Adamson & Adamson
[2014] FCCA 73
•7 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
ADAMSON & ADAMSON [2014] FCCA 73
Catchwords:
FAMILY LAW – Parenting and property alteration – whether a child should live in [S] or in the NSW Central Coast region – assessment of contribution and future needs.
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 68B75, 79, 90MT, 106A and Part VII
Family Law (Superannuation) Regulation 2001
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
MRR v GR [2010] HCA 4
Stanford & Stanford [2012] HCA 52
Sayer & Ratcliffe [2012] Fam CAFC 209
Muldoon & Carlyle (2002) FLC 93
Ember & Assadi [2013] Fam CAFC 107
Sampson & Hartnett(No.10) (2007) FLC 93-350
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187
Applicant: MR ADAMSON
Respondent: MS ADAMSON
File Number: SYC 5547 of 2011
Judgment of: Judge Altobelli
Hearing dates: 12-14 August 2013, 8 October 2013
Date of Last Submission: 22 November 2013
Delivered at: Sydney
Delivered on: 7 March 2014 REPRESENTATION
Counsel for the Applicant: Mr Maurice
Solicitors for the Applicant: Prime Lawyers
Counsel for the Respondent: Mr Sansom
Solicitors for the Respondent: Crawford Ryan Lawyers
Counsel for the Independent Children’s Lawyer: Ms O’Rourke
Solicitors for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
PARENTING ORDERS
(1)That all previous parenting orders are discharged.
(2)That the Father and the Mother have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).
(3)That the Mother do all things necessary to relocate [X]’s home so that she resides in the New South Wales Central Coast region within a radius not exceeding 20 kilometres from [G] railway station (“the Central Coast area”) no later than 17 January 2015.
(4)That [X] live with the Mother and spend time with the Father as follows:
From the date of the Orders until [X] starts school in 2015 – but has not yet moved to the Central Coast area, at the Father’s residence
(a)Each alternate weekend from 7pm on Friday until 6pm on Sunday; and
(b)During each school holiday period as agreed between the parents but failing agreement in the first half in even numbered years and the second half in odd numbered years, limited to:
(i)Three nights during the first term school holiday this year;
(ii)Four nights during the second term school holiday this year;
(iii)Five nights during the third term school holiday this year; and
(iv)Half the 2014-2015 summer school holidays, taken in one week blocks as agreed but failing agreement during the first, third and fifth weeks of such holidays.
From the date of the Orders until [X] starts school in 2015 and has moved to the Central Coast area, at the Father’s residence
(c)In a two week cycle during the first week, from after kindergarten or day care on Friday until the commencement of kindergarten or day care the following Monday; and
(d)During the second week, from after kindergarten or day care on the Wednesday until the commencement of kindergarten or day care on Thursday; and
(e)During each school holiday period as agreed between the parents but failing agreement in the first half in even numbered years and the second half in odd numbered years, limited to:
(i)Three nights during the first term school holiday this year;
(ii)Four nights during the second term school holiday this year;
(iii)Five nights during the third term school holiday this year; and
(iv)Half the 2014-2015 summer school holidays, taken in one week blocks as agreed but failing agreement during the first, third and fifth weeks of such holidays.
(f)At other times by agreement between the parties.
Additional time [X] shall spend with her Father until [X] starts school in 2015 and has moved to the Central Coast area
(g)On [X]’s birthday, provided that the Father is not working from 12 noon until 6.00pm;
(h)On Father’s day 2014 from 9.00am until 6.00pm;
(i)During the Easter public holiday period from 3.30pm on Easter Sunday 2014 until 6.00pm the following day;
(j)From 3.30pm on 24 December 2014 until 3.30pm on 25 December 2014; and
(k)At other times by agreement.
From the time [X] starts school in 2015
(l)In a two week cycle during the first week, from after school on Friday until the commencement of school the following Monday;
(m)During the second week, from after school on Wednesday until the commencement of school on Thursday;
(n)For half of every Christmas-New Year school holiday period, alternating each year between the first and second half of each period, commencing with the first half in 2015;
(o)For one week during every other school holiday period as agreed but failing agreement during the first week in odd numbered years and second week in even numbered years;
(p)On [X]’s birthday each year, provided the Father is not working, from 3.30pm until 6.00pm if it is a school day, and from 12 noon until 6.00pm if it is a weekend;
(q)On Father’s Day each year from 9.00am until the start of school the following day;
(r)During the Easter public holiday period each year from 3.30pm on Easter Sunday until 6.00pm the following day; and
(s)At other times by agreement.
(5)For the purpose of facilitating [X] spending time with the Father, responsibility for transporting [X] shall be as follows:
(a)For the purposes of these orders, and until [X] has relocated to the Central Coast area, the changeover point is to be the Subway Restaurant, [address omitted].
(b)For the purposes of these orders, and once [X] has relocated to the Central Coast area, the Father shall collect [X] from kindergarten, day care or school (as the case may be) at the commencement of each period and the Father shall deliver the child to kindergarten, day care or school (as the case may be) at the conclusion of each period.
(6)The within 60 days of these orders the parties shall exchange proposals regarding [X]’s treating General Practitioner and the schools she will attend and thereafter will attempt to make a genuine effort to come to a joint decision about those issues. Unless the parties jointly obtain an assessment that [X] is not ready to attend school in 2015, [X] is to attend school in 2015.
(7)That each party shall keep the other party informed in writing of their current employment and hours of work and any changes thereto.
(8)That each party shall keep the other party informed in writing of their current residential address, landline telephone number and mobile telephone number at all times, including periods when they are on holiday with [X].
(9)That the Mother shall provide the Father with copies of all documents in her possession or control relating to [X], including but not limited to: birth certificate, medical records, Blue Book (infant health), vaccination records and records of appointments with paediatricians and other health professionals.
(10)That neither party shall cause [X] to be placed in any child care on a regular basis without the prior written consent of the other party.
(11)That both parents are at liberty to attend all day care, pre-school and school events to which parents are invited.
(12)That the parents shall do all things and sign all documents and give all consents necessary to authorise both parents to access [X]’s school reports, school health records and all other information related to [X]’s education and health.
(13)That the parents shall communicate and keep each other informed in advance about all of [X]’s medical, dental and counselling appointments to enable both parties to attend the appointments should they wish to do so.
(14)That the parents shall communicate and keep each other informed as to any medication taken by [X].
(15)That in the event of [X] suffering any illness, the parents shall communicate as soon as practicable and within 24 hours to enable both parents to participate in decision making about [X]’s care and treatment.
(16)In order to further clarify these Orders and to avoid or minimise issues about implementation the Court orders that:
(a)During school holidays the term-time contact is suspended, and resumes on the first weekend after the resumption of school;
(b)Where changeover has not been specified in these Orders it is to take place at Bunnings Warehouse at [omitted];
(c)Where changeover might involve the mother and father meeting in person the mother is at liberty to send someone in her place, preferably a member of her family known to [X]; and
(d)If [X]’s time with her father coincides with Mother’s Day, such time is to conclude at 6pm on the Saturday evening before Mother’s Day.
(17)That neither parent is to denigrate the other parent, or a member of the other parent’s family or their friends, within the sight or hearing of [X].
Implementation
(18)The parties shall do all act and things, give all consents necessary and co-operate in every way required to fully implement these orders.
(19)Within three months of the date of these orders, the Mother must enrol in and complete a soon as possible thereafter a Parenting After Separation program.
(20)Within three months of [X] relocating to the Central Coast area in accordance with these orders, the Mother:
(a)Must contact the Manager of UNIFAM Newcastle in order to enrol in and complete the “Keeping Contact” program and attend on all appointments as arranged with the staff of that service.
(b)Is encouraged to obtain the counselling and therapy that Dr B recommended for her in order for her to recover from the violence and abuse that she perceives she has experienced.
(21)The parent with whom the child is not living may communicate with her on two occasions per week on days and times to be agreed between the parties but otherwise between 6.30pm and 7.00pm on Monday and Thursday nights to be initiated by the parent calling the residential parent on his or her landline or mobile telephone service or by Skype or Facetime provided such facility is available and the applicable parent is to encourage the child to have a conversation with the other parent.
