Williamson & Parrish (No 2)
[2023] FedCFamC2F 554
•15 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williamson & Parrish (No 2) [2023] FedCFamC2F 554
File number: MLC 3792 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – final parenting orders – high conflict family – whether one parent should have sole parental responsibility for health and education – whether the children’s living arrangements should be substantial and significant time or equal time – whether one parent should be made to purchase a set of school uniforms – whether one parent should be made to fix their water supply – whether there is power to make the school uniform and water supply orders in parenting only proceedings – whether one parent should be made to assist the other with the application for international passports – whether there should be an injunction restricting time with a grandparent. Legislation: Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B(2), 65DAA, 65DAC
Cases cited: Adamson & Adamson (2014) FLC 93-622
Fox v Percy (2003) 214 CLR 118
Lennon & Lennon [2011] FamCA 571
Rice v Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 152 Date of hearing: 26 – 27 April 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms McCreadie Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 3792 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WILLIAMSON
Applicant
AND: MS PARRISH
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 MAY 2023
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 17 May 2023.
THE COURT ORDERS BY CONSENT THAT:
1.All extant parenting orders be discharged.
AND THE COURT ORDERS THAT:
2.The Mother have sole parental responsibility regarding health and education, but not for the issue of choice of school, and otherwise the parents have equal shared parental responsibility for X born in 2011 and Y born in 2012 (together ‘the children’).
3.With respect to long term decisions of health and education to be made about the children, or either of them, unless agreed:
(a)save in emergency, each parent shall advise the other by email of her or his proposal relating to the children or any of them in a timely manner, then;
(b)if the other parent wishes to comment on the proposal, they shall, within seven (7) days after the receipt of the proposal, advise the other parent by email of her or his views;
(c)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to his views;
(d)after the Mother has considered the Father’s proposal or comments, she shall make a decision and advise the Father by email or SMS text message of the outcome as soon as practical after making that decision; and
(e)all communication between the parties be in respectful terms.
4.That during school terms the children live with the Father and the Mother in a fortnightly cycle as follows:
(a)with the Father:
(i)in week one, from the conclusion of school or 3:30pm on Thursday until the conclusion of school or 3:30pm on Monday and each alternate week thereafter SAVE THAT in the event that the Monday is a public holiday the Father's time shall be extended to 7:00pm on the public holiday;
(ii)in week two from the conclusion of school or 3:30pm on Wednesday until 3:30pm on Thursday and, each alternate week thereafter;
(iii)with weeks one and two to continue as the dates from the previous cycles under previous orders;
(b)at any other time as agreed between the parties in writing; and
(c)otherwise live with the Mother.
AND THE COURT ORDERS BY CONSENT THAT:
5.That arrangements set out in paragraph 4 herein are suspended during all school holiday periods, and shall resume at the commencement of each new school term as if the sequenced weekends had continued over the school holiday period.
6.Noting that the children attend different private schools, the children shall spend time with each party during the school holidays as follows:
(a)During Term 1 school holidays the Father shall have the first half of the holidays in odd numbered years and the second half in even numbered years with the Mother to have the second half of the holidays in odd numbered years and the first half in even numbered years.
SAVE THAT for the first term holidays each year the parties shall alternate the week containing the Easter holiday period (being from the conclusion of school or if not a school day from 5:00pm Holy Thursday until 5:00pm Easter Monday inclusive) such that the parent who had the children in their care for Easter holiday period in the preceding year shall not have them in their care for the portion of the term 1 holidays containing the Easter holiday period
(b)For one half of the Term 2 and 3 school holidays with the Father to have the first half in odd numbered years and the second half in even numbered years and the Mother to have the second half in odd numbered years and the first half in even numbered years and for the purposes of this order the school holiday period for both children shall commence at the conclusion of school on the last day of term (being the earlier date of the two schools if they fall on different dates) and conclude at the commencement of school on the first day of the new school term (being the later date of the two schools if they fall on different dates) with changeover to occur at 5.00 pm on the middle day of the holiday period;
(c)For one half of the long summer school holidays as follows:
(i)In 2023/24 and each alternate year thereafter:
A.With the Mother from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
B.With the Father from 10.00am on 11 December until
10.00am12.00pm on 25 December (Christmas Day)C.With the Mother from
10.00am12.00pm on 25 December (Christmas Day) until 5.00pm on 4 January;D.With the Father from 5.00pm on 4 January until 5.00pm on 15 January;
E.With the Mother from 5.00pm on 15 January to the commencement of school in Term 1 (being the later date if the two schools differ);
(ii)In 2024/25 and each alternate year thereafter:
A.With the Father from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
B.With the Mother from 10.00am on 11 December until
10.00am12.00pm on 25 December (Christmas Day)C.With the Father from
10.00am12.00pm on 25 December (Christmas Day) until 5.00pm on 4 January;D.With the Mother from 5.00pm on 4 January until 5.00pm on 15 January;
E.With the Father from 5.00pm on 15 January to the commencement of school in Term 1 (being the later date if the two schools differ); and
(d)For the purpose of this order school term holidays shall commence at the conclusion of school on the last day of term (being the earlier date if the two schools differ) and conclude at 3:30pm on the 1st day of the new school term (being the later date if the two schools differ), with changeover to occur at 5:00pm on the middle day of the holiday period.
