Woods and Carman

[2019] FamCA 957

FAMILY COURT OF AUSTRALIA

WOODS & CARMAN [2019] FamCA 957

FAMILY LAW – CHILDREN – CONSENT ORDERS – Order that child live with the mother – Order that the child spend time with the father as agreed and failing agreement as set out in the Orders – Order that parents have equal shared parental responsibility for the child – Orders that both parents are able to communicate with the child when the child is not in their care – Orders allowing the child to travel, including international travel – Specific Issues Orders. 

Family Law 1975(Cth) s 60B and s 60CC

J v C in [1969] 1 ALL E.R. 824
Donnell & Dovey [2010] Fam CAFC 15
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Ms Woods

RESPONDENT: Mr Carman

INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

FILE NUMBER: WOC 172 of 2017

DATE DELIVERED: 27 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 27 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Our Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: E Town Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Evans Family Lawyers

Orders

1. BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975(Cth) , 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.

3. All extant applications be dismissed.

4. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED

1. A copy of the Reasons for these orders be taken out and placed on the Court file.

Exhibit “1”

RECITALS

A.The Applicant is the Mother and the Respondent is the Father of the child, X born … 2003 (‘the child’).

B.The parents were married … 2004 and separated on a final basis on 15 September 2013.

C.The parents have engaged with Dr B for Reportable Intensive Family Therapy since February 2019.

D.The parents have now reached an agreement to resolve these parenting proceedings in accordance with the following Parenting Consent Orders.

ON A FINAL BASIS BY CONSENT IT IS ORDERED:

1. The parties have equal shared parental responsibility for the child X born … 2005.

2. The parties are not required to consult with each other when making day to day decisions while the child is in their care.

3. The child live with the Mother.

4. The child spend time with the Father at all times as agreed between the parents, but failing agreement then at a minimum as follows:-

   (a)During all D School gazetted school term periods from after school on Friday to before school on Monday commencing on the first Friday of each NSW school term and each alternate weekend thereafter;

   (b)During Term 1 and Term 3 of the D School Gazetted School Holiday periods:

   (i)In all years ending in an even number, for the first half of each school holiday period, commencing at the conclusion of school on the last day the child attends school and concluding at 8:00pm on the day that is  the mid-point of the holiday period and if there is an uneven number of days in the holiday period, the child shall spend the extra day with the Father.

   (ii)In all years ending in an odd number, for the second half of each school holiday period, commencing at 9:00am on the day that is the mid-point of the holiday period and concluding at 8:00pm on the day immediately prior to the commencement of the next school term.

   (c)During Term 2 of the D School Gazetted School Holiday period:

   (i)In even numbered years for a period of two weeks commencing at 9:00 on the day following the last day of school term and concluding at 8:00pm on the day that is the fourteenth day after the commencement of time;

   (ii)In odd numbered years, for a period of one week commencing from 9:00 am on the 15th day of the school holiday period at the conclusion of term 2 and concluding at 8:00 pm on the day immediately prior to the commencement of the next school term.

   (d)During the D School December/January gazetted school holiday period for a block period of four weeks as agreed between the parties, and failing agreement as follows:

   (i)In odd years, for the second half of each school holiday period, commencing at 9:00am on the day that is the mid-point of the holiday period and concluding at 8:00pm on the day immediately prior to the commencement of the next school term.

   (ii)In even numbered years, for the first half of the school holiday period commencing at the conclusion of school on the last day the child attends school and concluding at 8:00pm on the day that is mid-point of the holiday period.

   (e)For Christmas:

   (i)In all years ending in an even number, from 12:00 noon on Boxing Day until 12:00 noon on 28 December;

   (ii)In all years ending in an odd number, from 12:00 noon on Christmas Eve until 12:00 noon on Boxing Day.

   (f)On the child’s birthday, from the conclusion of school (or 3:00pm) until 8:00pm if the child’s birthday falls on a school day and for a period of four (4) hours as may be agreed between the parties if the child’s birthday falls on a non-school day and from 4:00pm until 8:00pm in the absence of agreement. That the child spend time with the Father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

   (g)That the child spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.