(22)The Father must notify the Mother by electronic means as soon as he becomes aware that he will not be spending time with the child for any period, as prescribed in these orders.
PROPERTY ORDERS
(23)That within seven days hereof the parties do all act and things necessary to cause the funds held in trust for the parties by [omitted] in a controlled money account with St George Bank to be disbursed in the following manner and priority:
(a)In payment to the Mother the amount of $316,260;
(b)In payment to the Father the amount of $49,680;
(c)The remainder, if any, as to 87.5% to the Mother and 12.5% to the Father.
(24)That a base amount of $77,000 be allocated, as required by s.90MT(4) of the Family Law Act 1975, to Ms Adamson out of Mr Adamson’s interest in the [S] Superannuation.
(25)That, in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:
(a)Ms Adamson is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation 2001; and
(b)Mr Adamson’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of Mr Adamson’s interest in the [S] Superannuation, is correspondingly reduced.
(26)That the trustee of the [S] Superannuation (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulation 2001, the entitlement created for Ms Adamson by Order 26; and
(b)Pay the entitlement whenever the trustee makes a splittable payment out of Mr Adamson’s interest in the [S] Superannuation.
(27)That this order have effect from the operative time and the operative time is the fourth business day after the order is served on the trustee.
(28)From the date of the making of these orders, the Father shall indemnify the Mother against any liability of any nature which the Mother may have at any time arising in any way in respect of the liabilities in the Father’s name.
(29)From the date of the making of these orders, the Mother shall indemnify and keep indemnified the Father against any liability of any nature which the Father may have at any time arising in any way in respect of liabilities in the Mother’s name.
(30)Subject to these orders, the Mother is declared and shall retain, to the exclusion of the Father, the Mother’s assets and financial resources.
(31)Subject to these orders, the Father is declared and shall retain, to the exclusion of the Mother, the Father’s assets and financial resources.
(32)The parents shall do all acts and things, give all consents necessary and cooperate in every way required to fully implement these orders.
(33)In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Adamson & Adamson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIAAT SYDNEY
SYC 5547 of 2011
MR ADAMSON Applicant
And
MS ADAMSON Respondent
REASONS FOR JUDGMENT
Introduction
1.These reasons for judgment relate to a dispute between two married parents. The applicant will be described as the father. He is 47 years old and works as a [omitted] for the [S] Corporation. He lives at [C] on the New South Wales Central Coast.
2.The respondent will be described as the mother. She is 42 years old, lives in [omitted] New South Wales, works part time as a [omitted] and is otherwise primarily responsible for the care of their daughter, [X]. [X] was born [in] 2010 and is, at the time of these reasons, three and half years old (almost four). The parents are unable to agree as to what orders are in the best interests of their daughter [X], and further cannot agree about what is a just and equitable alteration of their property interests under the Family Law Act 1975 (Cth).
Background
3.There is a dispute between the parents as to when cohabitation commenced. The father asserts that they commenced cohabitation in about June 2005, but the mother says the cohabitation did not commence until they married in [omitted] 2006. On both accounts they separated in July 2011. According to the father, therefore, they cohabitated for about six years, whereas the mother asserts they cohabitated about five years.
4.[X] was born in [omitted] 2010. She was 10 weeks premature. She was a frail child and spent 70 days in hospital care including 40 days in a neonatal intensive care unit. She has, nonetheless, developed more than satisfactorily and it is clear from the evidence that she is a beautiful and bright little girl who is much loved by her parents, and by the other adults in her life.
5.When the parents commenced their relationship they both worked at the [S] Corporation and they lived in a property that the mother owned at [U], on the New South Wales Central Coast. There seems little dispute that at this time the mother owned the [U] property, another property in [O] and had superannuation entitlements, a motor vehicle, some shares, minimal savings, and some household furniture. The father was living with his mother in a southern suburb of Sydney. Apart from his superannuation entitlements, he appears to have had minimal other assets. He was previously married and has one adult child from whom he is estranged.
6.During the period that both parents worked at the [S] Corporation they appear to have earned substantial salaries. She left her employment and commenced work at [omitted] shortly before [X] was born. There is a dispute between the parents about the precise circumstances that led her to leave full-time highly paid employment, and move into what was, in effect, casual employment. It is not necessary for the Court to adjudicate on this issue. The strong impression formed is that [X]’s birth, and the subsequent very vulnerable period in her life, was probably the main contributing factor to the mother moving into part-time work. In any event, the parents separated when [X] was about 13 months old, and the mother assumed primary care for [X]. Having regard to all the circumstances, subsequent events provide a more than satisfactory explanation for the mother leaving her employment, and nothing more needs to be said about this.
7.The parents undertook certain renovations and improvements to the [U] property. In December 2006 they bought a property at [W], in Sydney, which was financed almost entirely on the security of the mother’s properties at [O] and [U]. Late in 2007 the [O] property was sold and the net sale proceeds used to reduce the mortgage for the [W] property. A short time later, early in 2008, the [U] property was sold and the net sale proceeds again applied towards the reduction of the mortgage over the [W] property.
8.The [W] property was itself sold in July 2009 and the parents acquired a property at [M] (a nearby suburb) which was their family home up until the time of separation. This property was ultimately sold after separation, on 10 May 2012. It is the net sale proceeds of this property that represents the major joint asset to be divided between the parents.
9.The parents have very different recollections about their relationship. The father’s evidence, in general terms, was that it was a happy relationship which deteriorated towards separation. By contrast, the mother’s evidence is that it was an unhappy relationship in which she suffered abuse from the father. On either account, the separation took place after an incident that occurred on 27 July 2011 which resulted in a final AVO being made against the father at [omitted] Local Court for 12 months, and his conviction on a charge of common assault with the imposition of a good behaviour bond for two years. The mother left the family home and moved to [S] to live with her parents. She continues to live there.
10.During the course of these proceedings the father moved from Sydney where he was living, to [C] where he presently lives. He contends, and this was not in dispute, that he moved to the Central Coast in order to be closer to his daughter, and to thus facilitate spending time with her. In practical terms it is the proposal of both the father, and the Independent Children’s Lawyer, that [X] live in the Central Coast region, specifically within 20 kilometres of [G]. A practical impact of this would be that the mother relocate to the Central Coast area in order to implement this arrangement, and continue in her role as primary carer for [X]. The mother strongly opposes this and proposes that she remain in [S], with [X] spending time with her father.
11.One of the curious features of this case is the dissonance between the Independent Children’s Lawyer’s proposal, and the father’s proposal. The Independent Children’s Lawyer’s proposal is quite clear in stating that if the mother does not relocate with [X] from [S] to the Central Coast region, then the father is to assume primary care for [X], and the mother would spend time with her. That is not the father’s proposal, however.
12.The father’s proposal about [X] living in his full-time care, and spending time with her mother, is articulated at its highest at order 28 of the second amended minutes parenting orders sought by him, and filed in court on 10 October 2013, the last day of hearing. The effect of order 28 is that should the Court determine that [X] live with him he seeks to be heard as to the precise form of orders he would seek in those circumstances.
13.The comprehensive written submissions provided by the father’s counsel dated 22 November 2013 advances this issue no further. The Court can only infer, in these circumstances, that the father does not believe it to be in [X]’s best interests that she live primarily with him and spend time with her mother.
14.In relation to the financial dispute between the parents there is a considerable divergence in their proposals about alteration of property interests, the details of which will be discussed in Part B in these reasons which will concentrate on property matters. Suffice it to say that they have quite different perspectives on assessment of contribution, and of future needs, and whether the Court should adopt a global or asset-by-asset approach, in implementing any division between them.
15.As at 8 October 2013 [X] lives with her mother in [S] and spends time with her father each alternate weekend from Saturday 9 am until Sunday 5pm, at his home in [C], and with changeover taking place at the Subway restaurant at [omitted], a place the parents agree is about equidistant from their respective homes. There are other historical orders made in relation to [X] that are not directly relevant in the present context.
Orders Sought
16.The orders proposed by the Independent Children’s Lawyer are reproduced in the first schedule of these reasons. In short, the Independent Children’s Lawyer propose that the parents have equal shared parental responsibility and that [X] live with her mother unless she fails, within three months from the making of orders, to give to the father notice in writing of her relocation with the child to the New South Wales Central Coast within a radius not exceeding 20 kilometres from the [G] railway station, in which case [X] must live with the father. The proposed orders then describe the respective arrangements for [X] to spend time either with her father if she lives with her mother, or with her mother, if she lives with her father.
