XANDER & DALY

[2015] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

XANDER & DALY [2015] FCCA 1235

Catchwords:
FAMILY LAW – Parenting – where the parties reached agreement on all matters save for parental responsibility – where the mother seeks sole parental responsibility – where the father and the Independent Children’s Lawyer seek equal shared parental responsibility.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA, 65DA, 117

Cases cited:
Goode & Goode [2006] FamCA 1346
Newlands & Newlands [2007] FamCA 168

Pavli & Beffa [2013] FamCA 144
R & R: Children’s Wishes (2000) FLC 93-000

Applicant: MS XANDER

Respondent: MR DALY

File Number: SYC 5074 of 2012

Judgment of: Judge Kemp

Hearing dates: 26 & 27 March & 5 May 2015

Date of Last Submission: 5 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

The Applicant appeared self represented.

Solicitors for the Respondent: Mr Long of Clinch Long Letherbarrow Pty Limited

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitors for the Independent Children's Lawyer: KD Holmes Solicitors

THE COURT ORDERS THAT:

1. In addition to the parenting orders made on 27 March 2015, the following orders are made in terms of orders 2 and 4, as follows:

   2.The mother, Ms Xander (“the mother”) and the father, Mr Daly (“the father”) have equal shared parental responsibility for the children:

   (i)[X] born [omitted] 2005 ([X])

   (ii)[Y] born [omitted] 2007 ([Y]), and

   (iii)[Z] born [omitted] 2012 ([Z])

   (“the children”).

   4.The mother and father shall when each of the children, [X], [Y] and [Z] are in Year 5 consult with each other in writing as to their proposals for high school for each such child AND in the event that there is no agreement by the end of Term 3 Year 5 about which high school any of the said children are to attend, the mother and father shall then do all such things to arrange to attend on the Parenting Orders Program (or if not available for this purpose a Family Relationships Centre) to attempt to resolve this issue prior to commencing any family law court proceedings.

2. The parties have leave to release a copy of this judgment to the convenor of the Parenting Orders Program or the Family Relationship Centre for use by any appropriate person employed in that program or Centre to assist the parties.

3. By consent, the father pay Legal Aid NSW, the Independent Children’s Lawyer’s costs in the sum of $4,100.00, within 3 months of the date of these orders.

4. There be no order as to costs as between the mother and the Independent Children’s Lawyer.

5. The appointment of the Independent Children’s Lawyer be discharged.

6. The matter is, otherwise, removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Xander & Daly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5074 of 2012

MS XANDER

Applicant

And

MR DALY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders in respect of the three children of the parties’ relationship, being [X], born [omitted] 2005, currently aged 9 years (“[X]”), [Y], born [omitted] 2007, currently aged 7 years (“[Y]”), and [Z], born [omitted] 2012, currently aged 3 years (“[Z]”) (“the children”). 

2. The proceedings were listed for final hearing commencing on 26 March 2015 for two days. 

3. On 26 March 2015, the parties, with the assistance of the Independent Children’s Lawyer, entered into discussions.  On the afternoon of 26 March 2015, the Court heard from the family report writer, Ms C, who was examined by the parties and the Independent Children’s Lawyer.  Ms C had prepared a family report dated 12 March 2014, released to the parties on 14 March 2014.  That report has become Exhibit “Court 1”.

4. Following Ms C’s oral evidence, the parties resumed their discussions.  The proceedings were then adjourned to the second day, being 27 March 2015.

5. On 27 March 2015, the parties prepared a minute of consent order which, ultimately, dealt with all matters the subject of the parties’ competing proposals, save for the issue of parental responsibility.  This minute of order became Exhibit “Court 2”.  The Court made orders on 27 March 2015, by consent, in accordance with that document, which set out the parties’ agreement, save for orders 2 and 4.  Accordingly, the following orders were made:

   1.   That all prior parenting orders be discharged.

   Parental Responsibility

   2.    Not agreed [but as set out in paragraph 7 below].

   Schooling

   3.   That unless the mother and the father consent in writing (or unless otherwise ordered by a Court):

   a.   The children [X] and [Y] each continue to attend [R] School until the conclusion of Year 6.

   b.   That [Z] continues to attend his current preschool and be enrolled and then attend [R] School until the conclusion of Year 6.

   4.   Not agreed [but as set out in paragraph 7 below].

   5.   That each of the mother and the father authorise any school, preschool or day care centre that any of the children may attend to provide to both the father and to the mother: -

   a.   Copies of all reports of the children to both the mother and the father.

   b.   Copies of Newsletters and announcements of all school/day care activities or other material about the education of the children to both the mother and the father.

   c.   Copies of all order forms for school photographs.

   6.   That each of the mother and the father authorise staff members at any school, preschool or day care that any of the children may attend to discuss that child’s progress with that parent AND a copy of these orders shall be deemed as the father and mothers’ authorisations.

   7.   That the father and mother may attend events to which parents are invited to attend such as a special day, prize day, school sports carnivals and parent teacher interviews and all school extracurricular activities in which any of the children participate.
   
   

   8.   That a copy of these orders may be provided by either the mother or the father to the school, preschool or day care attended by the children or any of them.

   Medical

   9.   That during any period during when any of the children are with the father, in the event that any child is hospitalised or receives medical attention, the father shall notify the mother as soon as practicable (and in any event within two (2) hours) after that child’s first contact with either the medical practitioner, medical centre or hospital, AND provide the mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the child.

   10. That during any period during which any of the children are with the mother, in the event that any child is hospitalised or receives medical attention, the mother shall notify the father as soon as practicable (and in any event within two (2) hours) after that child’s first contact with either the medical practitioner, medical centre or hospital, AND provide the father with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the child.

   11. That the father shall ensure the mother is kept informed as soon as is reasonably practicable of:

   a.   Any medical problems or illness suffered by any child while in the care of the father;

   b.   Any medication that has been prescribed for any child or over-the-counter medication given to any child while in the care of the father.

   12. That the mother shall ensure the father is kept informed as soon as is reasonably practicable of:

   a.   Any medical problems or illness suffered by any child while in the care of the mother;

   b.   Any medication that has been prescribed for any child or over-the-counter medication given to any child while in the care of the mother.

   13. That during any period the children are with either parent, or any child becomes ill then that parent shall be responsible to seek appropriate medical treatment for the child.

   14. That the mother and father consult in relation to the attendance of any child on any medical specialist for any of the children (such medical specialist include any specialist medical practitioner; dentist, orthodontist, speech pathologist, ophthalmologist, occupational therapist or other therapist (hereafter referred to as “consultant”) PROVIDED FURTHER THAT:

   a.   In the event that any child is referred to such consultant the parent who made the referral shall inform the other in writing within 24 hours of such referral to any such specialist medical appointment;

   b.   The parent who makes the initial appointment shall within 24 hours after the initial appointment is made and prior to the first appointment advise the other parent and authorise the consultant to discuss any matters with the other parent;

   c.   The parent who obtains the referral shall do all acts and things to ensure that the other parent is provided with copies of any test results, letters, referrals that he or she has received from and by any such consultant within 24 hours of receipt of such material by that parent;

   d.   Each parent is permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device.

   15.  That the mother and father are to attend the Parenting Orders Program (at Unifam) and for the purposes of this:

   a.  contact and arrange intake attendance within one month of the date of these orders; and

   b. thereafter undertake all reasonable steps by their allocated case worker and complete such programme.

   16. The mother and father are to communicate with each other in a civil and polite manner.

   Restraint on involving children

   17. That other than informing the children of these orders, the mother and father: 

   a.   are each restrained from discussing these proceedings with the children, within their presence or within their hearing, and

   b.   will ensure as far as possible that no other person (other than the Independent Children’s Lawyer) discusses these proceedings with the children, or within their presence or within their hearing.
   
   

   18. That the mother and father:

   a.   Are each be restrained from showing the children any of the affidavits, judgments or orders, applications or reports prepared for the purpose of these proceedings and

   b.   Are each be restrained from showing the children any material annexed or exhibited to such documents.

   c.   Will ensure as far as possible no other person show the children any such material.

   19. That the mother and father are each restrained from communicating with each other through the children.

   Non-Denigration

   20. That each of the mother and father are restrained from criticising or speaking badly of the other parent, or other parent’s family, including each parents partner and children, AND that this restraint includes in the presence of or within the hearing of the children and includes any written communication including electronic means of communication.

   21. Both the father and mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent’s partner or family either to or in the presence of the children.

   Notification of Change of Details

   22. The mother and father notify the other not later than seven (7) days PRIOR to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.