   (h)On any other time or occasion as may be requested by the child or agreed between the parties in writing.

Changeover

1. For the purpose of Order 4 herein, changeover shall occur at the child’s school for the purposes of Order 4(a) and as otherwise agreed between the parties in writing and in the absence of agreement, as follows:

   (a)The Mother to deliver the child to the father’s residence in E Town at the commencement of time; and

   (b)The Father to return the child to the mother’s residence at G Street, E Town the conclusion of time.

Communication

1. From the commencement of Order 8 herein, both parties be at liberty to contact the child by phone at reasonable times and with reasonable frequency while the child is in the other party’s care, provided that such communication does not occur more frequently that on one occasion during a 24 hour period and is child focused on supporting the agreed parenting arrangements pursuant to these orders and maintenance of their application.

2. All communication between the parties is to be in writing through text message or email or as otherwise agreed between the parties unless in the event of emergency when the parties shall communicate by text message or telephone call. The parties will ensure that all communication is civil and will limit their discussions to matters retaining to the facilitation of these Orders or the long-term care of the child are required by these Orders.

Restraints

1. Both parents be restrained from the following:

   (a)Speaking or permitting any other person to speak to or about the other parent or their partner in a negative, offensive or unpleasant fashion in the presence or hearing of the child; and

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.

   (c)Making any arrangement with the Child that will interfere with the operation of these orders.

   (d)Discussing with any other person any parental matters relative to any changes that should first be discussed with the other parent.

   (e)Relocating the child’s primary residence further than a 25 kilometre radius outside of the town of E Town prior to the child attaining the age of 16 years without the prior written consent of the other parent.

   (f)Allowing the child to engage in inappropriate games or watch movies that are not rated the child’s age.

   (g)Discouraging the child from participating in activities proposed by the other parent, including but not limited to overseas travel.

Overseas Travel

1. From the time the child turns 15 years of age, during anytime the child would otherwise be living with his parents, each parent be permitted to travel outside of the Commonwealth of Australia with the child for holidays provided that the Department of Foreign Affairs and Trade does not advise against travel to such a destination and, the proposed destination is party to the Hague Convention and provided the Commonwealth of Australia maintains a High Commission in the Country of proposed travel.

2. Unless otherwise agreed, the Father be permitted to travel outside of the Commonwealth of Australia with the child to the country of New Zealand from 15 January 2020 to 24 January 2020.

3. In the event the parties intend to travel interstate or internationally during a period in which the child is to be in their respective care, the party intending to travel is to advise the other of his or her departure dates within 7 days of his or her aeroplane ticket purchase or travel interstate or internationally.

4. In the event either parent takes the child outside of the Commonwealth of Australia in accordance with Orders 9 and 10 herein, the travelling parent must provide written notice to the other party at the earliest opportunity but no less than 21 days in advance of the departure date and arrival date back into Australia and notify the other parent of who the child will be travelling with, the address and telephone number/s of the place/s where the child will be staying during the holidays and provide to the other parent:-

   (a)copies of hotel documents and receipts of where the child will be staying;

   (b)the child’s flight details, booking confirmation and itinerary. (‘the required information’).

5. The Mother shall retain the child’s passport.

6. In the event the Father seeks to exercise such overseas travel with the child pursuant to Orders 9 and 10 herein, the Mother shall release the child’s passport to the Father not less than fourteen days (14) days prior to the Father’s proposed travel provided the Mother has received the Father’s required information pursuant to Order 12 herein and the Father shall return the child’s passport to the Mother within five (5) days of his return to the Commonwealth of Australia.

THE COURT NOTES THAT

Neither the mother nor the father will unreasonably withhold any travel with Dominic and either parent during any block time Dominic spends with either parent.

OTHER ORDERS

1. In the event the parties are unable to reach an agreement with respect to the child’s residence, schooling or other co-parenting matter, the parties are to attend mediation with Relationships Australia or other suitably qualified provider.

2. Both parents shall be listed as emergency contacts at any school, hospital or doctor attended by the child and both parties shall take all necessary steps required to list both parents as emergency contacts within 7 days of the date of these Orders.

