s mood swings, bullying and manipulative behaviour. The mother’s approach was supported by Ms G, Family Consultant who has worked with the family for years and the Independent Children’s Lawyer (“ICL”). The father was willing to participate in such an assessment and pay half of the costs for it. However, in circumstances where there had been extraordinary involvement by the Court and Family Consultants and no evidence of mental health issues I formed the view it was more important for the father to provide financial support for the child than for the parties to incur considerable expense for a psychiatrist. Thus, a further family report was ordered. Unfortunately, this did not result in funds, which the father would otherwise have paid for the report, being offered as child support.
Ms F is the Family Consultant attached to this case. She participated in the first hearing day on 25 May 2012 and, following an order for a family report, met with the parties, the mother’s husband and the child in late July and early August 2012. At paragraph 2 of her report which is dated 13 September 2012, she provided a benign background to the dispute as follows:
The parties have had extensive involvement with the Family Court since 2007. They entered into consent orders in 2009 and, since then, there have been numerous applications made by [the mother], including applications for recovery orders, and a contravention application made by [the father]. It is understood that, between 2008 and 2011, the parents had ongoing involvement with Family Consultant [Ms G]. The purpose of this involvement was to assist the parents to effectively implement their parenting arrangement. It would seem that, despite this intensive involvement, the parents have struggled to consistently maintain an amicable relationship with one another.
Although it is accepted that because the parties did not live together after the child was born (indeed they may never have done so) their circumstances are quite complex, this fact alone does not explain the extraordinary level of disputation. The word benign is appropriate because this paragraph masks the awful reality of the magnitude of the parties’ disputation and the complexity of their previously on-again off-again relationship and, as has been mentioned, the extraordinary level of involvement of the Court and Child Dispute Services provided to assist the parties manage their parental relationship. Notwithstanding this Court’s involvement, as well as that of a community agency, parental conflict continued. Once the mother re-partnered the parental conflict escalated. So that it is clear, not as a consequence of actions by the mother and her now husband, but because of the father’s reaction to her re-partnering.
It can come as no surprise to either party that the Family Consultant was particularly concerned that the child:
… seems to be very aware that the conflict between his parents is about him and that his parents’ emotional states are highly dependent on him and their relationship with him. This awareness, which will likely grow with his increasing maturity, may become a significant emotional burden on [the child] that will increase the risk of him experiencing emotional difficulties and mental health problems. His exposure to inter-parental conflict and, as [the mother’s husband] identified, his apparent acceptance of that conflict as being normal may diminish his capacity to resolve interpersonal conflict and develop meaningful relationships in the future. (Family Report, paragraph 49)
These observations resonate with remarks made by Stevenson J in her reasons for decision given in this case on 28 November 2007. There, her Honour said:
In my opinion, both [the father] and [the mother] need to focus on the price which their son is paying for the conflict which they continually inflict on him during changeovers. The maternal and paternal grandmothers should also take active steps to spare their grandson from this distress... (Jones & Ors & Webber [2007] FamCA 1477, paragraph 22)
And at [33]:
… They must act in a more child-focussed manner or [the child] will ultimately pay a very heavy price for their behaviour…
Finally, at [35] her Honour again commented on the level of conflict to which the child was then exposed and said:
… I can only speculate as to how much distress he must be suffering as the result of the behaviour of his parents and grandmothers.
Five years later little has changed; albeit it has become apparent that until the father achieves equal time he views the situation as “war”. This is odd because in relation to the mother, it is apparent that she has supported extensive contact between the child and his father. In her evaluation of the family, the Family Consultant said:
[The child], by all accounts, is very much loved by all members of his immediate and extended family. Given the parents never lived together and separated prior to [the child’s] birth, it is a credit to them both that [the child] has meaningful relationships with both of them and his extended family. [The father] in particular could perhaps reflect on the strength of this situation. Whilst this love is a positive aspect of [the child’s] life which no doubt provides him with positive feelings, confidence and emotional security, it is clouded by what seems to be an ongoing struggle for power between his parents… (Family Report, paragraph 48) (my emphasis)
The Family Consultant’s evidence is accepted. The significance of the bolded sentence is that the Family Consultant indicates, in effect, that because the child has never lived with the father, indeed for a time the father moved to New York, the fact that the child has a meaningful relationship with him provides proof in itself of the mother’s support. In other words, the father’s commitment to his relationship with the child provides only part of the explanation for their strong relationship. In short, the amount of time he has spent with the child given the age appropriate consent orders and the quality of his relationship with the child are inconsistent with his contention that “… the mother is repeating an intergenerational pattern of excluding the father…” and “… that [the mother] has consistently made it difficult for him to have a relationship with [the child] for the past seven years…” (Family Report, paragraph 15).
These matters put into context the current application and the issues that remain in dispute. So that it is clear, throughout the second day of the hearing and into the following morning the parties negotiated all day. Agreement was reached in relation to most matters with only a few requiring adjudication in the hearing which followed the making of consent orders. The effect of these orders is that the child will continue in his mother’s primary care and have substantial and significant time with his father.
Bizarrely, having given up his application for equal time, most of the father’s cross-examination of the mother focussed on that issue. In a similar vein, during closing argument he suggested that the Court makes provision for an increase in his time with the child or lays the framework for an equal time application in the future. It was explained to him than any future application along those lines would have to address the rule in Rice & Asplund (1979) FLC 90-725. It was made plain that as final orders it was the Court’s expectation that those made during this hearing would endure for years. Notwithstanding the father’s protestations about the gains he has made in therapy in relation to the importance of cooperative parenting and protecting the child from conflict, as his foray back into equal time issues demonstrated, more extensive therapy is needed before his words become reality.
Thus, although it is pleasing that the parties were able to come to an agreement in relation to the majority of matters the father demonstrated little insight into the role he has played in achieving a highly conflicted parental relationship with the child’s mother. It is tempting but would be a mistake to regard the making of orders by consent in this hearing as signalling a reduction in parental conflict and as a portent for co-operative parenting in the future. As can be seen from the family report and the paucity of evidence filed for this hearing, the father did no more than concede ground in areas where the preponderance of evidence supported the mother’s position and she gave effect to the Family Consultant’s recommendations. Thus, while it is pleasing that so much was resolved by agreement, it is not accepted that this signals that a climate of cooperation into the future and respectful co-parenting is likely to prevail.