AND THE COURT ORDERS THAT:
7.That the children (or each of them) shall not be required to spend time with the parties during such time that they may be attending a school program (such as camps, exchanges, excursions or other such programs) and to the extent this reduces the time with either parent during school holidays, then the school holiday arrangement be varied so that the remaining part of the school holidays be divided equally between the parents.
8.That the children be permitted to communicate with the other parent and their siblings by telephone (including calls and/or messaging) at all such times that they wish and the children be given privacy during such communication and each parent be and is hereby restrained from being present during such communication or insisting on reading such communication.
AND THE COURT ORDERS BY CONSENT THAT
9.That if the children are not already in the Father’s care on Father’s Day they spend time with the Father by agreement, and failing agreement from 10:00am Father's Day until 6:00pm on Father’s Day.
10.That if the children are not already in the Mother’s care on Mother’s Day they spend time with the Mother by agreement, and failing agreement from 10:00am Mother’s Day until 6:00pm on Mother’s Day.
11.On the children's birthdays by agreement, and in the absence of agreement, from the conclusion of school until 7.00pm on a school day, and from 12.00pm until 5.00pm on a non-school day, such times to be exercised by the parent who does not have the children in their care.
12.That in the event that changeover does not occur at school, then the Mother collect the children from the Father's residence at the conclusion of his time and the Father collect the children from the Mother's residence at the commencement of his time.
13.That each parent be at liberty to travel with the children overseas, PROVIDED THAT:
(a)the travelling parent provide the non-travelling parent with written notice via letter or email of an intention to travel overseas 28 days prior to the date of the intended travel;
(b)the travelling parent provide the non-travelling parent with a detailed itinerary including copies of electronic or other return airline tickets prior to the intended travel;
(c)the travelling parent provides details in writing of accommodation, including address and telephone number, of where the children will be residing during the trip, prior to the date of intended travel; and
AND THE COURT ORDERS THAT:
(d)wherever possible such travel should not occur during term times. However, in the event that travel is sought during term times that it only be undertaken with the consent of the non-travelling parent.
14.That the Mother be permitted to travel overseas with the children for 3 weeks in September/October 2025 with dates to be advised and with such time to include but is not limited to her half of the Term 3 school holidays.
15.That within 7 days of any request made by the Mother, the Father do all acts and things and sign all documents necessary to:
(a)Enable the Mother to obtain and/or renew Australian passports for the children or either of them at her expense;
(b)Enable the Mother to obtain Country E passports for each of the children; and
(c)Enable the Mother to obtain an Country E passport for herself;
and the Mother shall hold the children’s passports.
AND THE COURT ORDERS BY CONSENT THAT:
16.Each party shall ensure that the children attend all agreed extra-curricular activities and neither will enrol the children in extra-curricular activities that take place during the other parent's time without their prior written approval.
17.That each parent shall do all things and sign all documents necessary to authorise each parent:-
(a)to attend any school attended by the children and to communicate with teachers and school staff in relation to the children;
(b)to receive copies of school reports, school photographs and notices usually provided to the parents, at their expense respectively (if any);
(c)to attend all school functions and activities, including·extra-curricular activities, to which parents are invited to attend; and
(d)to provide a copy of these Orders to any school attended by the children.
18.That each of the parties:
(a)immediately inform the other in the event that either child suffers any serious injury or illness;
(b)forthwith inform the other of any specialist medical practitioner or psychologist/counsellor with whom either child is scheduled to consult with or has consulted with, and authorise such practitioner to communicate with the other parent in respect of matters concerning the child's health and to provide them with copies of all reports, notices, correspondence and any other documents ordinarily provided to parents and within 24 hours notify the other parent of any general practitioner they have attended upon, the reason for the attendance, any treatment prescribed and authorise the other parent to speak with that practitioner about the child's attendance.
19.That each party shall make available to the other·party any medications prescribed for the children by a medical practitioner and the other party ensure that medication is administered to the relevant child in accordance with the requirements or prescription of the medical practitioner, SAVE THAT long term medication and ear plugs to be the responsibility of each parent while the children are in their household.
20.That each parent keep the other informed at all times of their residential address, landline (if applicable) and mobile telephone numbers and email address(es) and notify the other immediately there is any change to those details.
21.Whilst denying the necessity for this Order each party, their servants and agents be hereby restrained from discussing these proceedings or the content of any document in or intended for use in these proceedings to, with or in the presence of or hearing of the children or either of them.
AND THE COURT ORDERS THAT:
22.The Father forthwith and within 28 days of the date of these Orders do all acts and things to ensure that he has repair the water pipe to his home to ensure water supply 24/7 and he provide evidence of same to the Mother when repairs are completed.
23.The Father do all acts and things to ensure that he is in possession of a set of appropriate school uniforms for the children or each of them (including sports uniforms, but not school blazers and school shoes) at his expense.