   Time with the parents

   23. That the children live with the mother.

   24. That the children spend time with the father during NSW school terms as follows:

   a.   From 5pm on Friday 27 March 2015 to 5.00pm Sunday 29 March 2015;

   b.   Each alternate weekend from 5.00pm Friday until 5.00pm on Sunday, commencing on the first Friday of each such school term;

   c.   Each Wednesday from after school or day care until 7.00pm.

   AND IT IS NOTED THAT  the children will be available to be collected from after school care and from daycare from 3.00pm on those days.

   25. That children spend with the father during the NSW school holidays as follows:

   a.   During the school holidays in June July 2015 for up to a period of three (3) consecutive nights on the second week of the school holidays, commencing at 9.00am on the first day and concluding at 6.00pm on the last day.

   b.   During the school holidays in September October 2015 for up to a period of five (3) consecutive nights commencing at 9.00am on the first day and concluding at 6.00pm on the last day.

   c.    During the school holiday in December 2015 January 2016 for seven (7) consecutive nights commencing at 9.00am on the first day and concluding at 6.00pm on the last day.

   d.    Thereafter during the second week of each of the shorter school holidays (being the holidays following school terms 1, 2 and 3) for one half of any such holiday period, and unless otherwise agreed commencing at 9.00am on the second Saturday and concluding at 6.00pm on the last day.

   e.    During the December 2016/January 2017 school holidays for seven (7) consecutive nights commencing at 9.00am on the first day and concluding at 6.00pm on the last day.

   f.     During the December 2017/January 2018 school holidays for fourteen (14) consecutive nights commencing at 9.00am on the first day and concluding at 6.00pm on the last day.

   g.    Thereafter during each December/January school holidays for one half of each school holiday period.

   26. For the purpose of calculating any school holiday period:

   a.   The holidays shall be taken to commence on the afternoon of the last day that the children are required to attend school of any term;

   b.   The holidays shall be taken to conclude on the evening two days prior to the first of school the following term; and,

   c.   Pupil free days at the commencement or conclusion of the holidays shall NOT be included as part of the holidays.

   27. That for the purpose of nominating any school holiday period at least 2 calendar months prior to the commencement of each NSW school period the father shall notify the mother in writing as to his nominated dates for the school holiday period AND the mother shall within three (3) days acknowledge in writing her receipt and confirm agreement.

   Changeovers

   28. That for the purposes of changeovers unless otherwise agreed in writing between the mother and father, all changeovers shall take place as follows:

   a.   For weekday changeovers during school terms the father shall collect the children from school and daycare, and

   b.   For all other changeovers inside McDonalds [S].

   Special Days

   29. That notwithstanding any other Orders, the children spend time with the father (unless otherwise agreed by the mother and father in writing):

   a.   from 9.00 am to 5.00pm on Fathers Day;

   b. from 9.00 am to 5.00pm on the father’s birthday ([date omitted]);

   c. in odd numbered years from 9.00am on Good Friday until 5.00pm Easter Saturday at 5.00pm;

   d.  in even numbered years from 5.00pm Easter Saturday until 5.00pm Easter Monday;

   e.  in odd numbered years from 9.00am on 24 December until 12 noon until 25 December;

   f.  in even numbered years from 12 noon 25 December until 5.00pm on 26 December;

   g. in the event that the children are otherwise with the mother on any of the children’s birthdays, then not less than two (2) hours on each child’s birthday that falls on a weekday at such time as is agreed between the mother and father in writing or in default of agreement between 3.00pm and 5.00pm AND that such time is with all the children;

   h. in the event that the children are otherwise with the mother on any of the children’s birthdays, then for not less than two (2) hours each child’s birthday that falls on a weekend at such time as is agreed between the mother and father in writing or in default of agreement between 9.00am and 11.00 am AND that such time is with all the children;

   i. on such other special occasions as agreed between the mother and father in writing.

   30. That notwithstanding any other Orders, the children spend time with the mother (unless otherwise agreed by the father and mother in writing)

   a.from 9.00 am to 5.oopm on Mothers Day.

   b. from 9.00 am to 5.00pm on the mother’s birthday ([date omitted])

   c. in even numbered years from 9.00am on Good Friday until 5.00pm Easter Saturday at 5.00pm

   d.in odd numbered years from 5.00pm Easter Saturday until 5.oopm Easter Monday.

   e.in even numbered years from 9.00am on 24 December until 12 noon until 25 December.

   f. in odd numbered years from 12 noon 25 December until 5pm on 26 December.

   g. from 5pm 26 December until 5pm on 2 January each year.

   h. in the event that the children are otherwise with the Father on any of the children’s birthdays, then not less than two (2) hours on each child’s birthday that falls on a weekday at such time as is agreed between the mother and father in writing or in default of agreement between 3.00pm and 5.00pm AND that such time is with all the children.

   i. in the event that the children are otherwise with the father on any of the children’s birthdays, then for not less than two (2) hours each child’s birthday that falls on a weekend at such time as is agreed between the mother and father in writing or in default of agreement between 9.00am and 11.00 am AND that such time is with all the children.

   j. on such other special occasions as agreed between the mother and father in writing.

   Communication with the children

   31. The father be at liberty to contact the children by Skype or Facetime (or its equivalent) between 7.00pm and 8.00pm each Tuesday, Thursday and Saturday (except on any Saturday when the children are in the care of the father on that day)

   PROVIDED THAT:

   a.   The father will contact the children;

   b.   The mother will ensure that the device on which Skype or Facetime is loaded is charged and switched on at the times of the calls to be made by the father to the children;

   c.   The children will have the right to retain the device in their possession during such periods;

   d.   The mother will ensure that each of the children are able to speak with the father  during such times uninterrupted;

   e.   The mother will ensure privacy to the children during such periods;

   f.    If the children are unable to speak to the father during any of these periods (including due to Skype not being available) then the father may telephone the children during that time;

   32. The mother be at liberty to contact the children by Skype or Facetime (or its equivalent) between 7.00pm and 7.30pm each Tuesday, Thursday and Saturday when the children are not otherwise in her care PROVIDED THAT:

   a.   The mother will contact the children ;

   b.   The father will ensure that that the device on which Skype or Facetime is loaded is charged and switched on at the times of the calls to be made by the mother to the children;

   c.   The children will have the right to retain the device in their possession during such periods;

   d.   The father will ensure that each of the children are able to speak with the mother during such times uninterrupted;

   e.   The father will ensure privacy to the children during such periods;

   f.    If the children are unable to speak to the mother during any of these periods (including due to Skype not being available) then the mother may telephone the children during that time.

   33. Each of the children is able to telephone, skype or facetime the parent they are not otherwise with and that each child is able to do so at any reasonable time.

   34. That within seven (7) days of the date of these orders the mother shall obtain an email address and a Skype and or Facetime address AND within such time also provide such contact details to the father and the Independent Children's Lawyer in writing AND that the parents shall thereafter do all other acts and things to facilitate accepting communication with each other by such means.

   Other Orders

   35. That a copy of the Family Report in proceedings dated 12 March 2014, and these Orders be able to be provided by the mother and father to the Parenting Orders Program.

   Passport Renewal and Overseas Travel

   36. That the mother and father shall do all acts and things and sign all documents necessary to renew and/or replace each child’s passport upon the expiration of the validity of their passport pending each child attaining the age of 18 years AND that the mother and father shall equally bear the costs of such passports applications.

   37. Unless otherwise agreed, if either the father or mother seek to take any child out of Australia the parents agree as follows:

   a.So far as practical the occasions on which either parent takes the child out of Australia are to coincide with the child’s school holidays;

   b.The parent proposing to take the child out of Australia shall give the other party as much notification as possible of his or her intention to take the child out of Australia and in any event will give not less than two (2) calendar months prior to the commencement of the relevant school holiday period written notice of such intention;

   c.The parent proposing to take the child out of Australia shall furnish to the other parent as soon as practical (and not less than 28 days prior to the proposed departure),

   i.an accurate itinerary to include a copy of the parent's and child’s airline tickets (if not electronic ticketing),

   ii.the departure date and return date,

   iii.the country or countries the parent and child will be travelling to,

   iv.the approximate date on which the parent and the child will arrive and depart each country; and

   v.a telephone number and address at which the parent and the child can be contacted in each country.

   38. On the occasions that the father proposes to take any of the children out of Australia, the mother shall release to the father within 14 days of that overseas travel the child’s passport for the purpose of such travel, and upon their return to Australia the father shall return each passport to the mother at the very next changeover of the children for the mother to retain in her safe keeping.