The issues

The matters which require adjudication are the following:
·Whether the mother should have sole parental responsibility for major long-term decisions or should this be apportioned topic by topic
·Whether the child should change schools from C School to D School
·Whether an order should be made for the child to attend E School from Year 7.

The General Law in Parenting Cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. ‘Parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Section 61DA requires that when making a parenting order in relation to a child, “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3. For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (ss 65DAA(1)(b) and (2)(d)) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286).

By virtue of s 60CA, the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations as identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.

Parental Responsibility

During closing argument it became clear the parties did not support equal shared parental responsibility in relation to major long-term decisions. Although counsel for the ICL strongly argued in favour of it, I agree with them that an order of that type would not be the child’s interests. Quite simply, there has been too much conflict about him for too many years. Not only has their conflict had the detrimental impact upon the child described by the Family Consultant, but has reached the point where the parties are highly sensitised to disagreement and, other than in an emergency in relation to the child, are generally unable to cooperatively co-parent. As to emergencies, in the last two years the child has twice been injured and hospitalised. One occasion followed his arm being caught in a dough mixer at the maternal grandmother’s bakery. The other occurred this year when he cut his knee and required ten stitches. On both occasions the parties harmoniously cared for their son in hospital.
However, this example of constructive co-parenting needs to be evaluated in the context of relentless litigation and disputation, as well as recent difficulties explored during the hearing. For example, on 5 October 2012, the father arrived unannounced at the mother’s office. The child was in his care albeit, in a car nearby. The mother works in a family business and, as an office administrator, alone. The father arrived screaming and demanded the child’s passport. He refused the mother’s request he leave and told her he would not go until she gave him what he wanted. The mother was frightened and closed her office door. As she did this, the father put his foot in the door. He then left. Distressed, the mother spoke with her mother and then went to the local Police Station. When she arrived she discovered the father had been there. Police informed the mother that the child was with him and that the father wanted her charged with assault. Police spoke again to the father following which no further action was taken. This was an unprovoked aggressive act by the father.
Lest it be mistakenly believed that the mother has not acted aggressively, in 2010, she “… chased [the father], who was carrying [the child], and grabbed him by the leg, ripping his clothing…” To the Family Consultant, the mother acknowledged she should not have behaved in that way and “alleged that [the father] had retained [the child] and was not prepared to return him to her. [The mother] said that [the child] was frightened during this incident and that, generally, his self confidence has been negatively impacted upon by his exposure to his parents’ conflict” (Family Report, paragraph 29). Although the father’s actions could be seen as provocative, the mother’s response was inappropriate and no less egregious than his behaviour described in the 5 October 2012 incident.
Another example concerns the difficulties the mother had with the father obtaining his consent to the child accompanying her and her husband overseas during the last school holidays. At paragraph 59 of the Family Report, the Family Consultant wrote about the mother having filed an application for an order regarding the child’s travel. The Family Consultant correctly recorded that the application was listed the day before the mother and her husband’s wedding in relation to which she correctly opined:
… This situation exemplifies the chronic, ongoing conflict between the parents and the impact on their, and consequently [the child’s], lives. The Court may need to consider the possible benefits of allocating parental responsibility solely to the parent with whom [the child] lives primarily. Doing this might, at least in a formal sense, put an end to the struggle for power between the parents and prevent further litigation regarding major decisions in the future.
In the event, it was necessary for an order to be made so that the child could join his mother and stepfather for their honeymoon. This simple vignette speaks volumes about the risk that equal shared parental responsibility for major long-term issues will only hold the child’s welfare to ransom. The father’s actions in relation to this matter stand in stark contrast to his evidence:
[The mother] understands that if there is a perceived conflict that the court is less likely to grant equal and shared parenting. In some ways I feel that this is an incentive for [the mother] not to make an effort to dissipate any conflict between us. I feel like I am constantly trying to extend the olive branch which is very quickly broken… (Exhibit B, paragraph 20)
and:
It seems that the frustrations we have with each other are mostly due to a lack of shared parenting responsibility… (Exhibit B, paragraph 24)
Here, there was no olive branch and the conflict was created solely by the father.