17.The father’s proposal for [X] is contained in a document entitled Second Amended Minutes of Parenting Orders filed in Court on the last day of the hearing, 10 October 2013. He too proposes equal shared parental responsibility. But he seeks an order that both parents relocate to reside on the New South Wales Central Coast within a 20 kilometre radius of [G] railway station, no later than 30 days after the orders were made. He then proposes that [X] continue to live with her mother, provided she complies with the order to relocate, and he then proposes an arrangement for [X] to spend time with him. As mentioned above, however, he does not go on to articulate a proposal for [X] to live with him, if the mother does not comply with the orders.
18.The orders sought by the mother are contained in a minute of order, also filed in Court on 8 October. She too proposes equal shared parental responsibility and that [X] live with her. She then describes a proposal for [X] to spend time and communicate with her father.
19.The minute of order proposed by the father is reproduced in the second schedule to these reasons, and the mother’s order in the third schedule.
20.The proposals that each parent makes in relation to property will be discussed in Part B of these reasons. Part A will focus on parenting issues.
Part A
Issues – parenting
21.In relation to the orders that are in the best interests of [X], it is convenient and logical to describe them by reference to various sections in Part VII of the Family Law Act 1975. It is trite to say that this Court must decide whether [X] should live with her mother in [S], or on the Central Coast, and then the time that [X] should spend with her father in these scenarios. The Independent Children’s Lawyer invites the Court to consider whether [X] should live with her father on the New South Wales Central Coast if the mother chooses not to re-locate from [S]. The Court declines to accept this proposal for the following briefly stated reasons. Firstly, it is not a proposal advanced by the father who is the parent who, on the Independent Children’s Lawyer’s proposal, would carry the responsibility as primary carer for [X]. In these circumstances, to impose this obligation on the father is hardly child-focused. His enthusiasm for the idea could be described, at its highest, as lukewarm and, in reality, in evidence he quite clearly felt that such a proposal was not in [X]’s best interests. Secondly, however, the proposal that the father assume primary care of [X], on any scenario, was not supported by the Court appointed expert, Dr B. Thirdly, and self-evidently, the mother strongly opposes the idea. The Independent Children’s Lawyer’s proposal that [X] live with her father can, therefore, and in the unique circumstances of this case, be summarily dismissed. It is not an option, and therefore it is not an issue for determination, that [X] live in the full time care of her father.
22.The case was conducted by both parents, and the Independent Children’s Lawyer, on the basis that there were no issues about [X]’s meaningful relationship with either parent, and there were no issues about protecting [X] from any form of harm. The Court independently agrees that these are not issues for determination. In other words, [X] will continue to enjoy a meaningful relationship with her father on any of the proposals that have been advanced to the Court. Furthermore, none of the evidence before the Court, including evidence about family violence to which reference will be made below, raised issues about protecting her from any form of harm.
23.The case was conducted on the basis that [X]’s views were not relevant, and that she enjoys a good relationship with both her parents and the other significant adults in her life, particularly the maternal grandparents. The Court agrees with this. There is no evidence to suggest anything to the contrary. Indeed, one of the encouraging features of a case that is otherwise marked by low levels of trust and communication, and moderate levels of conflict, is that the history of [X]’s contact with her father since separation, as problematic as the father may perceive it to be, has not in any way detracted from the parents’ and Dr B’s view that [X] has an excellent relationship with him.
24.Moreover, there is no issue between the parents about the maturity, sex and lifestyle of either the parents or [X].
25.There are some other obvious non-issues. All parties propose equal shared parental responsibility. There is no issue about the extent to which a parent has fulfilled their obligations to maintain [X]. Neither party proposes equal time. The father having re-located from Sydney to the Central Coast the issues about travel time associated with contact are reduced. There is no longer an issue about the father’s work roster. Both parents conducted their case, and freely acknowledged in evidence, that the communication between them is poor (at best) or non-existent (in reality). The lack of trust between these parents was patently obvious from the evidence, and is a fact that the Court must work with.
26.It is also patently obvious from the evidence of the parents, and not seriously put in dispute by either, that changeovers are potentially fraught with difficulty, are tense, and there is potential for conflict to which [X] is routinely exposed. Curiously, and notwithstanding the self-evident fact, the mother’s proposal continues to contend for a scenario at change-over in which the parents would come into physical proximity with each other.
27.Having regard to the above, the other issues in this case are as follows:
a)Credit issues of the mother, the father, the maternal grandmother, and the witness in the mother’s case, Ms D. Regrettably, it is necessary for the court to make findings about whether the evidence that each witness gave in relation to specific issues, is truthful or not.
b)The extent to which each parent has taken, or failed to take, opportunities to participate in decision making, to spend time with [X], or to communicate with her. Thus, for example, the father contends that the mother has made decisions about [X] and not involved him. The mother contends that the father has failed to take opportunities to spend time with [X] unreasonably.
c)The likely effect of changes in [X]’s circumstances, including the likely effect on her of separation from her parents, or other significant adults.
d)Issues of practical difficulty and expense, primarily arising out of the geographical distance between [S] and [C].
e)The capacity of each parent to provide for [X]’s emotional needs, particularly in terms of fostering and encouraging relationships with the other parent.
f)Attitudes to [X] and to the responsibility of parenthood, demonstrated by each of her parents.
g)The family violence that the mother alleges the father perpetrated against her and in particular whether the mother’s self-portrayal as a victim of violence who is fleeing the same is one supported by the evidence. This consideration will also take up the issue of the family violence order that was made.
h)Making an order that is least likely to lead to the institution of further proceedings.
i)Whether the orders proposed are for substantial and significant time, and whether those orders are reasonably practical and in [X]’s best interests, as required by legislation.
j)Another issue that emerged during the course of the evidence was whether [X] should start school in 2015 as proposed by her father, the Independent Children’s Lawyer and Dr B (albeit with some reservation) or 2016 as proposed by the mother.
The evidence
28.In the father’s case, he relied on the following affidavits:
a)Father’s Affidavit sworn 1 August 2013
b)Father’s Affidavit sworn 14 April 2012
c)Father’s Affidavit sworn 8 August 2011
The father gave evidence and was cross-examined.
29.In the mother’s case, she relied on the following affidavits:
a)Mother’s Affidavit sworn 25 July 2013
b)Mother’s affidavit sworn 8 August 2013
c)Affidavit of Mr R sworn 25 July 2013
d)Affidavit of Ms D sworn 5 August 2013
The mother, the maternal grandfather and Ms D each gave evidence and was cross-examined.
30.In the Independent Children’s Lawyer’s case, Dr B’s report annexed to his affidavit sworn 20 August 2012 was in evidence and he was cross-examined by the parties.
31.In addition, a number of documents were tendered in evidence and, where relevant, specific reference will be made to these documents.
Applicable law
32.In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
33.The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(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.
34.At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
35.If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
36.Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a 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.
37.In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
38.A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).
It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
39.This is a case where one of the orders sought in relation to the child may involve the child relocating from one geographical location to another. The Court must consider proposals advanced on merit, in accordance with the prescribed legislative pathway: Sayer & Ratcliffe [2012] FamCAFC 209 at [47]-[48]. The focus must always be on the best interests of the child, and whether it is better for the child to live with a parent in one location or another: Muldoon & Carlyle (2002) FLC 93-513 at [91]. In some cases the issue is whether a parent can be ordered to move from one place to another. The Court has power to make such an order: Ember & Assadi [2013] FamCAFC 107 at [55]-[60] citing Sampson & Hartnett(No.10) (2007) FLC 93-350. The Court’s power in this regard is found in ss. 65D and 68B of the Act.
Credit issues
40.
The father, for the most part, was an impressive, sincere witness. Notwithstanding the thorough and persistent cross-examination by
Mr Sansom, counsel for the mother, he was consistently cooperative, and responsive. He was gracious and generous in his descriptions of the mother’s parenting of [X] and [X]’s need for and relationship with her mother. He was insightful about the communication issues that he has with the mother, appeared to accept that he was at least partly a contributor to this problem but felt largely helpless in terms of solutions. The father’s demeanour was at all times appropriate.