   39. Notwithstanding any other order the mother and father not take any of the children overseas prior to December 2016 January 2017 school holiday period.

1. The outstanding issue between the parties was, therefore, parental responsibility. 

2. The father and the Independent Children’s Lawyer sought the following orders in respect of the outstanding issue:

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

4.   That the mother and father shall when each of the children are in Year 5 consult with each other in writing as to their proposals for high school for each such children AND in the event that there is no agreement by the end of Term 3 Year 5 about which high school any of the said children are to attend, the mother and father shall then do all such things to arrange to attend on the Parenting Orders Program (or if not available for this purpose a Family Relationships Centre) to attempt to resolve this issue prior to commencing any family law court proceedings.

1. The mother sought an order in terms of that set out in her case outline document to the following effect:

   1.That the mother have sole parental responsibility for the children in relation to their long term care, welfare and development, such responsibility to include, but not be limited to, issues about:

   1.1        the education of the children;

   1.2the long term health and non emergency medical treatment of the children; and

   1.3any change to the children’s living arrangements that may make it significantly more difficult to spend time with the other parent.

Factual matters

1. By way of background facts:

   a)On [date omitted] 1979, the mother was born and she is currently aged 35 years. 

   b)On [date omitted] 1981, the father was born and he is currently aged 34 years. 

   c)On [date omitted] 2004, the parties married and commenced living together. 

   d)Prior to the parties’ marriage, the mother worked as a [omitted] and holds an Advanced Diploma in [omitted].  The mother is also a qualified [omitted].

   e)The father has, predominantly, worked for himself as a [omitted], and has based his primary business at the premises of [omitted], Sydney. 

   f)During the first five years of marriage, the father and the mother established a successful business partnership called: “[F]”.

   g)On [date omitted] 2005, [X] was born.

   h)On [date omitted] 2007, [Y] was born.

   i)On 25 September 2011, the parties separated. 

   j)On 10 October 2011, the father moved out the former matrimonial home.

   k)In December 2011, the father commenced a relationship with his now partner, Ms T (“Ms T”).

   l)On [date omitted] 2012, [Z] was born.

   m)In February 2012, the father commenced living with Ms T.

   n)In 2012, the mother enrolled [X] and [Y] into [R] School, without the father’s consent or knowledge. 

   o)On 27 August 2012, the mother commenced these proceedings.

   p)On 17 December 2012, interim orders were made to the effect that the children attend [R] School.

   q)On 21 July 2013, the mother and the father divorced.

   r)On 25 November 2013, an application for an Apprehended Violence Order (“AVO”) against the father was heard at the Local Court of New South Wales at [omitted] and dismissed.

   s)On 22 February 2014, [Z] commenced at [A] in [S], and the mother did not involve the father in the decision implementing that.

2. At the hearing, the mother appeared self-represented.  The mother had the benefit of Dr X to assist her as a Mackenzie friend.  The father was represented by Mr Long, solicitor.  The Independent Children’s Lawyer was represented by Mr Sperling of Counsel.

The expert evidence

1. Ms C’s family report (Exhibit “Court 1”) recommends that the parties have equal shared parental responsibility for the children.  The Court has not set out in detail all of the matters in that report as, to a large extent, those matters have now been superseded by the parties’ agreement. 

2. While the report was released to the parties on 12 March 2014, it is relevant that the mother, in terms of a minute of final parenting orders, which was made “Exhibit A”, on 9 July 2014 also sought an order for equal shared parental responsibility.  The minute of order prepared by the mother followed orders made on 22 April 2014, when the proceedings were adjourned to 9 July 2014 for mention and when the Court noted that the matter had been mediated on 15 April 2014 but did not settle and that the parties had agreed to an order that they do all things, reasonably necessary to arrange for Mr H at Relationships Australia to be engaged and to attend a dispute resolution process with him focusing on communication skills and effective communication. 

3. The mother says that she has attended at mediation at Relationships Australia and has been unable to resolve matters.  Of particular significance in the family report is the observation of Ms C, at paragraph 16, which stated:

   That the mother raised concerns that the father constantly harassed her with emails, and telling her how to parent the children which she found intimidating and controlling.

   Similarly, at paragraph 17, Ms C records the following:

   The communication difficulties between the parties are currently extreme.  Each will not take the other’s calls or texts.  Both allege that the other is verbally abusive, and sends abusive text messages.  This prevents the children from speaking to one parent when they are with the other.  The mother alleges that the father will not even look at her during changeovers.  The father said he has adopted this stance on legal advice ostensibly so as not to inflame the situation.

4. The Court accepts that the circumstances surrounding the parties’ separation has caused the mother a great deal of distress.  The mother said: “He had an affair.  I was pregnant.  Of course I was upset.  Who wouldn’t be?”  The mother reported that she felt intimidated by the amount of email correspondence that the father sent her regarding the children.  She felt that those emails were controlling and that they, allegedly, sought to tell her how to parent her own children and, further, she believed that they constituted a form of bullying.  She also believed that the emails were, in fact, drafted by Ms T, the father’s partner, and that made her even angrier.  Ms T gave evidence and was cross-examined by the mother.  The mother showed some annoyance at Ms T and quizzed her over her acknowledged error in the date of her commencement of a relationship with the father (asserted in her affidavit as December 2012 but corrected to December 2011) and in the date of her commencement of cohabitation with the father (from February 2013 in her affidavit to February 2012).  The mother noted that this error had also been advised to Ms C.  The mother challenged Ms T as to how this error may have reflected more positively on her and that given Ms T’s employment, as an [omitted], and her “high powered position” and use of diaries, that such an error in her recollection was unlikely.  Nevertheless, there was no dispute about those dates and nothing, relevantly, turned on that error, in any event.  

5. The father, in the family report interviews, confirmed that it was he who instigated the end of the marriage, and, at the time of the separation, it appeared that he had already “moved on” emotionally, whereas, he accepted that the mother had to deal with her grief and loss of the relationship.  At paragraph 45 of the report, Ms C discusses the issue of parental responsibility:

   The father expressed considerable frustration at aspects of the mother’s behaviour.  He cited the issue of the choice of the girls’ school and the choice of [Z]’s day care, being unilateral decisions by the mother, as being examples of her unwillingness to include him in significant decision-making about the children.

6. At the time of the preparation of the family report, the mother was seeking an order for equal shared parental responsibility.  When Ms C gave her oral evidence she was aware that the mother was seeking a different order, but she still confirmed her recommendation for equal shared parental responsibility.  Ms C did so on a number of bases.  The first was that she considered that both parents were involved in a battle whereby each asserted, as against the other, that they had superior parenting skills.  She said to give one parent a sole parental responsibility order would, accordingly, elevate that parent to the effect that that parent would be then chosen as having superior parenting skills and Ms C was of the view that that would cause further disputation and litigation, and would be contrary to the best interests of the children, as a result.  Significant weight is attached to that. 

7. The family report writer’s observation of the children confirmed, to a large extent, that they had been shielded by both parties from the parental conflict, and what she described as the “toxicity” existing with the parents’ communications.  The mother confirmed in her oral evidence that both parties had been disrespectful to each other and their communications were somewhat toxic, but, otherwise, all of the children were doing well.  Indeed, given that she has been and is the primary carer of the children, she is to be given substantial credit for that position.  The children were happy to engage with the father and his partner, and the Court accepts that they have meaningful relationships with both parents and that the mother has encouraged that position.

8. Ms C confirms, at paragraph 81 of her report, that:

   The lines of communication between the parties had well and truly broken down.  They are now limited to email communication only, and the mother views even this as being intimidating and bullying in its nature which affects her desire to respond to it in a timely way, if at all.

   Ms C records:

   It is not known how the parties would communicate with each other if something serious happened to one of the children.  The father admitted that he does not acknowledge the mother during changeovers which she, understandably, finds infuriating.

   She also notes that:

   While it is understandable and laudable that the father seeks to avoid conflict, particularly in front of the children, his methods are such that they are more likely to inflame the situation than neutralise it.

   Ms C states that:

   There was a need to establish neutral and respectful lines of communication.

9. The mother, further, appeared to Ms C, to harbour a great deal of antipathy towards the father’s partner, Ms T.  Ms C was of the view that this was likely getting in the way of her being able to co-parent effectively with the father.  The children were observed to enjoy Ms T’s company and to respond to her very positively, without needing her to be a replacement for the mother. 

10. The balance of the orders made by the parties in terms of Exhibit “Court 2”, substantially, reflects that position.  Ms C, at paragraph 86, records:

    The capacity of the parties to negotiate and agree on things is currently compromised by their feelings towards each other.  They will probably require expert help to do this, and a counsellor family mediator would assist in that regard.