It will be recalled there was an ugly incident provoked by the father on 5 October 2012. The day before the parties appeared before me as part of a continuing Less Adversarial Trial. On that occasion the father sought to press an oral application to the effect that the mother gives him the child’s passport so that he could take the child overseas on 5 October 2012. This was the last weekend of the school holidays. The father did not have airline bookings and it was pointed out the child would have to be back at school on 8 October 2012. The gravamen of his proposal was thus that there would be one day without travel overseas. In short, the application had the flavour of a tit for tat response designed to compete with the mother being able to take the child overseas.
It is no adequate answer that the father had planned to take the child overseas those holidays and that the mother refused her consent. No child support has been paid by him since November 2009. Thus, with child support arrears in the vicinity of $6,000.00, it was not unreasonable for the mother to withhold her consent for travel overseas until the arrears were paid. So that the point is not overlooked, the father is in dispute with the Child Support Agency and claims (with his mother’s support) that monies provided by the paternal grandparents over the years to the mother for the child should now be credited as non-agency payments to the father’s benefit. It would be surprising were this argument accepted by the Child Support Agency.
The next example relates to the father’s failure to attend the scheduled interview with the Family Consultant. In relation to this matter, the Family Consultant’s unchallenged evidence is:
[The father] did not attend the scheduled interview dates for this report, did not give prior notice of his non-attendance and, as [the child] was in his care on that morning, he did not facilitate [the child’s] attendance. [The father] notified the Court that he had not attended due to him having allegedly received threats from [the mother’s husband] and not wanting [the child] to be exposed to [the mother’s husband’s] behaviour. When attempting to reschedule interview dates, [the father] insisted that he and [the child] be supplied with a “safe room” due to [the mother’s husband’s] alleged threatening behaviour. An interview date for [the father] was subsequently scheduled on a different day to that of [the mother] and [the mother’s husband]. During interview, [the father] stated that [the mother’s husband] had sent him a text message, on the pretence that it was from [the mother], and had called him a “nob”. [The father] said that he felt threatened by this event. He did acknowledge, however, that [the child] has a good relationship with [the mother’s husband]. (Family Report, paragraph 11)
The mother’s husband’s unchallenged evidence, which is accepted, is found at paragraphs 33 and 34 of his affidavit filed 6 November 2012. It is as follows:
33.The only contact I had with [the father] was via a text message from [the mother’s] phone. On the 15 June 2012 [the mother] had left her mobile phone at home whilst she was at work. I was at home and monitoring [the mother’s] work calls. I became aware of a text [the father] sent to [the mother] on the 12 June 2012:
[The father] said words to the affect (sic):
“Did you tell him what happened last December when he was away?
I wrote words to the effect:
“Last December?”
[The father] wrote words to the effect:
“When he was in [Town H]…”
I wrote words to the effect:
“Remind me? Must not have been much to remember”
[The father] wrote words to the effect:
“I am sure you’ll never forget…”
I wrote words to the effect:
“What’s your best memory”
[The father] wrote words to the effect:
“It will always be that way between us. It has been that way forever.”
“that’s why you cant bring yourself to see me know (sic).”
“What do you mean?”
I wrote words to the effect:
“Good morning [the father], Its [the mother’s husband] you knob.”
[The father] wrote words to the effect:
“Ha Ha.Jealousy is a course (sic) …”
“Knob”
“Id hate to be you Ha Ha Ha.”
34.I have never threatened [the father].
The word “knob” is a vulgar insult but contains no threat. Although he did his best, the father gave no credible explanation for his conduct referred to at paragraph 11 of the Family Report and his allegation he had been threatened by the mother’s husband. In short, his actions with the Family Consultant were self indulgent and inappropriate. I accept her evidence:
If [the father’s] behaviour around scheduling interviews for this report is typical of how he manages interactions with [the mother] and [the mother’s husband], then [the child] will be receiving a very clear message from his father that [the mother’s husband] is not acceptable in some way. At this time, it does not appear that these issues are impacting upon [the child’s] ability to develop and maintain a close relationship with [the mother’s husband]. However, it does appear that [the child] may be experiencing stress and anxiety regarding his father’s apparent disapproval of [the mother’s husband]. [The child’s] alleged anxiety regarding his father and [the mother’s husband] coming into contact with one another may also be exacerbated by [the mother’s] apparent anxiety regarding such an occurrence. Whilst one might consider it appropriate for [the child] to observe [the father] and [the mother’s husband] to have some form of positive interaction, [the mother’s] hesitation for this to occur may be justified. Despite [the mother’s husband] being willing and seemingly having the capacity to engage in such a relationship with [the father], it is doubtful at this point whether [the father] is capable. It will be of real benefit to [the child] if [the father] could manage his emotional responses in such a way that allows [the child] to feel comfortable having all of the important adults in his life present at his activities and events. (Family Report, paragraph 53)
