ALDOUS & SAMWAYS
[2020] FCCA 474
•31 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALDOUS & SAMWAYS | [2020] FCCA 474 |
| Catchwords: FAMILY LAW – Parenting – final Hearing – substantial and significant time – where change of name sought. |
| Legislation: Family Law Act 1975 (Cth) ss.4AB, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC |
| Cases cited: Godfrey & Sanders [2007] FamCA 102 McCall & Clark [2009] FamCAFC 92 Starr & Duggan [2009] FamCAFC 115 Grella & Jamieson [2017] FamCAFC 21 Britt & Britt [2017] FamCAFC 27 |
| Applicant: | MS ALDOUS |
| Respondent: | MS SAMWAYS |
| File Number: | SYC 7453 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 18 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Saw |
| Solicitors for the Applicant: | E H Tebbutt & Sons |
| Counsel for the Respondent: | Mr Apelbaum |
| Solicitors for the Respondent: | Cominos Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Carr |
| Solicitors for the Independent Children’s Lawyer: | Shorehills Legal Solicitors |
ORDERS
That the child X born in 2014 be known for all purposes as X Samways-Aldous.
That the child Y Aldous-Samways born in 2016 be known for all purposes as Y Samways-Aldous.
That the parties forthwith do all acts and things necessary to change the surnames of the children X Aldous-Samways, born in 2014 and Y Aldous-Samways, born in 2016 from “Samways” to “Samways-Aldous” on their birth certificates and at all institutions and authorities at which the children’s names are recorded.
That the parties have equal shared parental responsibility for the children X Samways-Aldous born in 2014 and Y Samways-Aldous born in 2016.
That until 30 August 2020:
(a)The children live with the applicant Ms Aldous;
(b)The children spend time with the respondent Ms Samways during X’s school term time:
(i)From the conclusion of childcare and school (or 3:30 PM if not a childcare/school day) every Tuesday until the start of childcare/school (or 9 AM if not a childcare/school day) on Wednesday; and
(ii)Each alternate week from the conclusion of childcare/school (or 3 PM if not a childcare/school day) on Friday until the start of childcare/school (or 9 AM if not a childcare/school day) on Monday and in the event that the Monday is a public holiday then until 5 PM on Monday, the first such occasion to commence on Friday, 3 April 2020.
That from 31 August 2020, during school term time the children live:
(a)With the respondent Ms Samways each alternate week from the end of childcare/school (or 3 PM is not a childcare/school day) on Monday until the start of childcare/school (or 9 AM if not a childcare/school day) the following Wednesday; then
(b)With the applicant Ms Aldous from the start of childcare/school (or 9 AM if not a childcare/school day) on Wednesday until the start of childcare/school (or 9 AM if not a childcare/school day) the following Friday; then
(c)With the respondent Ms Samways from the start of childcare/school (or 9 AM if not a childcare/school day) on Friday until the start of childcare/school (or 9 AM if not a childcare/school day) the following Wednesday; then
(d)With the applicant Ms Aldous from the start of childcare/school (or 9 AM if not a childcare/school day) on Wednesday until the end of childcare/school (or 3 PM if not a childcare/school day) the following Monday.
In relation to the Term 1, 2 and 3 school holidays:
(a)That the children live with the respondent Ms Samways for one half of the school holidays at the end of Terms 1, 2 and 3 as agreed between the parties and failing agreement for the first half of the school holidays in even-numbered years and for the second half of the school holidays in odd-numbered years; and
(b)That the children live with the applicant Ms Aldous for one half of the school holidays at the end of Terms 1, 2 and 3 as agreed between the parties and failing agreement for the second half of the school holidays in even-numbered years and for the first half of the school holidays in odd-numbered years.
That the children live with the respondent Ms Samways for half of the Christmas school holidays at the end of Term 4 as agreed and failing agreement:
(a)In one block of 7 nights from 9 AM on 28 December until 9 AM on 4 January and in one block of 10 nights from 9 AM on 18 January until 9 AM on 28 January in odd-numbered years; and
(b)In one block of 7 nights from 9 AM on 21 December until 9 AM on 28 December and for one block of 10 nights from 9 AM on 9 January until 9 AM on 19 January in even-numbered years; and
(c)That the children live with the applicant Ms Aldous for all of those parts of the Christmas school holidays at the end of Term 4 when they are not living with the respondent Ms Samways pursuant to this Order.
That the time the children spend with the respondent Ms Aldous pursuant to Order 5 (b) cease during school holidays at the end of Terms 1 and 2 in 2020 and recommence on the resumption of school such that the first weekend under Order 5 (b)(ii) is the first weekend after the resumption of school attendance by X.
That the live with regime in Order 6 is suspended during all school holidays occurring after 31 August 2020 and resumes following the end of the school holidays in the same pattern as if it had not been suspended.