11. The balance of the recommendations made in Ms C’s report and, indeed, in her oral evidence have been appropriately taken up by the parties in their agreement and the parties are to be congratulated, in that regard.

12. Ms C in her oral evidence, very relevantly, referred to the assistance that the parties may obtain by engaging with the Parenting Orders Program which, as she said, would have a case worker assigned to the parties to assist them in working through their communication issues, and, if appropriate, to assist them reach agreement.  The mother’s view was that there was little likelihood that that would succeed and it was that view which appeared, to the Court, to be the “driver” for her seeking sole parental responsibility.  Nevertheless, with the assistance of Mr Sperling as a neutral party assisting the parties, they were able to reach substantial agreement in respect of a whole range of orders covering schooling, medical matters, restraints on the parties, non-denigration, notification of change of details, live with and time orders, changeovers, special days, communication with the children and passport renewals and overseas travel.  As said, the parties are to be given substantial credit for that.  The Court is of the view that that document, in itself, evidences that the parties do have the capacity to reach agreement with the assistance of a third party.  In those terms, Exhibit “Court 2”, itself, supports an order for equal shared parental responsibility and weight is attached to that.

13. Ms C, in terms of the second basis for her recommendation, stated that she did not believe that the parties’ level of communication, or difficulties around that, was sufficient to remove parental responsibility from the father.  Weight is attached to that view.

14. While Ms C was of the view that the parties had dysfunctional communication, that dysfunctional communication had not adversely impacted on the children.  There had been no evidence that the children’s medical or health needs had not been attended to.  Ms C believed that the communication issues related to the parties’ sense for control over the children whereby they sought to micromanage the other parent’s time, each forming the view that the other was not properly parenting the children.  Ms C’s view was that both parents felt judged by the other, and, when attacked about his or her parenting skills, sought to attack the other by criticising that parent’s skills. 

15. Ms C, in response to the mother’s cross-examination, confirmed that there were no compelling circumstances, in this matter, for the presumption as to equal shared responsibility not to apply.  She said there was no history of violence or mental illness, no drug use, or no issues where a party was living overseas or not able to be in regular contact with the other.  Ms C was of the view that, in this matter, poor parental communication was not, in itself, sufficient to negate the application of the presumption.  The mother put to Ms C various recent Family Institute studies in relation to high conflict and poor communication between parents and adverse outcomes for children.  Ms C agreed with those studies but said that they were relevant where the parties’ conflict and communication issues involved the children or the children were caught up in them.  That was not the case for these children.  The Court accepts that position.  Ms C’s view was that both parties had had some dysfunctional thought processes in relation to their communication, but that this did not amount to a psychosis or a mental illness.  Their thought processes were, simply, how they perceived things and that they were both locked into a pattern of communication which encouraged this dysfunctional thinking process.  Ms C was of the view that the parties needed to break out of that process, through professional assistance.  Weight is also attached to that view.

16. Ms C reiterated that the level of communication between the parties appeared to be based on each party asserting over the other their own standards as a parent, and then being hypercritical of the other parents’ standard in a judgmental way.  For example, the father raised issues concerning mould on the children’s lunch boxes.  The mother raised concerns about the father having protein bars and shakes for the children expressing doubts over their nutritional value and, in particular, a potential use of steroids given that the father was engaged as a [occupation omitted].  None of those matters, relevantly, impacted on the children who were, otherwise, observed to be healthy and thriving and weight is attached to that observation.

17. The mother noted that Ms C’s report was based on the factual histories provided.  The mother said that the father’s factual history had not been honest.  Notwithstanding this, the mother quoted substantial parts of Ms C’s report in her submissions and accepted substantially the recommendations of Ms C. She did not point to any inaccuracy in

    
    

    Ms C’s recording (apart from the dates that she was told by Ms T as to the commencement of her relationship with the father) which, otherwise, undercut the basis of any of her recommendations. The mother was concerned that Ms C had not fully taken into account, factors relevant to “attachment theory” and shared care arrangements.  The parties reached agreement about those shared care arrangements.  The Court is satisfied that Ms C considered those matters in formulating her recommendations. 

18. The mother remained somewhat defensive in her position.  Whilst acknowledging that she had encouraged the father’s time with the children, she asserted that that was because she had acted in that way rather than act so as to keep the children away from the father, which she felt she would have been entitled to do.  Ms C’s view was that the parties would be able to, if they worked at it, improve their ability to communicate.  The mother conceded that, in the sense that she agreed to undertake the process, although she had some reservations as to whether it would be proved ultimately successful.  Ms C’s view was that, unless the parties did that, then there was no likelihood of success.

19. Ms C, further, gave evidence that if there was high conflict then prescribed orders would assist the parties.  Indeed, that’s what the parties have now agreed to in terms of the orders set out in Exhibit “Court 2”.

20. In response to Mr Long’s cross-examination, Ms C confirmed as a third basis that to provide sole parental responsibility in the mother, would likely extend the parties’ conflict and make it more difficult for the parties to reach agreements as it would set one parent up as a superior parent and the other as inferior and, as such, it would be unlikely to assist the parties in the parenting of the children.  Weight is attached to that.

The parties’ evidence

1. Both parties have filed extensive affidavit material. 

2. The mother relied on her affidavit sworn on 25 February 2015 and filed on that day.  Given the agreement that the parties had reached, as set out in Exhibit “Court 2”, the mother was asked to identify the paragraphs of her affidavit material relevant to the issue of sole parental responsibility.  She identified the following paragraphs of her affidavit: 7, 8, 9, 12, 17 to 27, 31, 32, 34, 36, 37, 39, 40 to 48, 50 to 61, 66, 67, 70 to 73, 75 to 84, 95, 102 to 110, 113, 120, 122, 127, 131 and 133. 

3. The mother had, initially, sought to rely on the affidavits of her aunt, Ms H, sworn on 23 February 2015 and filed on 25 February 2015 and her mother from Ms X sworn 23 February 2015 and filed on 25 February 2015. The mother, however, quite appropriately, decided not to read these affidavits given the limited matter now in dispute between the parties.

4. The father relied on his affidavit affirmed & filed on 20 March 2015 on that day (excluding paragraphs 14-19, 21-23, 25-28, 40-46, 64-67, 71, 72, 76-83, 88-96, 102, 103, 106, 107-110, 113-116 and page 19) and his affidavit affirmed on 25 February 2015 and filed on 26 February 2015 (excluding paragraphs 1-8, 14, 19, 22, 27, 32-35, 37-40, 42, 43-62 and 63-67). The father also relied on the affidavit of Ms T affirmed on 2 March 2015 and filed on that date (excluding paragraphs 11-14).

5. Given the limited issue before the Court, namely the issue of parental responsibility, the Court questioned the utility of relying on affidavits by persons other than the parties, themselves.  Parental responsibility relates to the exercise of decision making power by the parents of the children, not other persons who are in the “camps” of the respective parties. Both parties relied on written & oral submissions.  To the extent that their written submissions were prepared prior to the parties reaching agreement, many of the matters referred to therein were superseded by that agreement and were, therefore, no longer relevant.

1. The following documents were tendered as Exhibits:

   a)“Court1”, the family report of Ms C dated 12 March 2014 and released on 14 March 2014.

   b)“Court 2”, the minute of orders proposed by the Independent Children’s Lawyer and consented to by the parties on 27 March 2014, save for orders 2 and 4.

   c)“A”, one page document setting out an agreement between the parties dated 29 September 2010.

   d)“B”, four page document setting out an agreement between the parties dated 1 September 2011.

   e)“C”, a copy of the documents received from the Australian Financial Security Authority dated 10 July 2014 confirming the mother’s bankruptcy made on 7 July 2014 with the Official Trustee as her trustee in her bankrupt estate.

   f)“ICL1”, minute of proposed costs order sought by the Independent Children’s Lawyer.

2. By way of further background, the proceedings between the parties have been longstanding since the mother sought property orders when filing her Initiating Application on 27 August 2012.  The father, in his response filed 5 October 2012, sought, in addition to property orders, various parenting orders in respect of the children, including an order for equal shared parental responsibility.  The mother, in her Reply filed 14 November 2012, also sought a final order for equal shared parental responsibility. 

3. The parents were unable to reach a decision with respect to schooling issues and on 21 November 2012, that matter was specifically listed for interim determination on 17 December 2012, with specific directions for the filing of affidavit material referable to the schooling issues.