Although it was pleasing to hear the father give evidence which suggested he was no longer troubled by the mother’s husband and, in effect, saw him as a positive influence in the child’s life, the father’s actions do not sit comfortably with his words. So that it is clear, there is too much evidence in the mother’s and her husband’s affidavit of offensive and belittling remarks from the father about the mother’s husband (some in the child’s presence) to attribute weight to this apparent about face. Indeed, the father and counsel for the ICL chose not to cross-examine the mother’s husband and thus there is no reason to reject his evidence. To an extent, this evidence is corroborated by the maternal grandmother, who also was not cross-examined.
As the text message outlined above conveys, an incident occurred in December 2011. By then, the father knew that the mother was in a settled and happy relationship with her now husband. While the child was with the father, the father telephoned the mother and asked her to join them for a meal. She declined. Although at first blush his invitation can be seen as providing an opportunity for the child to enjoy time with his parents together, it masks the difficulties the parties have previously had achieving relationship boundaries. In this regard, there is no doubt that during 2009 and for a period in 2010, which ended (according to the mother) when she met her husband, the parties occasionally spent time together and had sexual intercourse. Thus, on this occasion, when the father telephoned, the mother was anxious about being with him. However, not long after she declined, he arrived at her home with the child. In the child’s presence, he repeated his request she join them for dinner at his place.
It is the mother’s evidence she felt confused and trapped. When the child said “[p]lease mamma, I really want to see you, I miss you so much”, she wavered then agreed. It is her evidence, which is accepted, that the following occurred:
I then got into [the father’s] car with [the child], and we went to his apartment in [Suburb I]. When we arrived, I helped [the child] make his bed and pull the mattress out of [the father’s] car. [The father] said words to the effect:
“I have missed spending time with you, I want to have more of ‘[the child’s]’”
I then had dinner with [the child] and [the father]. [The father] was drinking quite heavily throughout the evening. At approximately 8.30 pm, [the child] asked me to read him a story in his new bed. I spent approximately half an hour reading to him. [The child] then fell asleep and I returned to the living room where [the father] was. He appeared quite drunk and tried to kiss me. I then stated that I was going home, and asked him not to do that. I then went to get my phone, but could not find it.
[The father] stated words to the effect:
“Your (sic) not going anywhere, you are staying with me tonight.”
[The father] then got upset when I told him I was not going to stay.
[The father] said words to the effect:
“We belong together, I know you love me, I will marry you tomorrow if you want, I know you don’t love [the mother’s husband], I want to have more children with you, you are so sexy.”
[The father] tried to kiss me and touch me again.
I told [the father] words to the effect:
“You need to go to sleep, [the father], I will wait to (sic) you fall asleep”
I then waited for [the father] to fall asleep and searched his apartment for my mobile phone, which I found and called a taxi from outside his apartment. I was feeling very vulnerable and annoyed at myself that I had put myself in that position again… (Mother’s affidavit, p 11)
The maternal grandmother’s unchallenged evidence is that at about midnight she received a distressed call from the mother. To her mother, the mother said:
…
Mum, I have put myself in a trap again. [The father] had called me last night and asked me to come for dinner. I said no I don’t want to.. Soon after, I heard [the child’s] voice at the side door, I went outside to see what was going on, and was shocked to see [the father’s] car in my driveway. He said to me come for dinner, don’t drive, I will pay for a cab for you later. I couldn’t say no, [the child] would be so upset, I didn’t know what to do, I didn’t think he would come to my house so I went and [the father] tried to have sex with me, he would not let me leave his apartment, I have only just gotten home. (Maternal Grandmother’s affidavit, paragraph 16)
Lest it be misunderstood the father did not force the mother to have sex; he accepted she was unwilling which was the end of it.
In short, it is accepted there is abundant evidence to support the Family Consultant’s recommendation in relation to parental responsibility. The parties’ ability to communicate is highly problematic; disputation about the child has raged for years which has adversely affected the child; his interests have been held to ransom as a consequence thereof and it is essential that to the greatest extent possible that problems in the future of this ilk are avoided.
Counsel for the ICL argued that with completion of these proceedings there are no major long-term issues that might arise and thus require a joint decision. The term “major long-term issues” is defined in s 4 of the Act and set out below:
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); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(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.
It will be seen that the definition is inclusive and broader than the five sub-paragraphs and thus the argument advanced by counsel for the ICL is rejected. Nor is it accepted that dividing aspects of the major long-term categories between the parties provides a logical framework. In this case, the facts strongly support an order that the mother, who by virtue of the consent orders will continue to be the child’s primary caregiver, has sole parental responsibility in relation to all major long-term issues. In relation to major long term issues, it is appropriate that the father is able to contribute to any such decision. Thus the mother will be required to consult him and take his opinions and advice into account.