3. Both parents shall be at liberty to attend the child’s co-curricular and extra- curricular activities, including those that fall outside of the time that the child may be in their care and such activities shall include academic, social and sporting commitments.

4. Both parents shall take all reasonable steps to facilitate the child’s participation in any extra-curricular activities that may be engaged in.

5. Each party shall be entitled to receive the following information in respect of the child:

   (a)Copies of any reports, notices, advices or other communications in relation to the child’s education and well-being;

   (b)Copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to the child;

   (c)Copies of all notices received from the child’s school and details of functions, parent/teacher nights or meetings involving the child, and any other activity to which parents are invited;

   (d)Information as to medical treatment (including counselling) received by the child;

   (e)Information as to the child’s co-curricular and extra-curricular activities including the names of the clubs, associations or activities to which the child is enrolled.

6. Both parents shall notify the other as soon as practicable, and in any event, within 2 hours of any serious injury or illness suffered by the child whilst in that parent’s care. The parent notifying the other shall provide full and proper details to  the other parent of any such emergency, including the child’s whereabouts, physical state and well-being, names and phone number of any professional persons who are treating the child or who are otherwise relatively involved in such emergency.

7. There be no Order as to costs, with the intention that each party pay their own costs of and incidental to these proceedings.

8. That pursuant to Section 65DA(2) and Section 62(b), 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 to adjust and comply with an Order are set out in the attached Family Law Courts fact sheet entitled “Parenting Orders – obligations, consequences and who can help,” and those particulars are incorporated in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 172 of 2017

MS WOODS

Applicant

And

MR CARMAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT  

INTRODUCTION

1. X (‘the child’) is aged 14.  He is a child of a relationship between Mr Carman (‘the father’) and Ms Woods (‘the mother’).  The matter is being dealt with in open court today, although neither the parties, nor their representatives, nor the Independent Children’s Lawyer are appearing.  They have, for the reasons I am about to recite, resolved the parenting disputes.  The matter was called outside court today and no one has appeared.

2. The reason for presenting this ex tempore judgment is that the parties have been engaged in conflict since about 2013.  This matter came on for hearing before me in September 2018 and was referred to a psychologist, Dr B, to see whether she could untangle the web which was impacting on this child.  As at last year, the child had not seen his father for more than a year, and the likely outcome of the proceedings was either an order requiring the child to spend time with his father, and that was unlikely to succeed given the age and maturity of the child at that stage, or the child spending no time with his father, which would have caused the child significant psychological harm.

3. The parties separated in mid-September 2003 and each of the parties, as at last year, showed dislike for the other. Each of the parties blames the other for the conflict that burdens the child. 

4. The parties entered in a parenting plan in April 2014.  The effect of this plan was that the child spend equal time with each parent.  The plan, at a superficial level, worked well until 2017.  The father’s case is that the mother endeavoured to alienate the child from him and that the mother continues with this action to exclude the child from his life.  The mother’s case is essentially that the father is a controlling, angry and aggressive man who is now displaying anger to the child and, as the mother asserts, that she endured the same in the later years of her relationship with the father.

5. In November 2016, the mother was overseas and received a text from the child which worried her.  The child was, through the parenting plan, to spend half the holidays with the father over the 2016/2017 year.  This did not occur and a series of events happened over that time, the consequence of which were that the child had not seen the father between January 2017 and the commencement of the hearing in September 2018, a period of some 18 months.  The child has struggled with various issues since separation and has seen a counsellor or family therapist from October 2013.  The last appointment the child had with this psychologist was in February 2017.  Since that time, the child has been seeing Ms B. 

6. In January 2017, the child called the father and said he wanted to go to an adventure park.  There was some events there, which I will not go into, but the child said he developed distrust of the father.  Suffice to say that I was concerned in September last year that the continuation of the hearing, which had run, at that stage, for about two days, would not bring about a resolution of the conflict to which this child was exposed.  I raised with the parties whether they should try some intensive therapy in relation to the assertion of an alienation, not in a sense of a psychological illness, but as a sense of the realities in the child’s life. 