4. On 17 December 2012, the mother appeared self-represented and Mr Long, solicitor, appeared for the father.  The Court heard the parties and made an order that, pending further order, the children were to attend [R] School. Further orders were made including the appointment of a conciliation conference on 3 April 2013. 

5. On 3 April 2013, the parties, fortuitously, settled their property dispute, and orders were made by Registrar Crawford on that day.  The parenting proceedings were then adjourned by the Registrar to a date which had been previously fixed by the Court, being 12 April 2013, for further mention.

6. On 12 April 2013, the Court granted leave to Dr X, as the mother’s cousin, to speak on behalf of the mother.  Relevantly, on that day, various consent interim parenting orders were made.  Further, an order was made for the appointment of an Independent Children’s Lawyer for the children.  The interim orders included an order that the children live with the mother and spend defined time with the father.  Further, the Court made an order for equal shared parental responsibility for the children, by consent, of the parties.

7. During the course of the mother’s oral evidence she confirmed that, apart from the schooling issue that had been determined by the Court on 17 December 2012, there had been no matter requiring the parties to come back to Court to have any issue resolved in relation to parental responsibility, since the making of the interim order for equal shared parental responsibility.  Weight is attached to that.

8. The mother’s oral evidence was that the schooling issue, save for the children’s high school education, had largely been determined as all of the school aged children were attending [R] School and that an order had been agreed upon in terms of the consent orders made on 27 March 2015 that [Z] would also attend [R] School, until the conclusion of Year 6.

9. In her oral evidence, the mother confirmed that there was no history in the father not following medical advice and she confirmed that if the children needed medical treatment she, herself, would seek advice and follow it.  The mother’s evidence supported both parties being able to seek medical expertise and advice and to follow that advice, when it was provided.  Both parties should consider ensuring that the children attend the same health service providers so that there is a consistency of knowledge in the children’s health issues and equal shared parental responsibility will provide an appropriate authority for those medical service providers to communicate with each parent as and when that parent wishes.

10. The father and the Independent Children’s Lawyer in seeking proposed order 4, as set out in paragraph 7 above, were looking for a mechanism whereby the parties could seek to reach agreement about the high school education for the children.  The mother was content with the form of that order, save that she said that if there was no agreement arising from the parties’ attendance on the Parenting Orders Program or the Family Relationship Centre, then she sought to have sole parental responsibility for the educative decision, flowing therefrom.

11. The mother may have been under the misapprehension that, by providing a sole parental responsibility order in her favour in relation to any change to the children’s living arrangements that may make it significantly more difficult to spend time with either parent, then that would give her an ability not to comply with the orders made on 27 March 2015, as set out in Exhibit “Court 2”.  The mother acknowledged, however, that those orders were the primary orders, which she would follow.

12. During the course of the mother’s evidence she confirmed that, notwithstanding the words “but not be limited to” in her proposed minute of order, she was seeking sole parental responsibility limited to the issues set out in 1.1, 1.2 and 1.3, as set out in paragraph 8 above. Mr Sperling took the mother to the relevant provisions of the Act contained in the definition of major long term issues in s.4(1) of the Family Law Act 1975 (Cth) (“the Act”) in terms of the following:

    (a)The children’s education (both current and future); and

    (b)The child’s religious and cultural upbringing; and

    (c)The child’s health; and

    (d)The child’s name; and

    (e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

13. The mother confirmed that there was no issue in terms of a religious and cultural upbringing nature which would, specifically, require her to have sole parental responsibility.  The father stated that he was an atheist.  The father, nevertheless, responded that he was hopeful that the parties could better communicate in the future, but that given history that would require a “miracle”.  The mother, whether tongue in cheek or not, cross-examined the father as to his belief in miracles.  The father responded that if he was a Christian, he wouldn’t crucify the children and that his use of the word “a miracle” was a metaphor.  The Court has quoted this exchange to evidence that both parents were intelligent and had the ability to reflect.  Similarly, the mother was content that the children’s surnames would remain “Daly”, and she had no issue with respect to matters relating to the children’s names.  

14. The mother, in her evidence, reiterated what she regarded as the father’s bullying behaviour and financial abandonment of her and the children at, or around the time of, separation.  Notwithstanding this, the mother said that she would seek the father’s input in respect to parenting decisions, but she wished to have the final say. 

15. The mother’s evidence was, to the effect, that she was in a long term lease arrangement with no requirement for her to move away from her accommodation and, therefore, it was unlikely that she would be moving or changing the children’s living arrangements to any effect which might make it significantly more difficult to spend time with the father.  The mother reiterated that the father had financially “strangled” her and that she had not exercised her rights, as she saw them, as a mother, to restrict the father’s time with the children.  Somewhat tellingly, when she was asked why there should be an order for sole parental responsibility made in her favour, she responded: “I need this.”   The mother believed that the father told her what to do and how to do it, but that he had no proactive involvement with the children.  The mother’s needs, however, are not determinative.  It is the children’s best interests and their needs which the Court must focus on as paramount.  The mother’s response was very much in terms of Ms C’s evidence that both parties were seeking to have their particular parenting style validated as the superior one.  For the mother to say that she “needed this” was to reflect that her parenting decision-making would be superior to that of the father’s.  The Court is not in a position to make that decision in the best interests of the children.  The Court is of the view that the evidence does not negate or rebut the presumption and the Court will apply it.  Mr Long put to the mother that, in fact, the father had provided a degree of financial support from the parties’ separation up until the sale of various assets including the payment of mortgage instalments, home insurance, council rates, pest control, lease payments on a motor vehicle until repossession, school fees and health insurance payments.  Mr Long totalled those up in the order of some $120,000.00.  The mother disputed that and said that some of the moneys referred to by Mr Long had come out of her child support and Centrelink payments, that the parties’ properties had been sold and that she had been exposed to claims in respect of unpaid moneys.  The motor vehicle was repossessed and the older child had to leave her private school.  The father’s asserted payments towards the mortgage of $58,400.00 (the house being lost to the parties), $16,427.52 for the Kluger motor vehicle (the car being lost to the parties) and $9,750.00 for [X]’s private school fees (the school being lost to [X]), totalled $84,577.00, being a difference of approximately $35,423.00 from the $120,000.00 claimed by the father.  The mother stated that the father insisted on her paying half of the school fees in circumstances where she did not have the money and that that was the immediate driver for her to source a public school, without engaging, further, with the father, over that issue.  The mother maintained that all of the father’s financial support ceased shortly before the birth of [Z].  Further, the mother said that the father continued to make payments and sought credits in respect of non-prescribed agency payments and her view was that the father was in a much stronger financial position in his new relationship and that she was still suffering, financially, as a result of the parties’ separation.  She asserted that the father was paying $380.00 per month for child support which the father agreed to.  The father was cross-examined by the mother and taken specifically to paragraphs 17-20 of his affidavit and annexure “E”, being a copy of the mother’s Commonwealth Bank Smart Access account in the period 18 August 2011 to May 2012, which the mother said showed total credits of $30,155.89 (including a payment of about $4,500.00 made in the period prior to the parties’ separation) which, she said, included payments made into that account by herself, notwithstanding that they were highlighted as being made by the father.  The father conceded that his affidavit in claiming $90,000.00-$95,000.00 in paragraph 17 had omitted a claim for the payment of approximately $10,000.00, in relation to the shortfall on the parties’ mortgage.  The father also conceded that he had paid his share of the tax debt leaving the mother to pay her share.  The father continued to assert that he had made payments on behalf of the mother and the children which, he said, exceeded $120,000.00 and was, in fact, closer to $140,000.00. There was insufficient financial documentation tendered to enable the Court to determine this position.  Notwithstanding that, its determination is largely irrelevant in respect of the matter the subject of the parties’ present dispute.  The father acknowledged that he had obtained a credit from the Child Support Agency in respect of prescribed non-agency payments which, he said, was in the order of some $8,000.00-$9,000.00 but which had been reduced over time to the present figure of about $3,890.00. 

16. Given the mother’s decisions in respect of the enrolling of the children in [R] School and [Z] in [A] in [S], without the father’s involvement (which she conceded in her evidence) the Court is, further, of the view, that there should be an order for equal shared parental responsibility so as to ensure the mother actually engages with the father, so as to seek to reach agreement about the children’s major long term issues.  The Court accepts the submission of Mr Sperling that this is not a case where no order as to parental responsibility should be made. 

17. The Court, further, considers that the fact that the parents were able to engage in a business for some five years when they were together gives it some confidence that they will be able to engage for the purposes of fulfilling an order for equal shared parental responsibility, once these proceedings are finalised.