School Issues

Turning then to school issues. The mother resides with her husband and the child in a home they rent at Suburb J. As I understand it, the child has always lived in this area which is close to Suburb C and Suburb K. The mother is employed in a family business and works Monday to Friday from 9.00 am to 3.00 pm. Her husband is a works full-time with a major media business. Since November 2009 the mother and her husband have supported the child without assistance from the father.
It is apparent from the family report that the mother’s husband and child enjoy an emotionally warm relationship. There was no challenge to the Family Consultant’s evidence that the mother’s husband “… seems to function reasonably well in social, emotional and occupational arenas and the relationship between [the mother’s husband] and [the mother] is likely providing [the child] with a functional model of intimate relationships”(Family Report, paragraph 55). For reasons explained in the Family Report, it is accepted the mother’s husband is a responsible adult who is child-focussed and whose presence in the child’s life is beneficial. It is also apparent that the mother and her husband are motivated to and deliver for the child a settled and stable home life.
Before the child started school the parties discussed where he might attend. The mother’s preference was D School at Suburb K and the father’s was C School. Suburb C and Suburb K are adjacent. Both are close to where the mother, maternal grandmother and paternal grandparents reside and the father’s workplace. It is not clear whether the father ever lived nearby. He now lives at Suburb L which is a considerable distance.