41.The mother’s evidence was quite problematic at times. She was frequently unresponsive, and sometimes uncooperative in cross-examination. At times, the manner in which she gave evidence suggested that she was somewhat distant, or disengaged, with what was happening around her. Her affect was flat, a matter acknowledged by Dr B. This Court openly acknowledges the danger in making adverse credit findings of a witness solely based on demeanour: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187. The concerns about the mother’s credit go much further in this case. For example, her evidence about the date of cohabitation was unconvincing and was clearly inconsistent with earlier evidence that she had given, instructions she gave for a letter to be sent by her solicitor, as well as business records: transcript 13 August 2013 pp.6-8. The inference the court draws from this is that she was seeking to minimise the length of the relationship on the basis that it would somehow benefit her case.
42.The mother had little, if anything, positive to say about the father. She minimised any contribution he made during the relationship and only begrudgingly conceded the positive role he might play in [X]’s life: transcript 13 August 2013 pp.8-14. This Court has real concerns about the mother’s evidence about family violence and in particular the event that precipitated separation in July 2011. Apart from the fact that her oral evidence about this was glib and unconvincing, as will be discussed in these reasons below, her evidence was inconsistent in important respects. It’s not that the evidence does not establish any basis for the AVO and the criminal charge against the father. Far from it, as the evidence before this Court amply demonstrates why the AVO was imposed, and why the father was convicted of an assault, but put on a good behaviour bond. Rather, the concern is about the mother’s embellishment of these events and the inference that is drawn that she did so in order to somehow benefit her case. It is indeed somewhat ironic in these circumstances that her case before this Court was presented on the basis that there are no issues of risk to [X]. Regrettably, and as it turns out by reference to the evidence that will be discussed below, the mother’s unreliability as a witness leads to the Court not only not accepting her premise that she was a victim of abuse who continues to suffer the consequences of the same, but also that she is quite disingenuous and opportunistic in her portrayal of herself as a victim, in the hope that it would advance her case. Another reason for the Court to be concerned about this is the blatant inconsistency between the mother’s case about violence and her apprehension of the father, but nonetheless consistently advancing proposals to the Court that would inevitably result in the two of them coming into contact with each other.
43.The mother did her credit a great disservice by failing to provide to the Court disclosure about her working hours and income from [omitted]. This failure is particularly acute in circumstances where the proceedings were part-heard between the third and the final day, over a period of months, so that she had ample opportunity to get evidence which one would have thought was conveniently available to her.
44.The last issue of concern about the mother’s credit relates to the inconsistencies between her evidence, and her own father’s evidence about his illness. She said that her father had both prostate cancer and bowel cancer, but her father made it very clear that he had only been diagnosed with prostate cancer which he himself described as low grade, and had not been diagnosed with bowel cancer. Moreover, her evidence was that these diagnoses had caused her parents to reconsider their already stated plan to relocate from [S] to the Central Coast which was in contrast to her father’s evidence that was nowhere near as clear or as dogmatic as she would have the Court believe.
45.Regrettably, this Court finds the mother to be an unimpressive and unreliable witness who is prepared to say things in the hope that it would advance her case, and to say those things either intentionally knowing them to be untrue, or with reckless indifference as to whether it was true or not.
46.The maternal grandfather also gave evidence. He was truculent, frequently uncooperative, and generally argumentative. He was fiercely protective of the mother, his daughter. He presented as having a loathing for the father that was almost comparable to that held by the mother. He could not explain to the Court’s satisfaction why in his affidavit of July 2013 he described himself as being in good health when he already knew he had been diagnosed with prostate cancer. The only inference that can be drawn in circumstances where there was no further evidence about his health, despite the proceedings becoming part-heard, is that whatever concerns he himself had about his health are such not to inhibit his capacity to support the mother and [X] in financial, practical and emotional ways.
47.By no means does the Court discount all of the maternal grandfather’s evidence. Where the Court needs to be wary about his evidence, however, is in relation to whether his health issues are such that would cause him to reconsider his already stated plans to relocate to the Central Coast to occupy a property he owns at [E] but which is currently occupied by another one of his daughters who is building elsewhere in the area. The maternal grandfather’s commitment to the welfare of the mother in these proceedings, and [X], and indeed his family generally is impressive. The impression formed by the Court is that he will do whatever he possibly can to support [X] and her mother, whether that be in [S] where they currently reside, or on the Central Coast.
48.Ms D swore an affidavit on 5 August 2013 and was cross-examined during the hearing. She gave evidence about problematic changeovers that took place at the mother’s place of work. There is absolutely no reason to doubt the veracity of Ms D’s evidence. At the changeovers that she observed, the father was clearly angry and non-communicative and acted inappropriately. The Court does not accept the father’s denial of these events. One notes, however, that it is quite clear, as previously indicated, the changeovers are highly problematic for the parents.
49.Finally, in relation to credit, counsel for the father submits that the Court should draw adverse inferences in relation to the mother’s failure to call the maternal grandmother, and her two sisters, both of whom live on the Central Coast of New South Wales. He submits that the maternal grandmother ought to have given evidence to support the claims made by the maternal grandfather in relation to health issues, and a change in their plans to relocate to the Central Coast. Moreover, he submits that the maternal aunt who currently occupies the maternal grandparent’s home at [E] ought likewise to have been called to give evidence on the topic. There is substance in counsel’s submissions.
50.As at the close of day three of the hearing, on 14 August 2013, it should have been apparent to the mother and those advising her that there were glaring gaps in their evidence that could have been filled, at least in part, by evidence from the maternal grandmother, by at least evidence from the maternal aunt in occupation of the home at [E], and by further evidence from the maternal grandfather. The hearing did not resume until 8 October 2013, nearly two months later. In the circumstances the Court accepts counsel’s submission that these witnesses were not called because their evidence would not assist the mother’s case.
The Expert Evidence
51.The affidavit of Dr B sworn 20 August 2012 annexes his family reported dated 8 August 2012. The report follows a familiar format. He interviewed both parents and observed [X] with each parent. In addition he administered standardised assessment tools. Much had changed, however, between the interviews conducted in July 2012, and the final hearing. [X] was at least one year older and had thus progressed in a developmental sense. The father had relocated from Sydney to [C]. Moreover the father had changed the nature of his employment from a roster to regular weekday working hours. The last two factors in particular make some of the issues discussed by Dr B somewhat redundant by the time he gave oral evidence. He was apprised of all the relevant developments. The discussion of his report will, therefore, be limited to the relevant discrete issues in respect of which the court needed to adjudicate at the final hearing.
52.At a number of different points in his report, Dr B records statements of both parents, as well as his own observations, of the communication difficulties between the parents. As previously noted, that is indisputably the case.
53.In relation to the mother, at paragraph 29, Dr B notes: “She presented as softly spoken with an apparent defensiveness, advising ‘it’s in the notes’ (gesturing to the subpoenaed files) or responding ‘next question’ in preference to answering questions directly.” His observation of the mother is by no means inconsistent with the Court’s own impressions of the mother, which are noted in the context of credit issues.
54.At paragraph 32 Dr B records the mother’s description of her marriage as “long, unhappy and lonely” where the father would often “verbally abuse or ignore me.” The mother was challenged about this in cross-examination and confronted with the father’s evidence of the 34 cards that she had written to him over the course of their relatively short relationship, and which contain messages from her that are clearly inconsistent with her description of the marriage as “long, unhappy and lonely”. In cross-examination she agreed that she had sent those cards over the course of the whole marriage i.e. over several years.
55.When it was put to the mother in cross-examination that what she told Dr B, and which is recorded at paragraph 32 of the report, is completely untrue, she denied the same. She also denied saying those things to Dr B in order to cast the father in a bad light. As with much of her evidence, the Court finds that the mother was quite unconvincing in her denials either about the veracity of what she told Dr B, or of her motive for doing so. She might have been attempting to manipulate Dr B’s impression of the father. She might have simply been trying to manipulate the father’s affections during the relationship. There might be some other explanation. But whatever the truth actually is, her representation of the relationship to Dr B as “long, unhappy and lonely” reflects poorly on her, and not on the father.