18. Many of the paragraphs relied upon by the mother in her affidavit material simply referred to the background of the parties’ relationship, the birth of the children and issues surrounding their separation.  No doubt these were, particularly, painful for the mother as, appropriately, conceded by the father.  The mother, in paragraph 34, refers to the parties having verbal arguments, but stated: “We tried to keep the arguments away from the children.”  Those matters include the repossession of the parties’ motor vehicle and the sale of the home, at a time, when the mother was expecting [Z].  The mother also felt that she was harassed by the father and his partner in sending text messages and photographs of them holidaying in the United States and Mexico, when she was facing extreme financial problems.  The mother felt under threat from the father and his partner, and said, in paragraph 71 of her affidavit:

    As a result of this and the fact that they always refer to me as an unfit and unstable mother I decided to call the SDN Services to ask them to observe my home and interaction with my children.  SDN Services is an early intervention service for family with children between nought and nine years old, and that that service attended, in August 2013, and provided a letter which confirmed to the mother that she was doing a good job with the children and that their services were not required.

19. The father’s posts on his Instagram account showing pleasure at the price of the sale of the family home and forwarding pictures of overseas holidays to the mother did nothing to placate the mother and, to an extent, showed little sympathy for the mother in her then position as having just given birth to [Z]. Similarly, references in communications to the mother being alone and living in a “hot fibro house” at Christmas did not assist in resolving ongoing issues of conflict.

20. In re-examination, the mother asserted that she was, indeed, a good mother.  The mother says that she has promoted the children’s relationships with both parties’ families, including the father’s extended family.  The father conceded that he was estranged from his mother.  There was an exchange between the father and the mother while the father was in the witness box whereby the father queried the mother’s bona fides in arranging for the children to spend time with his mother when it caused difficulties with him being able to communicate with the children by telephone.  The mother’s response was a little unclear but she appeared to be focussed on encouraging some time between the children and the father’s mother as being in the children’s best interests. 

21. At paragraph 102 of her affidavit, the mother says that it is difficult to co-parent with the father because of the restricted communication between herself and the father, but she says that she recognises that:

    The father’s parenting is much regimented and emotionally distant, and that this lack of flexibility makes the co-parenting rigid.

22. However, her affidavit evidence does not, in any way, support how that rigidity impacts on the decision-making.  While she gives examples of this in relation to spend time arrangements those matters have now been, substantially, remedied by the consent orders made.

23. Further, the matters that the mother refers to in paragraphs 53 and 54 above as causing some ongoing dispute between the parties, do not relate, in any way, to the matters covered by parental responsibility, as defined in the Act.

24. The mother cross-examined the father’s new partner, Ms T.  The mother’s cross-examination of Ms T was largely irrelevant and reflected the mother’s hurt and preoccupation with how the relationship broke down.  In this regard, the mother appeared to focus on the date that Ms T entered into a relationship with the father, being a month after the mother gave birth to [Z].  The mother did ask Ms T whether she wrote any of the emails to the mother from the father’s email account.  Ms T denied that she did so but did go on to confirm that, early in the parties’ separation, she did review his emails as, she believed that, the parties’ communication was unproductive and “tit for tat”.  Ms T’s observation of the parties’ communication was apt.

Parental responsibility

1. Section 65D(1) of the Act, provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.

2. Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for the parents to have “equal shared parental responsibility” for the child.

3. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).

4. The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.

5. The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:

   major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a)  the child’s education (both current and future); and

(b)  the child’s religious and cultural upbringing; and

(c)  the child’s health; and

(d)  the child’s name; and

(e)  changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.    [Original emphasis]

1. If the issue is not a “major long-term issue”, then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act). Mr Sperling submitted that the mother may have been somewhat confused about this factor given both parties spent significant time in relation to the evidence concerning lunchboxes, clearly not an area for the exercise of parental responsibility.

1. As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 stated, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally (s.61C of the Act). The effect of an order for equal shared parental responsibility is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.

2. Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently, and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.

3. As a result, if orders are made for parental responsibility to be exercised in different areas so that neither equal shared parental responsibility nor sole parental responsibility is ordered, then parental responsibility must be ordered identifying, relevantly, the areas for the exercise of that responsibility and the manner of its exercise. In those circumstances, it is not then appropriate to refer to the parties having “equal shared parental responsibility” for the balance of the matters, as the phrase “equal shared parental responsibility” is contained in two key sections of the Act (ss.61DA and 65DAA of the Act) and that phrase should only be contained in orders that allocate parental responsibility in relation to making decisions for all, not just some, major long term issues (see Pavli & Beffa [2013] FamCA 144, Watts J).

4. In relation to s.61DA(4) of the Act and whether the presumption has been rebutted, this requires a consideration of the primary and additional considerations under s.60CC(2) and (3) of the Act, as referred to below.

5. The best interests of the children remain the paramount consideration: s.60CA of the Act.

6. The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:

   “(1) The “objects”…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” … are … :

   (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 been 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 a right to enjoy the culture with other people who share that culture).

   (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

   (4)     An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   Section 65DAA(5) of the Act, provides that the Court must have regard to certain specific matters, to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable. Live with and time orders are not the subject of disputation and do not need to be formally considered given the parties agreement, as referred to above.

The s.60CC factors

1. In order to determine the children’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which 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.

   In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b).  See s.60CC(2A) of the Act. 

2. The consent orders entered into by the parties provide that the children live with the mother and spend defined time with the father.  The Court considers that this amounts to substantial and significant time and will facilitate an ongoing meaningful relationship between the parents and the children.

3. There are no allegations of family violence or child abuse in this matter and this factor is not a relevant consideration on the facts of this case.

4. The Court must also have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below.

5. Mr Sperling submitted that there was nothing substantially contained within s.60CC of the Act which justified the making of orders as sought by the mother. The Court accepts that submission, as discussed further below.

(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;

1. In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:

   “There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".

2. Given that the issue for determination relates only to parental responsibility, the Court would not place any weight on the children’s views, in any event.  The concept of parental responsibility is a legal one and there was no evidence that the children have any concept of what it would mean if their parents had equal shared parental responsibility or if the mother had sole parental responsibility.

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

(i) each of the child's parents;

1. The Court accepts the mother’s evidence that she has been the primary care giver for the children since their births, given the father’s role as primary income earner during their relationship and that the parties separated prior to [Z]’s birth.  Further, the Court accepts that the children have a loving, caring and safe relationship with the mother. 

2. The parties have now entered into consent orders which provide for the children to live with the mother and spend substantial and significant time with the father.

1. and other persons (including any grandparent or other relative of the child);

1. The Court accepts that the children have a good relationship with

   
   

   Ms T.  The terms of that are as set out in paragraphs 17 to 27 of Ms T’s affidavit which was not the subject of any challenge by the mother. 

2. Further, while Ms T conceded that she had initially assisted the father settling correspondence to the mother, the Court accepts, in that regard, that she sought to minimise conflict as, she believed, the “tit for tat” arguments were not helpful.

3. The mother was critical of Ms T’s involvement in relation to the father’s asserted return of the children’s school uniforms on a Sunday evening dirty, which then required the mother to wash and clean them, prior to the commencement of school on Monday, the next day.  Ms T agreed with the mother’s position.  The mother’s concern, however, was not put to the father and Ms T’s evidence was that she was unaware of that particular issue.  

4. The mother is to be given credit in relation to fostering a relationship between the children and the father’s parents, notwithstanding that the father’s relationship with them, may be somewhat problematic.  The father alluded in answer to a question in cross–examination to the mother having some ulterior motive, in that regard.  The Court accepts her evidence that she was encouraging the children’s time with their grandparents and with the children’s paternal uncle, Mr D.

(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;

1. The father was cross-examined by the mother about what he would do in the case of any medical emergency facing the children.  His answers were logical and appropriate but critically, he stated: “I would communicate face to face with you… absolutely”. The mother’s response was equally appropriate and acknowledged her desire to do so.   Significant weight is attached to that. 

2. Both parties had difficulties accepting Ms C’s view that they had dysfunctional thought processes, particularly in relation to their interpersonal communications.  The Court accepts the Independent Children’s Lawyer’s submission that an inability to communicate, in itself, is not, necessarily a reason to award sole parental responsibility to a party.  The Court also accepts the Independent Children’s Lawyer submission that sole parental responsibility is not simply a reward for being a primary carer.  Similarly, it is not a punishment in the sense that it is removed from a party against whom it is said, has lied.  The mother submitted that she had been honest and truthful and had included the father within all decisions within “the scope of communication allowed” by him.  The Independent Children’s Lawyer submitted, that as such, the mother may have been motivated by a misinterpretation as to what sole parental responsibility involved.  In this regard, he referred to Exhibits “A” and “B” which referred to “custody” but which the mother put forward as an agreement with respect to parental responsibility.  This is particularly the case, as the Independent Children’s Lawyer submitted both parents were involved in a “tennis match” over their own standard of parenting and were hypercritical of the other parents’ standard.  Nevertheless, the father accepted that both had a part to play in the degree of conflict, while harbouring the view that the bigger part was with the mother.  Similarly, the mother had the view that the bigger part was with the father.  The Court’s view is that it was more than likely equal as between the parties.