24.The parents each forthwith enrol in the ‘Parenting After Separation Seminar Program’ facilitated by D Family Centre Victoria at their own cost, complete that program within 6 months of these orders, and provide written proof of enrolment and completion of same to the other. For more details parties can visit:
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B. These orders have been amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), known as the slip rule. Discussions in Court on 26 April 2023 at around 2.27pm and 3.44pm indicated that the changeover times on Christmas Day was agreed to be at 12.00pm rather than 10.00am. These orders originally included the proposed 10.00am time in error.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Williamson & Parrish has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The question I must determine is the living arrangements for two children, X aged 12 and Y aged 10 (together referred to as ‘the children’). The existing shared care arrangement is the children living (during school term) five nights with their father (‘the Father’) and nine nights with their mother (‘the Mother’), with school holidays shared with each parent. The Father seeks to change this to a week about or equal shared care arrangement. I do not proceed on the basis that the status quo continues unless persuaded to change. I must examine the competing proposals through the prism of the evidence and application of legal principles.
I must also determine:
·Whether one parent should have sole parental responsibility for the health and education of the children;
·Whether there should be injunctions or restraints imposed on the Father's caring of the children;
·Whether the Father should have an additional or spare set of school uniforms for the children at his home;
·Whether the Father should be made to enable the Mother to apply for or renew the children’s Australian and Country E passports, and her own Country E passport; and
·Whether the Father should be ordered to repair the water connection to his home so that running water is available 24/7.
BACKGROUND
The Father is 53 years of age and currently works as a consultant in finance.
The Mother is 45 years of age and is a health care professional by profession, but is currently employed as a homemaker and parent to the household of herself, her partner (Mr F) and five children (including the two children subject to these proceedings). In or about December 2016 the Mother re-partnered with Mr F and the Mother and Mr F have one child born in 2020 (‘G’), now aged 3. Mr F has two children from a previous relationship, now aged 12 (‘H’) and 10 (‘J’), similar ages to the children in these proceedings, and those children live with Mr F and their mother on a week about basis.
The first proceedings
On 17 November 2015 the Mother filed an initiating application seeking financial orders and on 19 February 2016 the Father filed a response seeking orders that the parents have equal shared parental responsibility for the children and that the children live in an equal shared care arrangement. I will refer to those proceedings as ‘the first proceedings’. The first parenting proceedings were resolved on 2 February 2017 when parenting orders (‘the 2017 Orders’) were made by consent. Those orders provided for the children to live with the Mother and spend time with the Father in a fortnightly cycle that saw the children spending 4 nights each alternate weekend and each alternate Wednesday overnight with the Father; that is a 4+1/9 or a 5/9 each fortnight in school term arrangement. Those orders also provided for equal shared parental responsibility for major long term decisions and equal sharing of school holidays.
The property proceedings were finalised shortly thereafter on 9 March 2017, when the parents consented to final property alteration orders and on the same day entered into a binding child support agreement. The binding child support agreement was unusual in that it provided that neither party was to pay any child support to the other thereafter.
In the first proceedings the parties retained a family consultant who made a report, and the 2017 Orders reflected the recommendations of that report.
The final parenting orders of 2 February 2017 also contained a notation as follows:
B.That these Final Orders not be capable of being plead as a bar to the issue of further proceedings regarding parenting matters pursuant to the precedent in [Rice v Asplund] in the event that either party brings a further Parenting Application after mediation has taken place … save that any such proceedings shall not be commenced prior to 1 January 2019.
These proceedings
The Father commenced these proceedings on 7 April 2021, more than two years after the time that had been agreed in the notation B of the 2017 Final Orders. The Father sought, and seeks, an increase in the time the children live with him to be equal time and week about. In response the Mother brought an application that the Father's proceedings be dismissed on the basis that there had not been sufficient change of circumstance to warrant the matter being reconsidered. She argued that notation B (above) did not bind the parties and invoked the principle known as Rice v Asplund (1979) FLC 90-725 (‘Rice v Asplund’). At that time the Mother had sought that the Father's application be dismissed and there be no further orders or change to the existing orders.
I dealt with that application in a hearing where the last submission was made on 10 November 2021 and reasons and orders were provided on 28 January 2022. I determined that the Mother's application to dismiss the Father's application on the basis of the principle or rule or precedent of Rice v Asplund should be dismissed.
The matter came on for a final hearing before me on Wednesday 26 and Thursday 27 April 2023 (although listed as a 3-day matter). At this final hearing, the Father represented himself and the Mother was represented by solicitors and counsel. I am grateful for the discipline and efficiency of the Mother’s lawyers and the Father that enabled the hearing to be completed in 2 days and without leaving any relevant evidence untouched.
These reasons for this final hearing are separate to and independent of the interim decision dealing with the Rice v Asplund controversy. The Rice v Asplund principles mean that the evidence of the applicant, in this case the Father, is dealt with quite differently than in these proceedings.
The material relied upon by the Mother was:
·The amended response to final orders filed 21 April 2023;
·The family report;
·The Mother’s affidavit filed 14 April 2023 (‘the Mother’s trial affidavit’); and
·Mr F’s affidavit filed 14 April 2023.
The Father did not indicate the material her relied upon in a case summary document, however he filed and served;
·An affidavit on 28 March 2023 (‘the Father’s trial affidavit’);
·An amended application for final orders on 2 March 2023; and
·An affidavit in reply on 21 April 2023.
In this matter, each of the Mother and the Father were cross-examined, as was the Mother's partner, Mr F.