BACKGROUND

1. The mother is aged 53 and the father is aged 51.  The father has a child from a previous relationship, Mr Y, who was born in 2000 and is now aged 19.  The parties commenced their relationship in about March 2004 and were married in later that year.  The child was born in 2005 and the parties moved to E Town in 2007. 

2. There were clear indications of conflict between the parties in relation to parenting from at least 2011 onwards.  The mother asserted that the father acted inappropriately and was, at times, violent to her.  The father alleged that the mother was in another relationship and makes other allegations as to the mother’s alleged behaviour.  The parties separated in September 2013, at which time the child was aged eight. 

3. The parties made different allegations about the parenting arrangements.  What is clear is that the child spent more time with the mother than with the father.  The child was clearly impacted by the conflict between his parents and commenced seeing a psychologist.  There were allegations of violence between the father and the mother over that period of time.  In December 2013, an Interim Apprehended Domestic Violence Order was made against the father.  The mother asserted that the father withdrew financial support later that year and, in early 2014, the father pleaded guilty in relation to an alleged breach of the Apprehended Domestic Violence Order.

4. In April 2014, the parties entered into a parenting plan, which provided for equal shared parental responsibility of the child, and that the child live with the father on a week-about basis and half of the school holidays.  In June 2014, the parties entered into consent property orders.  In November 2015, the mother entered in a relationship with Mr F, however the conflict that existed between the parties continues.  This included issues over child support and the like. 

1. Following some events in January 2017, the child ceased spending time with the father and the relationship between the child and the father deteriorated.  Further, Apprehended Violence proceedings were commenced in 2017.  The mother’s relationship with her partner Mr F came to an end in 2018. 

2. Proceedings were commenced in 2017 in the Federal Circuit Court and were transferred to the Family Court in May of that year with an Independent Children’s Lawyer being appointed.  There were issues about school, medical treatment and the like.  These continued at a prodigious rate.

3. The matter came before me in December 2017 and I made a number of protective orders.  In the same month, the mother’s Application for the Apprehended Violence Order, to which I have earlier referred, was dismissed.  Orders were made by me in March 2018 which listed the matter for hearing, and it came before me for hearing and ran for two days until 14 September 2018. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (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).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The 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 either 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 family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (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).

   (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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (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).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]

   3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases.  The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240

   4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance.  For all I know that may have been true in some cases containing dicta to that effect.  But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change.  I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion.  But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.

   [1] Page 824.

2. These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.

3. The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.

4. The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] FamCAFC 15 and said:-

   25.    In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75]. 

   (Bold emphasis added).

   26.    Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:

   It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

   and more broadly, at [75]:

   While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

5. The Full Court in Yamada & Cain (supra) went on to conclude:-

   27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

6. I will endeavour to apply the principles of law to the facts.

7. When the matter came before me in September 2018, the father gave evidence and I have had regard to that evidence.  I heard evidence from a single expert, Ms G (‘the single expert’), who gave clear evidence as to the conflict that this child was exposed to.  The mother’s partner Mr F, with whom the mother has now apparently reconciled, gave evidence and I had regard to that evidence.  Evidence was given by the child’s maternal grandmother.  I did not hear evidence from the mother, although I read her affidavit material. 

8. The matter was then referred to Dr B who worked with the parents.  Slowly, the parties began to work better in terms of their parenting of the child.  The child is now spending time with the father and the parties had, as at October of this year, reached agreement in respect of many issues.  It came before me on 14 October, and I was told there was one narrow issue for this Court to determine and that narrow issue was listed for hearing today.  In the days prior to this completion of the hearing, the parties and the Independent Children’s Lawyer tendered a minute of consent order which resolves all of the matters. 

9. In coming to the conclusion to make those orders, I have regard to the submissions that were made by the parties and the Independent Children’s Lawyer before me on 14 October 2019.  These proceedings are now concluded and, with the assistance of Dr B, the child appears to be having a good relationship with both parents.  I have read the material of each of the parties again before making these orders and I have read the single expert report to which I have earlier referred. 

10. I am satisfied on the material before me that it is in the best interests of this child to make the orders which I am asked to make by each of the child’s parents and the Independent Children’s Lawyer.  Accordingly, I have so ordered.  

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 November 2019.

Associate:     

Date:              12 December 2019