3. The mother put to the father that he had recently blocked her telephone number.  The father denied this. 

4. The father conceded that previous issues about the children attending school had subsided and that in 2015, the children had missed minimal school, when in the care of the mother.  The Court notes that the mother agreed that the children had missed some school whilst accompanying a sick sibling, but said that there had been a relatively small number of absentee dates in the 2 year period referred to by the father.  Again, the mother stated that the father did not seek to facilitate or assist her in those circumstances.  The father’s lack of engagement may have been seen by him as a mechanism to reduce conflict.  Clearly, the parties must communicate and reduce conflict so that these administrative and practical matters can be resolved in the best interests of the children. 

5. While the father had some expressed concerns about the mother’s dealing with medical matters, particularly a tonsillectomy and dentistry issues, those matters appeared to be directed at communication rather than the treatment of the medical issues, themselves.  The father seemed to be reliant on the mother doing things and was critical of her failure to communicate.  Mr Sperling cross-examined the father over why he, himself, had not taken a more interactive role, including in offering to take the children to appointments or to pay for interventions, given that he was aware of the mother’s assertions as to her financial circumstances. The father’s position seemed to be adopted for the purposes of limiting any ongoing interaction with the mother.  While that may have been appropriate given, at some point, he was facing AVO proceedings, the parties need to move beyond that, in the best interests of the children. The Court accepts the mother’s evidence that with 3 young children, often one child becoming ill will lead to the others also facing that illness and the father should be alert to that. 

(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;

1. The father agreed that he had never suggested that the mother was a bad mother and stated that he believed she was able to provide for the children’s needs and their stability.  His execution of the documents, being Exhibits “A” and “B”, reflected that understanding.

2. The mother was critical of the father’s level of child support payments, in particular, his obtaining a credit for non-agency payments, shortly after the parties’ separation. 

3. The father should be well aware that making payments which the mother regarded as “rare acts of kindness” should not then be used by him to seek credits for non-prescribed agency payments which would further diminish the money actually paid to the mother to assist in the support of the children.  That has the effect of reversing what the mother sees as an act of kindness. 

4. The mother asserted that the father in failing to provide some financial assistance was emotionally and financially abusing her.  For example, she said that in relation to the former matrimonial home, he stated: “I will buy [her] sorry arse out” and that he was not going to pay “for your mobile phone anymore or car insurance or bills”.  The mother had just given birth to [Z] and pleaded “how am I meant to get my groceries?????” and the father’s response was: “pay for the rego and drive, otherwise order online”.  The mother’s response to that was that she did not then have the money to pay for the car. 

5. The father conceded that his income had fallen from $200,000.00 during the parties’ relationship to $150,000.00, to $100,000.00 and presently stood at $47,000.00 per annum, which he put down to a number of factors. 

6. The father, currently, has a child support credit of $3,890.00 in respect of prescribed non-agency payments and is paying child support for the children at $381.00 per month.   The father acknowledged recently paying for [Z]’s soccer and athletics and the gymnastics fees for the two older children, being in the order of $300.00 per term.  The mother conceded this payment, stating that, it was the first time he had done so.

7. The mother confirmed that her current accommodation was paid for by an anonymous donor through the Christian Baptists Church and it had been paid up until September 2015 and that she had been in that property since June 2013.  The mother also confirmed that if she was to move from that accommodation, she would seek accommodation in close proximity to the children’s school at [R] School, as she was the parent who was primarily responsible for delivering the children to and from school and that if there was any substantial change in that position, she would confer and discuss the same with the father.  The mother is given credit in that position. 

(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;

1. This factor is not relevant given the limited issue for determination. 

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

1. This factor is not relevant given the limited issue for determination.

(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;

1. This factor is not relevant given the limited issue for determination.

(f)     the capacity of:

(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs

1. The Independent Children’s Lawyer submitted that the orders sought by the mother would exclude the father and his capacity to be involved in the children’s lives.  The Court is of the view that the mother’s orders have this potential, notwithstanding her evidence to seek the father’s input.  Further, the mother’s orders have the potential for the father to see himself as the inferior parent and that has the potential to negatively impact on the children through his ongoing relationship with the mother.

2. The father expressed concerns in his affidavit about what he described as the mother’s failure to communicate with him over medical issues.  If a sole parental responsibility order was made in the mother’s favour, the Court is of the view that this would only exacerbate the father’s concerns which would, in turn, have a potential negative impact on his relationship with the children.

3. The father said that he had, recently, spoken to [Z]’s pre-school teacher who had asked his permission for [Z] to play soccer and the father agreed to that and paid for it.  The father acknowledged that he did not communicate with the mother over this, as he assumed that [Z]’s teacher had already done so.  The father conceded that in hindsight he should have communicated with the mother.  The Court reminded both parties that there will be many decisions which will impact on the day to day care of the children.  The children will look to both parents as islands of security and it will be important as the children mature for each parent to have as much information as possible about the children and their everyday needs and experiences.  The parents must improve their communication skills to ensure that these children flourish, rather than simply survive.  They must improve their communication to ensure that the children are protected.  They must be able to discuss what issues arise for the children, including internet exposure and the like.  They must be alert to where the children are spending time, for example at friends’ homes and they must be able to communicate over these types of issues.  The Court accepts that both parents love their children and want the best for them. 

1. The mother cross-examined the father over his occupation as a [omitted] and whether he would give the children steroids.  The father, clearly, indicated that he would not.  The mother expressed relief in hearing that response.  Again, this evidenced the parties’ lack of faith in each other and their need to communicate.  Clearly, both parties accepted that the other would look after the children appropriately.  The issue as identified by Ms C is that each believed that they were the “superior” parent. 

2. The father was concerned as to the mother’s capacity to accept Ms T as the children’s step-mother and believed that she continued to harbour anger towards Ms T.  While the mother’s cross-examination was measured, she did express some antagonism towards her.  No doubt, the mother was of the view that Ms T had been instrumental in the breakdown of the marriage with the father and accused Ms T of some immorality in pursuing her relationship with the father when she had only been married for some 12 months.  The Court notes that Ms T has now been in a relationship with the father for in excess of 3 years and it behoves the mother to take this into account in seeking to improve her relationship with Ms T, in the best interests of the children going forward.

1. 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;

1. This factor is not relevant given the limited issue for determination.

(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.

1. The Court was concerned about two recent events which the mother said caused her some concerns.  However, the mother confirmed that these were the only two incidents of any conflict between the parents in the last 12 months.  The mother acknowledged that she had made no complaint to the father or anyone else after these events.  Both events occurred at changeovers.  One event occurred in the recent torrential rains in Sydney, when the father and the mother had parked in close proximity to each other, outside McDonalds, and the mother had sought to engage the father in transitioning the children directly between their motor vehicles rather than going in to McDonalds. The father had an umbrella but acknowledged that the mother did not.  The mother acknowledged that she had not text messaged the father about any change.  The father had insisted, in the presence of the children, that changeover take place in McDonalds, as he was concerned to ensure that it occurred in a public place with potential witnesses to avoid the history of, what he said, were false allegations made against him.  Both parties’ positions were, otherwise, sensible in that the father was entitled to have the changeover orders complied with.  The mother was also entitled to seek the father’s agreement to a change to reflect the then difficult weather circumstances.  Both parties need to improve their communication to get beyond these difficulties.   

2. Similarly, the mother’s concern at another recent changeover, when she believed the father did not want to come into physical contact with her in implementing a handover of [Z], who was then asleep on the mother’s shoulder.  The handover occurred with the father placing the child on the floor, which then woke the child and caused him some distress, albeit as the father said, not out of the normal range.  Nevertheless, more than likely, a changeover which did not cause that distress would have been more in [Z]’s best interests.  This is again, a matter where the parties should exercise some maturity in their interpersonal exchanges, reflective of how they impact on the children.

3. The Court accepts Mr Long’s submission that, apart from the above 2 incidents, there was little evidence of any other conflict or difficulties between the parties and they appeared to have moved forward in the last 12 months.