56.At paragraphs 42 and 43, Dr B discusses the joint interview between the parents, under the heading “Parental alliance”. He states that:
A brief joint interview was conducted by the clinician with Mr Adamson and Ms Adamson to gauge their capacity to communicate and ability to cooperate effectively. Throughout the assessment process Mr and Ms Adamson did not directly acknowledge nor communicate with each other. Between individual interviews,
Mr Adamson entered the room where [X], Ms Adamson and her father were waiting. [X] smiled and moved towards Mr Adamson. After picking her up, Mr Adamson promptly turned his back to
Ms Adamson and her father and focused his attention on [X]. There was no verbal exchange or acknowledgement between Mr Adamson and Ms Adamson or her father.
Both Mr and Ms Adamson agreed to a joint discussion at the conclusion of the assessment for the purposes of evaluating their capacity to communicate and cooperate. Mr Adamson politely and briefly greeted Ms Adamson after entering the room. Ms Adamson politely and briefly greeted Ms Adamson after entering the room, who returned the greeting. During this joint interview, both parents agreed they were interested in pursuing future mediation (of some form) to improve their communication and cooperation, with both individuals expressing that this was in the [X]’s best interests. With prompting from the clinician, Mr Adamson attempted to change his style of communication with Ms Adamson. At the conclusion of the interview, initially Mr Adamson stated ‘we must get on this Ms Adamson’ in a forceful tone, however after prompting, again from the clinician, reframed this to ‘I’d like to make a change’ in a more appropriate and communicative tone.
57.On the one hand, the parents’ inability to communicate and cooperate is a matter of uncontested fact in this case. In this regard, these paragraphs add little to the sum of knowledge in relation to the family. The father’s behaviour, however, firstly in turning his back to the mother and secondly speaking “in a forceful tone” to the mother, suggests that the father lacks insight into his own behaviour and may well have had a domineering style in the relationship.
58.Dr B’s observations of the father, mother, and [X] interacting with each other were quite positive and thus it is no surprise that the parents presented their case on the basis that each has a good relationship with [X]. Indeed, at paragraph 48 Dr B described both parents as “functioning parents who appear capable of providing adequate for [X]’s developmental needs.” He noted the absence of any risk of harm for [X]. He expressed concern at paragraph 49 about the level of acrimony between the parents. He himself recommended, whilst noting that it seemed (at the time) that the parents agreed that the mother should continue to be the primary caregiver for [X]. At paragraph 54 he adds: “That said, it is in [X]’s best interests to continue to spend a significant and substantial period of time on a regular basis with Mr Adamson.” He discussed the importance, based on the available research, of [X] forming attachments to her father during a critical stage of her development.
59.Commencing from paragraph 57 of his report, Dr B outlines three options.
60.The first option is somewhat moot, given that it is no longer the father’s proposal and he has, in any event, himself relocated to the Central Coast. That option was that the Court order [X] to be returned to Sydney. At paragraph 57 he discusses the advantages, and disadvantages of this option and ultimately concludes that “This option is essentially untenable for Ms Adamson and subsequently for [X]’s general wellbeing.”
61.
At paragraphs 58 and 59 he discusses the second option – that [X] continues to reside with her mother in [S]. He observed that this would preserve the status quo, allow the mother to remain in a supportive family environment, but limits the opportunities for the father to spend time with [X] because of travel time. Again, this option is somewhat moot in view of the father’s relocation to the Central Coast. What is significant, however, is that the mother has clearly stated a desire to
Dr B to move into her own residence, independent of her parents, at a place which was to be determined based on where she can obtain secure work. Dr B’s recommendation at paragraph 59 was that consideration must be given to the travel distance for [X] and that, ideally, the mother should not move further away from the father than the distance that existed at that time between them.
62.The third option is discussed at paragraph 60 and 61 of his report. On this option the father would relocate geographically closer to [X] whilst still retaining his current employment. Dr B records that the father told him he would be willing to relocate to the Central Coast in order to significantly decrease the travel time for [X], and increase opportunity for contact. Dr B saw obvious advantages in this option which would “provide considerable benefit to [X]’s physical and psychological wellbeing, thus highlighting its desirability in the current circumstances.”
63.What is clear from the evidence is that the father took on board Dr B’s recommendation and carried out what he said he might do by both rearranging his employment away from shiftwork, and relocating from [M] to [C].
64.At page 17 of Dr B’s report he makes the following relevant recommendation, under the heading “Significant and substantial time”:
·
That [X] continues to live with Ms Adamson on a full-time basis in [S], pending relocation for Ms Adamson’s future employment – but that to be no further from Mr Adamson’s residence than is currently the case. It is recommended
Mr Adamson further investigate relocating to a geographically closer point, as per his suggestion, to facilitate increased visits with [X] and significantly cut down on the child’s required travel time.
· That visits between [X] and Mr Adamson occur frequently on (at the very least) alternate weekends, with the majority of visits taking place near [X]’s current residence in [S] to minimise disruption to her routine.
· Presuming that the Court will consider Final Orders, that an increasing regime of contact be incorporated for future years. Both parents agree that [X] can have “sleep-over” contacts from age three, and it is suggested that these commence in 2013 and increment by a night each 6 months, culminating in at least a 11/3 or 10/4 ratio per fortnight once [X] reaches kindergarten age, with 50% of gazetted holidays shared (but in periods of not more than 7 days alternating). That is on the presumption that the existing geographic distance between the two parents continues. In the event either party relocates closer, then it could be considered sufficient to trigger an increase in the frequency of current weekend contacts, and also the suggested fortnightly ratio as proposed above.
65.Given the significant delay between the date of release of the report, and the final hearing, one would have thought that the parents had a more than adequate blueprint for resolving the outstanding issues, with the benefit of the professional involvement of their respective lawyers, and the Independent Children’s Lawyer. Regrettably, that was not the case. Not even the father’s subsequent relocation to [C], and the significant change in his work hours, precipitated some form of compromise between them. The evidence seems to suggest two significant issues: firstly, the mother was not prepared to move from [S] and, secondly, the mother’s proposal for [X] to spend time with her father, including overnights, was “conservative” to use the term expressed by Dr B in his oral evidence.
66.Dr B gave oral evidence twice, on day 3 of the hearing, and then on day 4, several months later. The Independent Children’s Lawyer explored with Dr B the benefits to [X] of her relocating to the Central Coast together with her mother. In short, he opined that there were “multiple layers of positive” associated with such a proposal. There were the benefits to [X] of being able to continue and grow her relationship with her father, whilst not excluding her relationship with the maternal grandparents, who clearly play an important part in her life. Importantly, however, he thought that there were significant benefits to the mother and that increased time between [X] and her father would give her some respite from being a single parent. Dr B was asked whether there was anything in the mother’s parenting style that was relevant to the issue of supporting her as a parent. He thought there was. He was of the view that the mother was stressed by the parenting of [X] and he provided two examples of this. He referred to the documents produced by [T], which indicated that she had yelled at [X] when she was only 12 months old. It is interesting to note that one of the father’s concerns about the mother was that she yelled at [X]. Moreover, the mother herself agreed in cross-examination that she had told the workers at [T] that she had yelled at [X] many times, even though she had previously denied this in cross-examination and was insistent that even if it had happened, “It was not a habit.”
67.The second basis for Dr B’s opinion that the mother was stressed by the parenting of [X] was her response to [X]’s behaviour after her first overnight contact with the father. Dr B explained that [X] being unsettled after her first overnight with her father was a normal reaction, and the concern was the mother’s response, indeed, overreaction to [X]’s behaviour. Dr B was particularly concerned at the mother’s own evidence about this issue, found at paragraph 11 of her affidavit sworn 8 August 2013, in which she discusses [X]’s reaction to her first overnight with her father. At paragraph 11 she describes [X]’s behaviour that might be characterised as upset and aggressive, including pulling over a pot plant and destroying the plant. The mother deposes:
After [X] had damaged the pot plant, I opened the door and I said to her: words to the effect of ‘you can stay out here until you calm down and stop crying and yelling, then you can come to the door and say sorry to mummy and nana, before you come back inside.’ As [X] was outside the glass doors, I was able to observe her until such time as she had calmed down.