Orders sought by the parties
The Father's application for final orders is contained in his amended response filed 2 March 2023:
1. Change [first proceedings file number] Part 2. That during school terms the children live with the Father and Mother in a fortnightly cycle as follows: (a) with the Father: (i) in week one, from the conclusion of school or 3.30pm on Friday until 3.30pm the following Friday (7 nights) unless Friday is a public holiday in which case the last school day before the holiday
(b) in week two live with the Mother for 7 nights
This changes the current 5 days per fortnight living with the Father to a 50:50 week about shared care arrangement.
Notwithstanding her position on the Rice v Asplund hearing, upon the final hearing the Mother filed response documents seeking different orders to the 2017 Orders. Following the release of the family report, the Mother filed a further amended response and sought further or different orders to that in her 3 March 2023 amended response. The orders the Mother sought and seeks are as follows:
2. That the Final Parenting Orders of 2 February 2017 (the Final Orders) be varied as follows:
2.1 That the Mother have sole parental responsibility for the children, [X] born [in] 2011 and [Y] born [in] 2012 in relation to education and medical decisions on the basis that the Mother keep the Father informed and advised in relation to same.
2.2 Each party do all acts and things to ensure that:
2.2.1 They are in possession of all necessary items for the children when in their care including but not limited to appropriate school uniforms and prescribed medication at the parties' individual expense;
2.2.2 Each of the children attend school in the appropriate uniform and with all necessary items and equipment at all times including an adequate school lunch at their individual expense (being the responsibility of the parent in whose care the children were in at the commencement of the school day).
2.3 The Father be and is hereby restrained from making any purchases of whatsoever nature on the Mother's school account at each of the children's school without her prior consent in writing and he otherwise be responsible for costs incurred by the children whilst in his care.
2.4 The Father forthwith and within 48 hours of the date of these Orders do all acts and things to ensure that he has running water (and all other household utilities and necessities including but not limited to adequate heating) in his home and he provide evidence of same to the Mother and the children's overnight time with the Father be suspended pending his compliance with this order.
2.5 Noting that the children attend different private schools, the children shall spend time with each party during the school holidays as follows:
2.5.1 During Term 1 school holidays in accordance with paragraph 4(a) of the Final Orders.
2.5.2 For one half of the Term 2 and 3 school holidays with the Father to have the first half in odd numbered years and the second half in even numbered years and the Mother to have the second half in odd numbered years and the first half in even numbered years and for the purposes of this order the school holiday period for both children shall commence at the conclusion of school on the last day of term (being the earlier date of the two schools if they fall on different dates) and conclude at the commencement of school on the first day of the new school term (being the later date of the two schools if they fall on different dates) with changeover to occur at 5.00 pm on the middle day of the holiday period.
2.5.3 Subject to paragraph 2.5.4 for one half of the long summer school holidays as follows:
(a) In 2023/24 and each alternate year thereafter:
(i) With the Mother from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
(ii) With the Father from 10.00 am on 11 December until 10.00 am on 25 December (Christmas Day);
(iii) With the Mother from 10.00 am on 25 December (Christmas Day) until 5.00 pm on 4 January;
(iv) With the Father from 5.00 pm on 4 January until 5.00 pm on 15 January;
(v) With the Mother from 5.00 pm on 15 January to the commencement of school in Term 1 (being the later date if the two schools differ).
(b) In 2024/25 and each alternate year thereafter:
(i) With the Father from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
(ii) With the Mother from 10.00 am on 11 December until 10.00 am on 25 December (Christmas Day);
(iii) With the Father from 10.00 am on 25 December (Christmas Day) until 5.00 pm on 4 January;
(iv) With the Mother from 5.00 pm on 4 January until 5.00 pm on 15 January;
(v) With the Father from 5.00 pm on 15 January until the commencement of school in Term 1 (being the later date if the two schools differ).
2.5.4 That during the long summer school holidays, the children are not to be left in the care of the paternal grandmother without the prior consent in writing of the Mother and should the Father be unavailable to care for the children he is to give the Mother the first option to do so.
2.6 That the children (or each of them) shall not be required to spend time with the parties during such time that they may be attending a school program (such as camps, exchanges, excursions or other such programs).
2.7 That in the event the children are not already in the care of the Mother on their siblings birthdays, then they shall spend time with the Mother as agreed and in default of agreement from after school until 8.00 pm on a school day and from 10.00 am until 3.00 pm on a non-school day on the following dates:
2.7.1 [H’s] birthday;
2.7.2 [G’s] birthday (unless it falls during the Easter long weekend that the children are due to be in the care of the Father);
2.7.3 [J’s] birthday.
2.8 That the children be permitted to communicate with the other parent and their siblings by telephone (including calls and/or messaging) at all such times that they wish and the children be given privacy during such communication and each parent be and is hereby restrained from being present during such communication or insisting on reading such communication.
2.9 That each party be and is hereby restrained from attending at the other's residence other than in accordance with these orders (for the purposes of any necessary changeovers) without the other party's prior consent in writing.
2.10 That each parent be at liberty to travel with the children overseas provided that:
2.10.1 The travelling parent provide the non-travelling parent with written notice via letter or email of an intention to travel overseas not less than 28 days prior to the date of intended travel;
2.10.2 The travelling parent provide the non-travelling parent with a detailed itinerary including copies of electronic or other return airline tickets prior to the date of intended travel;
2.10.3 The travelling parent provide details in writing of accommodation, including address and telephone number, of where the children will be residing during the trip, prior to the date of intended travel.