(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;

1. The Court finds that this factor does not apply to these children.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Given that the mother was self-represented she was given the opportunity of cross-examining the father.  The Court had the impression of two parties who are struggling to put their history behind them and move on and work together as parents.  In this regard, it was a very unusual spectacle in that both parties referred to each other in the third person despite effectively speaking to each other.  In this regard, the mother asked questions about “Ms Xander” or “the mother”, which was her, when she could have very easily and more clearly said “I” or “me”.  The father responded to answers using the words “the mother”, when he could have very easily said “you”.  This appeared to be reflective of both parties being caught up in the litigation environment. 

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

1. The father was cross-examined by the mother about his fear of physical harm from her.  The father agreed that he had slept in a separate bedroom in the matrimonial home with boxes against the door to prevent the mother coming in, as he said, he was fearful of her.  The father expressed no similar fears concerning the mother and the children.

2. The mother expressed concerns about being in fear of the father.  No such concerns were evidenced in her cross-examination of him. 

3. The mother expressed concerns about what she said was the father “dabbling with the idea during their marriage” of taking steroids.  The mother agreed that the father, to her knowledge, had not acted on that idea.  The mother cross-examined the father about this and he refuted that suggestion. 

4. The Court finds that this factor, relevantly, does not apply to the children. 

(k)     if a family violence order applies, or has applied, (be it final, interim, contested or consented to) 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;

1. The Court finds that this factor also does not, relevantly, apply to the children.  The mother said that she had been advised by the police to apply for a personal violence order against the father and his partner, but that she had not done so.  The mother said that the police had applied for an interim Apprehended Domestic Violence Order against the father which was granted, but subsequently dismissed at the final hearing as she said, there was insufficient evidence provided by the prosecutor.  However, the fact that this factor does not apply to these children lends weight to an order for equal shared parental responsibility.  The parties agree that there has not been any family violence or child abuse.  The crux of the mother’s application for sole parental responsibility is that the parents cannot communicate.  Many separated parents cannot communicate, particularly when they are in the throes of the Court system.   The mechanism provided in proposed order 4 will assist the parties in communicating so as to reach agreement. 

(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

1. The Independent Children’s Lawyer submitted that there has been extensive litigation between these parties, but the parties have reached substantial agreement.  Further, Ms C was of the view that the parties’ communication difficulties could be fixed, if they worked on them. Both parties gave evidence that they were prepared to work on improving their communication and significant weight is attached to that. 

2. The father submits that once final orders are made, it is likely that the parties will abide by them and implement a fixed routine for the benefit of the children. 

3. Once these proceedings are concluded, the Court is of the view that the parents, not fixated on conflict, should be able to exercise equal shared parental responsibility, in the best interests of the children.  The order promoted by the Independent Children’s Lawyer for the involvement of the Parenting Orders Program will provide a mechanism to facilitate the parties’ exercise of equal shared parental responsibility and the Court is of the view that orders to effect the same are those which are the least likely to lead to the institution of further proceedings.   Weight is attached to that.

4. While the mother indicated that she would seek the agreement of the father on all long term parenting decisions, the Court is of the view that if sole parental responsibility was vested in the mother, then that would be a fertile ground for further proceedings involving the children, this was, particularly, the case given her evidence of a lack of any formulated plan as to how she would engage the father in topics that she sought some contribution from him, on.  The Court accepts that it appeared from her evidence that she would tell the father after the event. 

5. The mother, appropriately, conceded that there were currently no long term decisions that would require the exercise of parental responsibility to be solely granted to her.  There were no current educative, health or living issues which were not adequately dealt with by the current final orders.

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

1. The mother’s cross-examination of the father descended at times into a bickering match.  The parties will need to focus on the real issues and not a “tit for tat” criticism of each other’s parenting, in order to move forward in a constructive way for the benefit of the children. 

2. It became clear to the Court, in the mother’s cross-examination of the father, that she believed the father to be a “liar” and untrustworthy and that she was the “good” parent.  The mother also, clearly, had significant resentment and hurt about the breakdown of the relationship.  However, the Court is not satisfied that the mother’s belief that she was the better parent and her belief that the father was a liar, in respect of financial matters, warranted an order for sole parental responsibility in the mother.  As alluded to in the report of the family consultant, both parties need to move beyond their separation and their wrestling for superiority and to focus on the issues here and now and into the future.

3. The mother was somewhat, relentless in her raising issues of a financial and child support nature.  These matters are of little relevance to the question of parental responsibility and once again demonstrate that the parties were unable to move beyond their disagreement and what they perceive to be poor behaviour or untruths by the other party.  Separations involving children are often hurtful and distressing to both parties. However, the Court often observes that the party who instigated the separation has already emotionally moved on and checked out of the relationship, while the other party has yet to process those emotions.  This dynamic was palpable in the mother’s cross-examination of the father.  This is a matter that the mother, herself, needs to work through.  The Court is, however, not minded that this would justify an order for sole parental responsibility in her favour.

4. The mother tendered two documents (being Exhibits “A” and “B”) purported to be agreement between the parties made prior to separation.  The mother drew the Court’s attention to Exhibit “A” and in particular the statement by the father that he would “give [the mother] full custody of [X] … [and] [Y] … and any other children in this union, where by these children will live with her on a full-time basis, [the mother] will allow visitation rights to [the father] as she sees fit too (sic)”.  These agreements are not binding on the Court.  In any event, the Court accepts that the father was not intending, at the time, to deal with any issue of parental responsibility, accepting that the issue of child “custody” as referred to in the agreements, related to a live with arrangement in the mother’s favour.  The father had received no legal advice in respect of the document and, indeed, the first document was signed some 12 months before the parties’ final separation. The father suggested that he had signed the documents to settle the mother’s anxiety and to attempt to reassure her.

Conclusion

1. In terms of s.61DA(2), the Court finds that the presumption will apply in this case, as:

   a)There is no relevant evidence to negate the application of the presumption because of the factors referred to in s.61DA(2) of the Act (being reasonable grounds for the Court to believe that the children concerned have been the subject of abuse or family violence); and

   b)There is no relevant evidence to rebut the presumption as not being in the children’s best interests.

2. The Court accepts that there is no evidence to ground a sole parental responsibility order in the mother’s favour in respect of the specific areas that she seeks.  That in respect of future schooling decisions, further information would need to be assessed with the assistance of the children’s teachers and counsellors.  The Court is of the view that the parents can collaborate and resolve issues, particularly with the assistance of a third party and that the mechanism proposed by the Independent Children’s Lawyer in terms of proposed order 4 will provide that third party assistance.  Further, both parties agreed that since the interim order for equal shared parental responsibility has been operating, their parenting has been smooth and in that regard, it is a predictor of the ongoing prospects of success for it as a final order. 

3. Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the parties shall have equal shared parental responsibility for their children and the Court will so order.

4. The Independent Children’s Lawyer sought, in Exhibit “ICL1”, an order that each party pay Legal Aid NSW the sum of $4,100.00 within 3 months of the date of orders.  The father consented to such an order.  The mother did not.  The mother indicated that she had received confirmation from the previous Independent Children’s Lawyer, Ms Bedford, that she would not be required to make contribution towards any legal fees.  The mother could not locate any correspondence from Ms Bedford to confirm that but indicated that she would forward any correspondence.  That has not been received.  

5. Mr Sperling confirmed that, in any event, the mother could apply for a waiver and if that was granted, there would be no enforcement of any costs order made against her.

6. Mr Sperling, further, submitted that costs should be made in favour of the Independent Children’s Lawyer given the successful role adopted to assist the parties reach the agreement that they did. 

7. The mother submitted that she had been made bankrupt on her own petition as, she said, she was being pursued by creditors in relation to debts arising during the course of the parties’ marriage. The mother was given 7 days to forward a copy of any bankruptcy documentation to the Court and the parties, which the Court indicated would be made an Exhibit, without the need to re-open. The mother did this by way of email dated 7 May 2015 and the documentation contained therein has been made Exhibit “C”. The mother is currently bankrupt and is due for discharge on 8 July 2017. She had creditors totalling $68,635.00 including the Commonwealth Bank of Australia in the sum of $4,950.00, the Deputy Commissioner of Taxation in the sum of $28,589.00, her legal advisors Patrick Lim & Associates in the sum of $20,096.00 and Resi in the sum of $15,000.00. In all of the circumstances, having regard to the current financial position of the mother and s.117(2) of the Act, the Court is of the view that there are not sufficient justifying circumstances to ground a costs order in favour of the Independent Children’s Lawyer and, accordingly, there should be no order as to costs as against the mother.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Associate: 

Date:   14 May 2015