Dr B was clearly concerned about the mother’s reaction and that [X] was likely to interpret her mother’s actions as a physical rejection at a time when she was seeking nurture and affection, rather than anger and rejection. Thus, Dr B concluded that the mother continues to express stress associated with care giving and needs the additional support that would be provided both by the continued involvement of the maternal grandparents in [X]’s life, as well as a greater involvement by the father. Dr B made it quite clear that [X]’s response to her first overnight contact, if one accepts the description given by her own mother, was quite normal, and it was the mother’s response that was abnormal.
68.Dr B was stridently opposed to postponing the commencement of overnight contact for a further period of time, a matter that the mother was clearly agitating for during the course of the hearing. He otherwise supported an incremental approach to increasing time, including overnight time.
69.He was of the view that if the maternal grandparents relocated from [S] to [E] (a matter in respect of which the Court will make findings) there was no benefit whatsoever to [X] in the mother not also moving. He described this loss as “another layer of loss or grief” for [X]. He was then asked to express an opinion about a scenario where the maternal grandparents changed their mind and decided not to relocate to [E] (a suburb on the Central Coast) and what, if any, were the benefits to [X] in her mother moving nonetheless to the Central Coast. Dr B was of the view that if both parents relocated to the Central Coast he would expect the maternal grandparents to remain actively involved in [X]’s life, even if they chose to remain in [S]. In other words, the resource offered by the grandparents would not be lost and hence there would still be benefits to [X] that would be greater than the mother remaining in [S]. As it turns out, based on the evidence of the maternal grandfather the Court accepts that Dr B’s assumption of the grandparents’ continuing support and active involvement in the mother and [X]’s life, wherever they lived, is in fact correct.
70.As previously mentioned in these reasons, Dr B described the mother’s approach and reluctance about overnight time as being very conservative and, indeed, likely to continue. He was concerned about the potential adverse impacts on [X] of this.
71.As could be expected Dr B was carefully cross-examined by counsel for the mother. Nonetheless, he stridently rejected the proposition that [X] was not ready to cope with an increase either in the frequency of time with her father, or overnights. He accepted that there was acrimony in the relationship, which often manifested itself at changeovers, and acknowledged that the father still had “a way to go with this.” He acknowledged that on a scenario where the mother relocated but her parents did not there was a risk of her being isolated. It was put to him by counsel that if the mother was ordered to live in the Central Coast region it would force her to live near to her abuser, and would be a loss of control of her life. Dr B’s response was that the father was her “perceived abuser” and that the focus should be “to stop her feeling so powerless.” He acknowledged in evidence that the Central Coast region was a large area, and there was no need for the parents to live in the same suburb.
72.Dr B continued giving evidence on the last day of the hearing, and he was indeed the last witness. Thus he had available to him all of the proposals advanced by the parties including the Independent Children’s Lawyer, as well as all of the affidavit evidence available to the Court by the close of the evidence. By that time, the issue of when [X] should go to school had crystallised with the father proposing 2015, and the mother 2016. He was tentatively of the view that, having regard to [X]’s age and development as observed by him, she should go to school in 2015. However, if the parents were still in doubt about this, they could agree to have [X] assessed in terms of her readiness for school some time in 2014.
73.In terms of the most appropriate parenting orders, he emphasised again that an incremental approach should be adopted, particularly in terms of overnights and the length of [X]’s stays with her father. He thought the father’s proposal, for example, was too much too soon. By age 4 he thought [X] would be able to cope with up to two to three overnights time with her father fortnightly, especially if it was sensitively implemented by him. By 2015 or 2016, whenever she attends kindergarten, her time with her father could extend to Thursday after school to Monday before school. He emphasised that [X] would benefit enormously from changeovers taking place at school, and that the parents themselves would benefit from this as they would not have to experience the stresses of changeover. The Court’s impression was that Dr B was somewhat befuddled by the mother’s own proposal to continue face to face changeovers. His concern was that if the conflict continued at changeovers, [X] would begin to internalise responsibility for her parents’ conflict, and that this would result in acting out behaviours.
74.He agreed with counsel for the mother that there was reason to be concerned that the level of acrimony had not dissipated notwithstanding the many years since separation. He agreed that the acrimony was manifested both passively and actively, both of which were detrimental to [X].
75.At one point in cross-examination by counsel for the mother, it was put to Dr B that if the mother remained in [S], and the father in [C], [X]’s experience would be no different to hundreds of other children and parents who live at opposite ends of the Sydney metropolitan area, and thus have to travel several hours for the purposes of contact. It was put to him that, in those cases, it was not recommended that one parent moves closer to the other. Dr B explained that, from his perspective, there were no routine recommendations made in any cases, the inference being that each case is different.
76.Dr B went on to describe the mother’s proposal for a gradual increase of time between [X] and her father as “incrementally too slow” and “extremely restrictive.”
77.Finally, and significantly, counsel for the mother asked Dr B to explore a scenario whereby the mother declined to relocate to the Central Coast, even if ordered to do so. Indeed, counsel stated that his instructions were that the mother would not move, if so ordered. Before recording Dr B’s response to this it is important to note that the mother at no point in her evidence indicated to the Court that she would not move to the Central Coast if so ordered. Indeed, the evidence the mother gave to the Court is quite different, and will be discussed below. Whatever the mother’s instructions to her counsel may have been, there is no evidence before this Court to indicate that if ordered to move, she would not do so. In any event, what is clear from Dr B’s response is that he did not believe that that was the best outcome for [X], that is, an outcome that would see her in her father’s primary care. Indeed he openly stated that such an outcome was strongly contra-indicated. To use his words it would be “turning this child’s life upside down… but not out of the question.”
78.The Court accepts Dr B’s evidence. The totality of his evidence indicates that he thinks it is in the best interests of [X] that she live on the Central Coast with her mother, that overnights commence immediately, and that orders be made implementing a substantial and significant time arrangement. The Court accepts Dr B’s evidence without reservation.
Willingness and Ability to Facilitate and Encourage Relationships
79.There was clearly some confusion about whether a parent’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the other parent was a continuing relevant additional consideration under s.60CC(3). Submissions were made, quite appropriately so on the evidence, but for present purposes will be treated as considerations under s.60CC(f), (i) and (m).
80.The mother’s case is that she has demonstrated her willingness and ability to facilitate and encourage a close and continuing relationship between [X] and her father. She submits, for example, that she has complied with orders, and there has been no contravention application initiated in relation to [X] spending time with her father. Indeed, her case is that she agreed to the father spending time with [X] and that it was the father who failed to attend notwithstanding those arrangements, and for no good reason.
81.The father’s case is that notwithstanding the mother’s technical compliance with orders she has demonstrated an unwillingness and inability to facilitate [X]’s relationship with the father in many ways. He was critical of the mother’s decision to relocate to [S] without his consent. The mother’s evidence in this regard is that she moved to [S] with his knowledge and consent and in circumstances where there was no alternative available to her. He contends that throughout the course of the proceedings her proposals for him to spend time with [X] have been both inadequate and unrealistic, especially in the period since the release of the report of Dr B. He was critical of the mother’s inflexibility in relation to parenting arrangements which involve the matter going back to Court several times, and significant correspondence between the lawyers. He was particularly critical of the mother’s reluctance in relation to overnight contact. He complained about not being included in decisions about [X], for example, in relation to her enrolment at pre-school. The Independent Children’s Lawyer is, in practical terms, supportive of the father’s contentions.
82.The first thing to note is that there is no contention, nor could there be any basis for a contention, that the father is not supporting [X]’s relationship with her mother. There is no evidence to support such a contention, and the presence of tension and conflict at changeovers is not consistent with such a submission.
83.Secondly, whilst there is substance to the mother’s contention that the father unreasonably failed to take opportunities given to him to spend time with [X], this reflects a poor prioritisation on his part, and possibly even an ambivalent attitude about contact, it does not establish anything relevant to the present consideration. Indeed, when the Court has regard to both the mother and the father’s evidence about the occasions when contact was offered, but declined by him, the context indicates that he had reasonable and acceptable explanations for not taking advantage of the offers made on the vast majority of occasions, many of which had to do with preparing the family home for sale, as well as other circumstances beyond the father’s control. In cross-examination, even the mother recognised the validity of some of the above. But she maintained, quite correctly the Court agrees, that he might have been able to reprioritise and re-organise his commitments so that he took advantage of the opportunities afforded to him to spend time with [X].