2.11 That the Mother be permitted to travel overseas with the children for 3 weeks in September/October 2025 with dates to be advised and with such time to include her half of the Term 3 school holidays.
2.12 That within 7 days of any request made by the Mother, the Father do all acts and things and sign all documents necessary to:
2.12.1 Enable the Mother to obtain and/or renew Australian passports for the children or either of them at her expense;
2.12.2 Enable the Mother to obtain [Country E] passports for each of the children; and 2.12.3 Obtain an [Country E] passport for herself;
and the Mother shall hold the passports.
3. For the sake of clarity:
3.1 Paragraph 1 of the Orders be discharged;
3.2 Paragraphs 2 and 3 of the Orders remain in full force and effect;
3.3 Paragraphs 4(b)-4(d) and 5 of the Orders be discharged;
3.4 Paragraphs 6 - 9 of the Orders remain in full force and effect;
3.5 Paragraph 10 of the Orders be discharged;
3.6 Paragraphs 11 - 16 inclusive remain in full force and effect.
3.7 Notations A and B of the Orders be removed.
4. That the Applicant pay the Respondent's costs of and incidental to his Initiating Application filed 7 April 2021, on an indemnity basis.
5. Such further or other final orders as deemed appropriate by this Honourable Court.
Conflicts
The effect of the 2017 property orders is not entirely apparent from merely looking at the orders because of the extent of property that each party retained. The combined effect of the property orders and the child support binding financial agreement on any obligation to pay or contribute to medical expenses for the children or school uniforms and extracurricular activities has been a source of profound disappointment, frustration and dispute to each of the parents since those orders were made.
At the time the 2017 Orders were made, the children did not attend private schools. Subsequent to the 2017 Orders, at the Mother's request, both children have attended different high fee private schools and at the Mother’s expense as agreed. The Father’s only obligation specified in the binding child support agreement is at paragraph 4 of that agreement, which reads:
Non-periodic child support
4 [The Father] shall pay or cause to be paid to [the Mother] for the support of the children the following:
i Private health insurance for the children at the current level of cover;
ii One half of primary and secondary school fees for attendance by the children at a State school.
[Emphasis added]
Upon the Father’s interpretation, the children not attending state primary or secondary school meant that he had no obligation to provide any school uniform or school requirements. The Father also said he took into account, and I accept he did, what he had long referred to as the “draft agreement” between the parties.
It was not disputed that before the orders were made and before the binding child support agreement was made that each of the parties had made proposals to the other as to financial and child support matters. The Father regarded that “draft agreement” as being significant to his financial obligations. However the “draft agreement” seems to have been a combination of proposals of each of the parties and all provisions were not agreed to or included in the final parenting or property orders or binding child support agreement.
In the circumstances of there being a shared parenting agreement and equal shared parental responsibility, the Mother regarded the Father as having the moral, if not the legal, obligation to share to some degree in out of pocket medical expenses not met by health insurance and to have some items of the children’s school uniforms available in his home at his expense.
The circumstances that the Father regarded it as the Mother’s responsibility to provide all school requirements, including school uniforms, has caused considerable trouble and angst. On a few occasions the Father has regarded the Mother as “withholding” the children’s school uniforms. It is common ground that the Father has steadfastly refused to make any contribution to or purchase himself any aspect of the children’s school uniforms or accoutrements such as school bags, etcetera.
Although unstated, a central theme of the Father's application was that he was entitled to, or should ordinarily have, week about time, which he sought as “two additional days”. It may be the Father's belief of an underlying entitlement or starting position of there being equal time in a week about arrangement came from or at least was shaped by section 65DAA of the Family Law Act 1975 (Cth) (‘the Act’), which will be recited later in these reasons.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) which states as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Credit of parties
Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy) was a High Court case concerning the skid marks of a Kombi van on the correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31] …in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
The context to that observation is that in Fox v Percy, the issue was which side of the road collision between a Kombi Van and two horse riders occurred. At first instance, the horse rider’s evidence was regarded as more reliable than that of the driver of the Kombi van and the court found that the collision occurred on the wrong side of the road for the Kombi van. The High Court overturned the first instance decision because the skid marks of the Kombi van incontrovertibly demonstrated that the Kombi van had been on its correct side of the road.
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case.
I am also guided by the following observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
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[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations. However, in this case, some findings are necessary and able to be made.
In this case, I was able to observe the parties in the witness box and examine their demeanour and reactions to questions. I was also able to compare their accounts of some events with contemporaneous records of communications and events that I consider likely to be reliable. The accuracy of those records were not challenged, but the Mother questioned the context and completeness of some of them in cross-examination.
In this case I am satisfied each parent provided an honest account of events and their attitudes to the other and the children. Nothing turns on credit in this case. In this case each parent has described and recast events, to a greater and/or lessor degree, from incident to incident, from his or her perspective at this point in time and for the purpose of his or her benefit as he or she saw it in these proceedings. Some events, where relevant, are dealt with later in these reasons.
In these reasons findings of fact are made on the balance of probabilities, partly from my observations of the demeanour of witnesses and where possible on the basis of contemporaneous materials, objectively established facts and the apparent logic of events. In this case the real attitude of each of the parents to the other and to the responsibilities of parenthood was transparent.