In any event, without the mother’s agreement, the father enrolled the child at C School. Faced with what she saw as a fait accompli the mother felt unable to deal with what she anticipated would be the father’s negative reaction if she pressed for D School. Albeit in relation to a different issue, the Family Consultant commented at paragraph 58 of her report:
… The option of [the child] spending only four nights per fortnight with his father in one block over a weekend was considered as potentially appropriate, but the predicted repercussions of this, involving [the father’s] negative feelings, contraindicates such a change.
The point being, based on her observations and interviews with the father, the Family Consultant correctly anticipated that he may escalate the family’s difficulties unless he was happy with the outcome. Her observations accord with my own. It follows that the mother’s failure to pursue an alternative to C School does not involve a concession that she agreed this was the better option for the child.
According to the mother, the child’s closest friends are those he met at day care attached to D School. It is primarily because of those established peer relationships that she wanted him to go to that school. The child has maintained those friendships and it is these children she says he is closest to. They are the children with whom he has play dates. In reaching this view the father’s evidence he has taken some of the child’s school friends to his parent’s farm (once) has not been overlooked. The father’s evidence that the child has established friendships at C School is corroborated by the child’s discussions with the Family Consultant (at paragraph 40). There, the child described his favourite school activities as sport and excursions. His most recent school report indicated that he has sound overall achievement and displays satisfactory or high effort. The child’s school report recorded his teacher’s comment he has a “delightful nature”, is settled in class and socially competent with his peers.
The Family Consultant, ICL and father agree that in the interests of stability the child should not change schools. In this regard, during the hearing the father abandoned his application that the child change primary school at Year 5. As I understood it, this was unrelated to the importance of stability and occasioned by his mother’s evidence that the paternal grandparents would guarantee E School fees from Year 7 but not earlier.
It is the mother’s evidence the child would easily adapt to D School. There is no doubt he is familiar with the school which is opposite the maternal grandmother’s business premises. In the lead up to this hearing the father spoke with the school Principal and satisfied himself about its suitability. Put simply, the father agrees with the mother that the child would be well educated at her nominated school.
As I understood it, it is not contended by either party that their preferred school is somehow academically or, for another reason, superior to the other. The points of difference are stability (C School) compared to a stronger friendship circle (D School). Irrespective of where the child attends primary school his parents are equally able to support him intellectually and educationally. Lest it be overlooked, in relation to the father, this has not always been the case and, for example, for much of this year he has moved between friends’ houses. The child has often not had his own bed and during the school week the setting was not conducive to rest or homework. According to the father, these problems have resolved. There is no doubt that he has recently commenced an intimate relationship with Ms M and shortly prior to the hearing, he moved into her rented house at Suburb L. There, the child has his own room and, provided this new relationship endures, the father’s recently unstable lifestyle would seem to have resolved. Because he did not tell the Family Consultant about Ms M she was not interviewed. Nor was she cross-examined. Thus, although her commitment to her relationship with the father and through him the child is accepted, it has not been possible for the Court to form an independent view about its longevity or how this newly formed family functions. Because the major aspects of the matters in dispute, nothing turns on this.
This year the child asked the mother if he could attend D School. She told him this had previously been discussed with his father and suggested he raise it with him. The mother did not do so directly (she should have) and it was only during the latter part of these proceedings that the father learned this issue was again under consideration. The child told the mother he had discussed his desire to change schools with his father, albeit it is not clear he did so.
I have found adjudication of this issue difficult and finely balanced. The arguments advanced about the importance of stability are accepted. No facts were presented which make it imperative, educationally or for any other reason, to withdraw the child from C School. These are weighty considerations against change. On the other hand, that the child’s closest friends attend D School and he has asked to attend there, are factors which weigh heavily in favour of change. The mother’s evidence that she believes the child would be happier at D School is also accepted. With both parties in employment there are logistical and practical advantages from the child attending school across the road from his maternal grandmother’s workplace. It is inferred that just as the paternal grandmother helps as a reader at C School she could do this at D School. There will be no effect on the child’s relationships with his parents and other significant family members whether he stays at C School or attends D School. Nor is it accepted that changing the child’s school on this single occasion will disadvantage him educationally or in any other manner.