174.The clear fact is that the mother will continue to have the primary responsibility for the care of [X], who is still very young. This is not only a financial cost to her, only part of which is met by way of the child support the father pays, but it will inhibit her ability to return to work and will affect her capacity to earn an income. One need only recall the evidence in this case about the dramatic drop in income for the mother when she left the [S] Corporation, a matter primarily associated with the birth of [X].
175.The father quite properly complained in his submissions that the Court really doesn’t know the true extent of the mother’s employment and what her actual earnings are. Be that as it may, she works as a [omitted] and her income is significantly smaller than that of the father’s. Her needs are far greater, even though the Court acknowledges that she will be receiving the vast share of non-superannuation assets, and will have a not insignificant superannuation entitlement to meet her long-term future needs, there is still the need for a significant adjustment in her favour.
176.In all the circumstances of this case, the Court assesses the wife’s section 75(2) considerations at 12.5 per cent. However, the adjustment will be limited to the non-superannuation assets. The Court recognises that this may well lead to a result whereby the mother is actually receiving more out of the controlled moneys account than she had asked for, but this is on the basis that the Court has allocated to her less of the superannuation assets.
177.The Court finds that it is just and equitable to assess contribution to the superannuation assets as a separate pool. It is difficult to ascertain the rationale for the mother’s proposal, of a super split in her favour of $240,000, in circumstances where the evidence indicates that the father’s superannuation increased during the period of cohabitation by about $155,000. In these circumstances, the father’s contention that she should receive half the growth, or about $77,000, is compelling.
178.The result of the above is that the mother becomes entitled to:
(i) 87.5% of the non-superannuation assets (that is, $371,909); and
(ii) $77,000 out of the husband’s superannuation. As the mother already has non-superannuation assets valued at $55,649 her share of the sale proceeds becomes $316,260.
179.Even the mother, in the orders she seeks, contemplates that her share of the non-superannuation assets will be by way of superannuation-split out of the father’s [S] Superannuation fund. This is clearly appropriate in the circumstances.
180.There was an issue about personal property that the parties appear to have resolved between them.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 7 March 2014
Schedule One
Independent Children’s Lawyers Proposed Minute of Order
1.All previous parenting orders are discharged.
2.The parties have equal shared parental responsibility of the child [X] born [in] 2010.
3.The child lives with the mother.
4.Until the child commences Infants/Primary School the father must spend time with the child during his work schedule breaks as follows:
a)One period of overnight time each month from 9.00 am on the first day until 5.00 pm on the second day, with such time occurring in [S], or at the place of the mother's residence whilst it lies more than 100 km from that of the father, upon his giving the mother 14 day's notice.
b)In the short break from 9.00am on the first day thereof until 5.00pm on the second day and in the long breaks from 10am on the first day thereof until 5.00 pm on the second day, and
c)After a period of 3 months the time spent in the short break will extend to 5.00 pm on the third day and the time in the long break will extend to 5.00 pm on the third day thereof, and
d)After a further 3 month period the time spent in the long break will extend to 5.00 pm on the fourth day thereof, and
e)After a further period of 3 months the time spent in the long break will extend to the fifth day thereof, and
f)When she is 4 years of age the time spent in the long break will extend to the sixth day thereof.
5.When the child commences Infants/Primary School the father must spend time with the child as follows:
a)At least 2 weekends each month to be agreed between the parties having regard to the father's work schedule but failing agreement each alternate weekend from Friday at 6.00 pm until Sunday 5.00pm.
b)Half of each school holiday period as agreed between the parties having regard for the father's work schedule but failing agreement the first half in even numbered years and the second half in odd numbered years from 9.00am on the first Saturday until 5.00pm on the last Saturday of each respective period.
6.Changeovers must occur at the Bunnings store at [omitted], except when the father is spending time with the child pursuant to order 4 a, in which case it will occur outside the mother's residence or at a venue agreed between the parties and the mother or her nominee, excluding the maternal grandfather, must deliver the child to the father at the commencement of time and the father or his nominee must deliver the child to the mother or her nominee, excluding the maternal grandfather, at the conclusion of time.
7.The father must provide to the mother his amended work schedule as soon as practicable upon the receipt of the same.
8.If the father is unable to spend time with the child for any period prescribed in these orders due to work commitments, illness of for any other valid reason, the mother must make a genuine attempt to negotiate with him to arrange and facilitate an alternative spending time with period which must only occur in [S] if it is not prescribed in orders 4 b- e and order 5.
9.The father must pay any Day Care costs payable on days that the child would have attended Day Care but for operation of order 4, unless the parties are able to negotiate a release of the mother's liability for payment of such costs.
10.The father must notify the mother as soon as he becomes aware that he will not be spending time with the child for any period as prescribed in these orders.
11.The father may use the assistance of his extended family members in the care of the child.
12.The parties must use their best endeavours to arrange for the child to spend time with the father during the his work schedule breaks on the weekends and school holiday periods as prescribed in order 5.
13.If the father intends to spend time with child at a location other than Sydney then he will give the mother at least 24 hour's notice of the same.
14.The father may spend time with the child in Sydney or at a location other than [S], except when it occurs pursuant to order 4 a.
15.The parties must facilitate the father's telephone communication with the child on at least 2 occasions per week to occur on days and times to be agreed between the parties but otherwise between 5 and 6 pm on Monday and Sunday nights to be initiated by the father calling the mother on her landline or mobile telephone service and by the mother encouraging the child to have a conversation with him.
16.The parties must not denigrate the other party in the presence of the child or permit any other person from doing within their observance.
17.The parties must keep each other notified of their landline, mobile and email addresses. The mother must not relocate with the child to a distance that increases the current geographical separation, unless it is to a residence within the environs of [S].
18.The parties must notify each as soon as practicable if the child becomes seriously ill, requires treatment for a serious health condition or is hospitalised.
19.The mother must enrol in and complete a Parenting After Separation course within 6 months.
Notations:
A. Order 4 has been made in consideration of the father's current work schedule that provides for a 7 day break each 8 weeks and a 3- 4 day break about each 4 weeks.
B. The father's failure to spend time with the child in [S] in any month does not preclude him from otherwise spending time with her pursuant to orders 4 b- f.
C.
These orders are an authority to any school the child may attend and on any health professional treating the child for the parties to obtain and oral or written information in respect to her.
D. The mother must consult with the father regarding the child's enrolment in Infants/Primary School and any other long term issues, including her education and health and any other serious dispute regarding the implementation of these orders.
E. If following consultation in respect to the child's long tern development the parties are unable to make a joint decision they will make reasonable attempts to attend upon a suitably qualified mediator in an attempt to reach a joint decision in respect to the same.
Father’s Proposed Minute of Order
1.That all previous parenting orders are discharged.
2.That the Father and the Mother have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).
3.That the Father and the Mother shall, as soon as practicable but in any event not longer than 30 days from the date of these orders, each relocate to reside on the New South Wales Central Coast within a radius not exceeding 20 kilometres from [G] railway station (“the Central Coast area”);
4.That on condition that both parties comply with the preceding order [X] shall live with the Mother and spend time with the Father as follows:
From the date of the orders until [X] starts school in 2015:
5.At the Father’s residence:
5.1In a 2 week cycle during the first week, from after kindergarten or day care on Thursday until the commencement of kindergarten or day care the following Monday; and
5.2During the second week, from after kindergarten or day care on the Wednesday until the commencement of kindergarten or day care on Thursday; and
5.3At other times by agreement between the parties.
6.With the Father:
6.1On [X]’s birthday, provided that the Father is not working from 12 noon until 6.00pm;
6.2On Father’s day 2014 from 9.00am until 6.00pm;
6.3During the East public holiday period from 3.30pm on Easter Sunday 2014 until 6.00pm the following day;
6.4From 3.30pm on 25 December 2013 until 3.30pm on 26 December 2013;
6.5From 3.30pm on 24 December 2014 until 3.30pm on 25 December 2015;
6.6At other times by agreement.