Family Law Act provisions
I regard the best interests of the children as the paramount consideration in making these parenting orders.
I must consider the matters described in the Act as primary considerations and additional considerations. In doing so I take into account all of the evidence including those parts I have recited in these reasons as “significant events”.
I apply and take into account the whole of Part VII of the Act. In particular, I apply sections 60B(1) and (2), 60CA, 60CC, 61DA, 64B(2), 65DAA and 65DAC which are as follows:
60BObjects of Part and principles underlying it
(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).
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60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
(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
(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:
(not relevant to this case)
(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.
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61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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64B Meaning of parenting order and related terms
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(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
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65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
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65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
SOME SIGNIFICANT EVENTS
The main problem in this case is that the children are caught in the middle of an unfortunate pattern of poor communication and the sharp but brittle and insensitive feelings that each parent has for the other.
The Father attached some text message communications in annexure 3 of his 28 March 2023 affidavit, from which many of the following text messages were taken. In cross-examination the Mother took the point that she was not satisfied that they adequately reflected the context and that they may have been cut and pasted to inaccurately present a picture. However, the Father was not cross-examined as to this evidence at all, and I do not have any basis to find that there has been a misleading selection or misquoting of the text messages. The text messages reflect badly on the Father as well as the Mother.
In 2017, soon after the parenting orders were made, the parties were communicating about parenting arrangements by text. The text messages set the tone of communications thereafter, and a message on 16 March 2017 from the Mother to the Father was as follows:
There are days that I have to work but I have already booked them into various programs. Seeing as you won't even take them to a psychologist, and look after what are their basic needs, let alone care about their education, I do not wish for them to be in you and your mother's care with the television on. You make it impossible to coparent, and your behaviour nothing short of unfatherly. I have no respect for you
This text message from the Mother is a mere six weeks or so after the 2017 Orders were made by consent and only a week after the 2017 property orders and child support agreement were made.
Hence it can be seen that the finalisation of the litigation did not lower the temperature of conflict between the parties and a constant stream of rude, terse and sometimes insulting communications emanated from the Mother and, when responded to by the Father, his responses were, by and large, of an intransigent and terse tone that continued to infuriate the Mother. Some examples follow and I adopt the current colloquial use of “text” as both noun and verb.
On 26 April 2017 text messages exchanges between the parties included the following:
From the Father:
No but I am only taking him if you pay for it as I pay for their private health insurance.
From the Mother:
I am not paying for it. Health insurance doesnt cover everything.
From the Father:
I am not taking them to any health appointments that I do not initiate. Please cancel all that you have arranged without my consent
The following day the Mother sent the Father the following text message:
I guess I should be grateful that you will take him considering you don't think it is important that they learn to swim… Father of the year. [Ellipses in original]
On 31 May 2017 the Mother text the Father as follows:
Interesting that you verbalised yr concern about [Y’s] speech tonight at parent teacher, but yet see no need to take her to the speech pathologist yourself. Not sure who you are kidding in this scenario
On 16 June 2017 the Mother text the Father as follows:
It's about time you considered financial and time contributions to their medical costs.
The Father responded the following day as follows:
I pay for their private health insurance.
The Mother responded:
Stop kidding yourself. You will take him and pay for it.
On 22 June 2017 the parties exchanged text messages as follows.
From the Mother:
BTW not very nice for a son to be dumped on a doorstep at changeover by his father.
From the Father:
He was not "dumped" I walked him to the door and kissed him good bye. I was just avoiding another earful from you
From the Mother:
Really? The car was on when I opened the door. What a load of bullshit- I never give you an earful. I don't bother speaking to you because you struggle to comprehend basic conversation and are unable to communicate. They don't need to hear the crap that comes out of your mouth.
The Mother outlines in her trial affidavit that, about six months after the property orders and seven months after the children's orders, the Father refused to renew her own and the children’s Country E passports in 2017. For reasons that are not clear to me, the effect of Country E law is that at that time for the Mother to obtain an Country E passport, to which she was entitled, and notwithstanding she was an Australian citizen, the Mother needed the consent of the Father. On her renewal application he wrote “DO NOT AGREE” and “do not trust [the Mother]” by hand on the form. In regard to the children’s Country E passports, he refused to consent and by email (annexure 22 to the Mother’s trial affidavit) stated:
I don't have any international legally enforceable assurance that, should circumstances change and you decide to keep the children out of Australia, I could make sure they live in Melb.
I'm happy for them to have [Country E] passports when they are older just not at the moment.
In 2017 the Mother initiated mediation to discuss parenting issues with the Father.
The Mother highlights, at paragraphs 20 and 21 of her trial affidavit, what she sees as the Father's rigidity and insensitivity around variations of the existing time arrangement. The Mother deposes as follows:
20. [The Father] also consistently refuses to agree to my requests for even minor changes to the parenting arrangements as set out further below. For example, when [Mr F] and I first started our relationship our respective parenting arrangements did not coincide so that our children were unable to spend weekends together and we also never got any time to ourselves. I politely requested by text message on 25 July 2017 that [The Father] consider "flipping" the term arrangements in about 6 months' time from the commencement of Term 1 in the new year, but he refused to agree and simply responded "No. Lets keep the current pattern". I raised this at several mediations but he continued to refused my request. Our time with the children was eventually aligned only when [Mr F] entered into final parenting Orders with regards to his children… in 2020. I otherwise refer below to [the Father’s] refusals to facilitate even basic changes to school holiday arrangements for the benefit of the children.