Although the father understood that a place may not be immediately available, this is not the mother’s understanding. Her proposal is predicated on her paying the child’s school fees without contribution from the father. The mother and her husband have the capacity to do so and, thus, if the child commences at D School it is accepted the mother has the financial capacity to ensure his attendance until he completes primary school.
On a fine balance, it is accepted that the mother’s application in relation to D School is in the child’s best interests.
The final issue relates to whether an order should be made for the child to attend E School commencing Year 7. It is common ground that E School is a fine school within travelling distance of the mother’s home and less easily from the father’s home. This is where the father and his brothers attended school. The paternal grandfather also attended E School and it is the father’s and his parents’ strong and understandable desire the child does too. The father and at least one brother boarded; for how long is not known. Suffice to say, the father says he was happy there and went on to graduate with a Bachelors Degree.
The father is an executive director/owner of N Pty Ltd. For the past two years he has been embroiled in litigation which arose from a shareholders’ dispute that concluded with judgment on 7 September 2012. During the litigation the father was not paid which self-evidently caused significant strain and it would seem is the reason he was unable to pay child support. So that it is clear before November 2009 he paid $100.00 per week. When he describes himself as an owner of N Pty Ltd, it is not clear what his interest in the company constitutes. The only significance of this relates to the probability that he can afford fees and expenses associated with attendance at E School.
As a working guide, fees were assumed to be in the vicinity of about $25,000.00 per annum to which uniforms, excursions and the like must be added. The father’s child support arrears provide a sufficient evidentiary foundation for findings that the Court cannot be satisfied that the father would reliably pay school fees and other costs. Although it is his intention to do so, and he is optimistic that an upcoming redevelopment of his business will result in a dramatic improvement in his financial circumstances, this is no more than speculation. It is for this reason that the father’s mother was invited to give evidence so that she could confirm her financial commitment for E School. The paternal grandmother committed to meeting the child’s school fees and associated costs (from Year 7) if the father failed to do so. It is accepted she has the capacity and would do so. For his part, he agreed that in the event of default, the mother could withdraw the child.
The mother is favourably disposed to the idea that the child attends E School. As was indicated earlier, she spoke positively about the school and its facilities. She is willing to cooperate with the child staying on the waiting list and, if as Year 7 approaches, this is where the child wishes to attend school she will agree. However, she says that it is premature for the Court (or parties) to decide when the child is in Year 1 that it is in his interests in Year 7 to attend a particular school. She correctly pointed out that his interests and talents are in their infancy and it is likely to be a number of years before the style of education which will best suit him for secondary school would become apparent. Again, this has been a difficult issue to resolve which more or less developed on the run during the hearing. As would be clear from exchanges during the hearing, it is accepted that E School has much to offer the child. In addition, the father and his family’s strong connections to the school would add to the opportunity for the child to really enjoy and thrive there.
However, on reflection, I find myself in agreement with the mother that it is too soon to commit the child to a particular secondary school. Clearly, in the intervening years, circumstances may change. For example, the mother and her husband may want to buy a house but be unable to do so in the area they live in. The child may develop talents which are best promoted at a different school. The parties’ relationship may deteriorate even further which could make it difficult for the child if he attends a school with a close connection to the father but not also the mother.
Thus, provision will be made for the parties to maintain the child’s place on E School’s wait list and to jointly determine where he will attend secondary school. Although an order along these lines raises the prospects of litigation in the future, it is more important for the parties to try and work together on this important issue than to leave it to only one to decide.
For these reasons I am satisfied that the orders are in the child’s best interests.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 December 2012.

Associate:

Date: 6 December 2012

[2012] FamCA 1024

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Costs

Procedural Fairness