From the time [X] starts school in 2015:
7.With the Father:
7.1 In a 2 week cycle during the first week, from after school on Thursday until the commencement of school the following Monday;
7.2 During the second week, from after school on Wednesday until the commencement of school on Thursday;
7.3 For half of every Christmas-New Year school holiday period, alternating each year between the first and second half of each period, commencing with the first half in 2015;
7.4For one (1) week during every other school holiday period;
7.5On [X]’s birthday each year, provided the Father is not working, from 3.30pm until 6.00pm if it is a school day, and from 12 noon until 6.00pm if it is a weekend;
7.6One Father’s Day each year from 9.00am until the start of school the following day;
7.7During the Easter public holiday period each year from 3.30pm on Easter Sunday until 6.00pm the following day; and
7.8At other times by agreement.
8.For the purpose of facilitating the child spending time with the Father, responsibility for transporting [X] shall be as follows:
8.1For the purposes of Order 5, the Father shall collect [X] from kindergarten or day care at the commencement of each period and the Father shall deliver the child the changeover point at the conclusion of each period.
8.2For the purposes of Order 6, the Father shall collect [X] from the changeover point at the commencement of each period and the Father shall deliver the child the changeover point to at the conclusion of each period.
8.3 For the purposes of Orders 7.1 and 7.2, the Father shall collect [X] from school at the commencement of each period and Father shall deliver the child to school the following day; and
8.4 For the purposes of Orders 7.3, 7.4, 7.5, 7.6, 7.7 and 7.8, the Father shall collect [X] from the changeover point at the commencement of each period and the Father shall deliver the child to the changeover point at the conclusion of each period.
9.That, unless the parties otherwise agree in writing, each party be and is hereby restrained from relocating to live outside the Central Coast area before [X] attains the age of 18 years.
10.That within 60 days of these orders the parties shall exchange proposals regarding [X]’s treating general practitioner and the schools she will attend and thereafter will make to make a genuine effort to come to a joint decision about those issues.
11.That each party shall keep the other party informed in writing of their current employment and hours of work and any changes thereto.
12.That each party shall keep the other party informed in writing of their current residential address, landline telephone number and mobile phone number at all times, including periods when they are on holiday with [X].
13.That the Mother shall provide the Father with copies of all documents in her possession or control relating to [X], including but not limited to: birth certificate, medical records, Blue Book (infant health), vaccination records and records of appointments with paediatricians and other health professionals.
14.That neither party shall cause [X] to be placed in any child care on a regular basis without the prior written consent of the other party.
15.That in the event the parties are unable to reach agreement after making a genuine effort to come to a joint decision, [X] shall attend [C] Public School in 2015 and thereafter.
16.That both parents are at liberty to attend all pre-school and school events to which parents are invited.
17.That the parties shall do all things and sign all documents and give all consents necessary to authorise both parents to access [X]’s school reports, school health records and all other information related to [X]’s education and health.
18.That the parties shall communicate and keep each other informed in advance about all [X]’s medical, dental and counselling appointments to enable both parties to attend the appointments should they wish to do so.
19.That the parties shall communicate and keep each other informed as to any medication taken by [X].
20.That in the event of [X] suffering any illness, the parties shall communicate as soon as practicable and within 24 hours to enable both parties to participate in decision making about [X]’s care and treatment.
21.That in the event of an emergency, the parties shall communicate within 24 hours and keep each other informed of [X]’s whereabouts, medical treatment and treating doctor (if applicable).
22.That neither party is to denigrate the other party, or a member of the other party’s family or their friends, within the sight or hearing of [X].
Implementation
23.The parties shall do all acts and things, give all consents necessary and co-operate in every way required to fully implement these orders.
24.For the purposes of these orders “the changeover point” means Bunnings Warehouse at [address omitted] NSW unless the parties agree otherwise in writing.
25.That the Mother pay the Father’s costs of and incidental to these proceedings.
26.That the Court is respectfully requested to note that in the event the Court determines that [X] ought to live primarily with the Father her seeks to be heard as to the precise form of orders he would seek in those circumstances.
Mother’s Propose Minute of Order
1.The parties have equal shared parental responsibility for the child, [X], born [in] 2010.
2.That the child live with the mother.
3.Until the child commences school in 2016, that the child spend time with the father as follows:
a)On each alternate weekend from Saturday 9am until Sunday 5pm.
b)
i)During the period commencing 1 January 2014 and concluding on 30 January 2014 by way of two (2) holiday periods of two (2) nights duration.
ii)From 1 July 2014 until 31 December 2014 for two (2) further periods of three (3) nights by way of holiday.
iii)During the year 2015 between 1 January 2015 and 30 June 2015 for two (2) occasions of four (4) nights duration by way of holiday.
iv)Between 1 July 2015 and 31 December 2015 for two (2) occasions of five (5) nights duration
And such holiday times are to occur at such times as are agreed upon between the parties and for the purposes of implementation of this Order the Father is to provide at least 21 days written notice of his intention for holiday time to occur.
c)Between 9 am and 5 pm on 25 December, 2013 and 2015
4.Once the child commences school in 2016, the child shall spend time with the father as follows:
a)On each alternate weekend commencing Friday at 7.30pm until 7.30pm Sunday or at such other times as the Mother may nominate (such time to be determined by the Mother’s working arrangements).
b)For one half of each school holiday period, being for the first half of each school holiday period in odd numbered years and the second half of the school holiday period in even numbered years and for the purposes of implementation of these Orders, the calculation as to when the holidays commence and conclude, is to be calculated from 9am on the first Saturday of each holiday period and concluding at 7.30pm on the last Saturday of such holiday period and the changeover between the child’s parents shall occur at 7.30pm on the day which is the midpoint of the holiday period, as defined within this Order.
c)Should the day known as Father’s Day fall during a weekend that is not a time that the child is scheduled to spend time with the father, then the child shall spend time with the father on that weekend in accordance with Order 3(a) on the weekend including Father’s Day and for the purposes of implementation of this Order the child is to be collected and returned to and from the mother’s residence by the father.
d)At such other times as are agreed between the parties.
5.That the child spend time with the mother, should the following circumstances arise:
a)Should the day known as Mother’s Day fall within a weekend that the child is to be with the father, then the father’s time with the child is to be suspended for that weekend.
6.Except as otherwise provided for in these Orders, at the commencement of time that the child is to spend with the father, the mother shall deliver the child to the Subway Restaurant situated at [omitted] and at the conclusion of time that the child spend with the father, he is to return the child to the mother at the Subway Restaurant at [omitted].
7.In the event that the mother is ill or is required to attend work, she is to provide the father with as much notice as practical, whereupon he shall collect and return the child.
8.The parent with whom the child is not living may communicate with her on two (2) occasions per week on days and times to be agreed between the parties but otherwise between 6.30 and 7.00 pm on Monday and Sunday nights to be initiated by the parent calling the residential parent on his or her landline or mobile telephone service or by Skype or Facetime provided such facility is available and the applicable parent is to encourage the child to have a conversation with the other parent.
9.That each party must notify the other as soon as practicable if the child becomes seriously ill, requires treatment for a serious health condition or is admitted to a hospital as a consequence of injury or ill health.
10.That each parent is to provide the other with such authority as may be required to enable the other parent to obtain such information as may be required with respect to treatment received or proposed by medical practitioners and other health care providers to the child.
11.That the mother is to provide such authorities as may be necessary to enable the father to obtain information from such school as the child may from time to time be enrolled in or from the organisers of such sporting or extra-curricular activity in which the child may be enrolled from time to time.
12.That each party must keep the other notified of their respective landline, mobile telephone and email addresses and no later than 7 days after such telephone number or email address changes.
13.The father must notify the mother by electronic means as soon as he becomes aware that he will not be spending time with the child for any period, as prescribed in these Orders.
14.That each party is restrained and remains restrained from denigrating the other party in the presence of the child or to permit the child to remain in the presence of any person denigrating the other party within the child’s hearing or presence.
15.That the parties are to continue to maintain a Communication Book in which they are to record information pertinent to the welfare of the child and the Communication Book is to accompany the child when spending time with the Father and is to be returned by the Father to the Mother at the conclusion of the child spending time with him.
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Costs
6
3