21. I have also regularly made requests of [the Father] that the children be permitted to attend their sister's birthday as well as their step-brothers and [Mr F’s] birthday celebrations however he either ignores my requests or rejects them. My father passed away [in] 2017. [X] and my father were particularly close and the weekend prior to his death I asked [the Father] if [X] could visit my father with me at his nursing home but he refused and instead left [X] in the care of his mother while he dropped [Y] to one of her activities round the corner from the nursing home.
The parties have lived with a substantial and significant time arrangement for many years. The parties are able to get the children to and from school, to and from medical appointments and to and from each other’s homes without substantial practical difficulty.
However the inability of the parties to properly and cooperatively communicate is a significant practical difficulty of the proposal for spending time as made by either party. In this case the practical difficulty of an inability to communicate does not substantially affect the children's rights to maintain personal relationships and direct contact with both of the parents on a regular basis.
Capacity to provide for children's needs
In different ways both parents have substantial capacity to provide for the children’s needs. The Mother provides for more of the children’s needs than the Father because of her payment of the substantial private school fees and her devotion in arranging and paying for various medical appointments. This factor does not support either parent's case for time arrangements as against the other.
Maturity, background and culture of the children
This factor does not support either parent's case for time/living arrangements as against the other.
Parents attitude to the responsibility of parenthood
The responsibility of parenthood includes how each parent tries to get on with the other and how each parent attempts to cooperate with the other parent. In this case neither parent currently parents with an appropriate attitude to the other parent. However there are a number of saving graces of each parent. Notwithstanding the contempt each holds the other in, each parent has week in, week out and year in, year out returned the children to the care of the other parent in accordance with applicable court orders.
The Mother pays for the substantial school fees year in year out.
The Father's attitude to the expense of raising children, including the school uniform issue, is a serious deficiency in his parenting. That the Father has met reasonable requests of the Mother for minor adjustments of the court ordered regime with an attitude of "Yes, if you agree with what I want even though I know that that is a profound problem or difficulty for you" is the antithesis of cooperative parenting and is a serious deficiency in the Father's attitude to the responsibility of parenthood. The Mother's inability to protect the children from her feelings about the Father is a serious deficiency in her attitude to the responsibility of parenthood.
One of the principles underlying the objects of the Act is that parents should agree and hence these matters and this section 60CC(3)(i) factor strongly contends against an equal time shared parenting arrangement.
The Father displays an attitude of genuine incredulity as to why the Mother would be concerned at running water not being available in his home 24/7. It is not only reasonable that she would be so concerned, but inevitable. The same applies as to his attitude to the spare school uniform question. In this regard the Father demonstrates a lack of insight into how decisions he makes influences the Mother's attitude to him and his parenting.
Family Violence
Neither party contended that this was an issue in this case.
Final or interim orders
Both parents seek final orders.
The presumption of section 65DA
I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. However the presumption can be rebutted by evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
In this case it is clear that the Father undertakes minimal responsibility for arranging medical consultations or attendances of the children. The Father has minimal interaction with the children’s treating specialists. The Father justifies this on the basis that he has complete confidence that the Mother will tell him what he needs to know about the children's medical consultations. It is common ground that at times Father either does not reply to the Mother’s emails or takes a considerable period to do so.
The Father’s attitude of responding to reasonable request for variations of parenting arrangements as an opportunity for leverage to obtain major concessions from the Mother, or as an opportunity to make a point, and his attitude to financial contribution outside of child support obligations are matters that I find strongly contend against an equal shared parental responsibility arrangement.
In Lennon & Lennon [2011] FamCA 571 Murphy J observed as follows:
108.The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. 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).
109.The matters and findings just discussed do not necessarily lead to a conclusion that there should be an order for “sole parental responsibility” which might arguably have the effect of excluding the “other parent” from any involvement in decision making. It seems to me that orders can be made which strike a balance; on the one hand removing (or significantly reducing) conflict by permitting of one parent to have the ultimate “say” but, on the other hand, permitting of input by the other parent. I propose to make such an order in this case.
[Emphasis added]
The evidence satisfies me that it is not in the best interests for the children’s parents to have equal shared parental responsibility for all major long-term issues for the children.
In the circumstances of the very poor relationship between the parents and their derision for each other, I am also concerned at empowering either parent in their conflict with the other parent. Because of those matters I am not satisfied that it is in the children’s interests for the Mother to have sole parental responsibility for all matters of education. The major potential battleground in regard to education was choice of school and here the Father agreed with or at least acquiesced in the Mother's strong determination to provide a high fee private school education to the children. It is in the children’s best interest that both parents are involved in their education and their educational environment, notwithstanding that only one parent is meeting the bulk of the expense. I am concerned that the antipathy between the parents may end up with the Father being sidelined from the children’s education. However the more day-to-day type decisions, like school camps/events/holidays and what sport or subjects should be enjoyed or thrust on the children, or each of them, should be made by the Mother having the “ultimate say” for long term educational decisions. But choice of school should remain a joint parental responsibility.
In every practical aspect of the children’s health the Mother has undertaken the major decisions and the Father does not question how she has kept him informed. It is common ground that at times the Father either does not reply or takes considerable time to reply to the Mother’s email communications to him and I infer about matters that include the children’s health. There is no evidence that the Father’s delay in replying has ever caused physical or medical harm to the children. However the Father’s delay in replying, and the uncertainty as to whether or not he will reply at all, is a matter of frustration to the Mother and must inevitably cause her and the children unnecessary stress.
In all the circumstances I am satisfied that the Mother should have sole responsibility for matters of health, but with a requirement that, save in emergency, she consult the Father about any major long term decision first, consider his response if provided in a timely manner and after she has made that decision promptly inform him of it. In other words, she has the “ultimate say”. Were these parents living happily together there would be disagreements about aspects of health and education and the reality of life is that both parents would consider the other’s views but one or other would have the “ultimate say” on different things. Parliament did not intend, by the concept of equal shared parental responsibility and the fact of separation, to empower a parent to stymy everyday arrangements.
Section 65DAA(2): consider equal time
I refer to this provision recited earlier in these reasons. There will be orders that include aspects of equal shared parental responsibility. Hence I must consider whether the children spending equal time with each of the parents would be in their best interests. I must consider whether the children spending equal time with each of their parents is reasonably practicable. If those two conditions are met I must consider, and consider seriously not just in passing, making an order for the children to live equal time with each of their parents.
Because of the matters I have found and observed in these reasons when dealing with the section 60CC additional considerations, and particularly the lack of the parents cooperation and the poor communication between them and the matters discussed in or under the heading of attitude to the responsibilities of parenthood, I do not consider that equal time is in the best interests of children.
Because of the matters that I found in regard to the parents cooperation and communication, and notwithstanding how close together, or at least close to the children’s schools, the parents live, I do not regard the children spending equal time with each of the parents as reasonably practicable.
Section 65DAA(3): consider substantial and significant time
I must consider and consider seriously the children spending substantial and significant time. Section 65DAA(3) of the Act defines substantial and significant time as recited earlier in these reasons. The substance of the 2017 Orders provided for the Father to have substantial and significant time with both children.
The parents have demonstrated that substantial and significant time is reasonably practical in the physical sense of getting the children to and from school and each other's homes. The parents have demonstrated their cooperation and communication is problematic and barely adequate for substantial and significant time.
Nonetheless I find that the substantial and significant time of a 5/9 school term regime is in the children's best interests.
CONCLUSION
These children are much loved by each of the parents and they know it. I raised with the parties whether I should order both the parents to undertake the same post separation parenting course. Neither was enthusiastic but the opposition was muted. Neither suggested a particular course and left it to me if I made such an order. The parent's poor communication and poor attitude to the other satisfies me that it would be in the children's best interests for both parents to obtain the further assistance of the same post separation parenting course. In my view each parent should know of the learning that the other will be exposed to in this course. I do not regard such course as a panacea, but the major threat of harm to the children comes from the parental conflict, the lack of cooperation and the lack of respect that each of these otherwise high achieving parents have for each other. So I will order the parents undertake a post-separation parenting course.
The children’s different schools have slightly different dates for their school holidays at times. The Mother’s case contains careful drafting of orders that maximise the Father’s time during school holidays and overcome this difficulty. The Father now agrees with that proposal and I will make those orders. The children should have the benefit of school holiday programs conducted by their schools, but to the extent that reduces time with either parent should be borne or shared equally between the parents and school holiday time adjusted accordingly. I will make the Mother’s proposed orders in regards to school holidays and I will make her proposed order 2.6 with a slight alteration.
I will not make the Mother’s proposed order 2.7 (time on the siblings’ birthdays) because it is likely to create conflict in the comings and goings of the children. Any birthdays of other children or family members can be celebrated during the parent’s time with the children. I will also not make the Mother’s proposed order 2.9 (do not attend either home) because I do not have enough evidence that it is necessary at this time.
I will make the Mother’s proposed order 2.8 for the children to communicate via phone or message with the other parent and/or siblings because there were no such provisions for this in the 2017 Orders, because this issue causes trouble for the children and because the parents and that it is consistent with the family report recommendations. I find that order to be necessary, reasonable and practical.
In summary, for the reasons stated above, and considering the provisions of the Act, I determine as follows:
·A 5/9 plus half school holidays with special days arrangement is in the best interests of the children;
·The parents should have equal shared parental responsibility save that the Mother should have sole parental responsibility for matters of health, including medical, but with an obligation to consult and inform the Father;
·The Father should get the water pipe fixed within 28 days and tell the Mother when the repair is completed;
·The Father should undertake the expense of having a spare set of uniforms, including sports uniforms, but not school blazers and school shoes, available at his home;
·The restriction on the Father's time by precluding his mother caring for the children from time to time is not appropriate;
·Both parents should enrol in and attend a post separation parenting course within the next 6 months and advise the other of the course, the place of the course and provide proof of having completed same; and
·If any party seeks costs an application can be made in accordance with the rules;
·The Father should ensure the children have Australian and Country E passports and the Mother has an Country E passport.
Both parties sought to have parts of the 2017 Orders remain. However, to have to refer to two sets of orders will not assist parental cooperation and so those parts of the 2017 Orders that are to continue will be remade in these orders.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 May 2023
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