That for the purpose of these Orders, school holidays commence at the time the first of X or Y finishes school attendance for the Term and conclude at the time that the first of X or Y recommences school attendance for the new Term.
That notwithstanding any other Orders the children live with the Applicant Ms Aldous as follows:
(a)From 9 AM on 24 December to 9 AM on 26 December in even-numbered years;
(b)From 9 AM on 26 December to 9 AM on 28 December in odd-numbered years;
(c)On Mother’s Day each year from 9 AM until 5 PM;
(d)On each of the children’s birthdays in the event that the children would not otherwise spend any time with the Applicant on that day, as agreed between the parties and failing agreement for 2 hours if a school day and for 5 hours if a non-school day;
(e)On the Applicant Ms Aldous’ birthday, in the event that the children would otherwise not spend any time with the Applicant on that day, as agreed between the parties and failing agreement from 5 PM until 5 PM;
(f)From 5 PM on Easter Thursday at 5 PM on Easter Saturday in odd-numbered years; and
(g)From 5 PM on Easter Saturday until 5 PM on Easter Monday in even-numbered years.
That notwithstanding any other Order the children live with the Respondent Ms Samways as follows:
(a)From 9 AM on 24 December to 9 AM on 26 December in odd-number years;
(b)From 9 AM on 26 December to 9 AM on 28 December in even-numbered years;
(c)On each of the children’s birthdays, in the event that the children would not otherwise spend any time with the respondent on that day, as agreed between the parties and failing agreement for 2 hours if a school day and for 5 hours if a non-school day;
(d)On the Respondent Ms Samways birthday, in the event that the children would not otherwise spend any time with the respondent on that day, as agreed between the parties and failing agreement from 5 PM on until 5 PM;
(e)From 5 PM on Easter Thursday until 5 PM on Easter Saturday in even-numbered years; and
(f)From 5 PM on Easter Saturday until 5 PM on Easter Monday in odd-numbered years.
That any changeover the does not occur by collection of the children from school and preschool or delivery of the children to school or preschool will occur by collection of the children by the parent into whose care they are moving from the place of residence of the parent from his care the children are leaving.
On each occasion during school term time when the children are in a parent’s care for 5 nights or more, the other parent may communicate with children by telephone or Face time on the middle night of the children’s stay, at some time between 5:30 PM and 6 PM, the call to be initiated by the non-carer parent, and the parent with care of the children is to facilitate the children having that communication with the other parent and ensure that the children have privacy during the communication.
That upon Y attaining 5 years of age in 2021 each of the parties is permitted to travel outside Australia with the children at times as agreed between the parties and failing agreement, during periods when the children are living with the travelling parent, on the following conditions:
(a)That such travel by the children outside Australia is only to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and which Australia has recognised so that the Hague Convention is in force between that country and Australia, and to Country B;
(b)The parent intending to travel with the children outside Australia must notify the other parent no later than 6 weeks prior to the date of departure for travel outside Australia of the proposed travel and details of the countries to be visited by the children, date of departure and date of return for the children;
(c)The parent intending to travel with the children outside Australia must provide to the other parent no later than 4 weeks prior to the intended travel a written itinerary of the children’s proposed travel that includes details of all travel bookings, including details of any flight numbers and flight departure times and details of all applicable airline or cruise companies, telephone number or telephone numbers on which children may be contacted during the travel, details of whether children will be accommodated during the travel and details of any necessary immunisations and travel insurance for the children, and provide copies of any relevant documents relating to immunisation and travel insurance.
That the Australian Federal Police remove the names of the children for the purpose of this order known as X born in 2014 and Y born in 2016 from the Airport Watchlist at all points of in international arrivals and departures in Australia.
That by 4 August 2021 the parties do all things necessary to have an Australian Passport issued for each of the children and following such issue the children’s Australian Passports are to be held by the Applicant Ms Aldous, and are to be provided by the applicant to the Respondent Ms Samways no later than 14 days after the applicant receives a written notice of intended travel by the children outside Australia from the respondent, and are to be returned by the respondent to the applicant no later than 48 hours after the return of the children from travel outside Australia.
That unless otherwise agreed between the parties, each party is restrained from relocating that party’s place of residence more than 40 kilometres from that party’s current place of residence.
That each party do all things necessary to authorise the relevant authorities at any school or daycare centre attended by either of the children to provide to each of the parties copies of all notices, information, newsletters and reports and applications for school or preschool photographs, any fees or costs associated therewith to be paid by the parent receiving such documents.
That each of the parties may attend any daycare, school, sporting, cultural or religious activity in which the children are involved or participating to which parents are invited to or may attend or participate.
That each party must keep the other parent informed of all organisations or medical treatment providers with whom the children or either of them are involved and the parent with first contact with any such organisation or medical treatment provider must ensure that such organisation or medical treatment provider is informed of the contact details of both parents and must authorise such organisation or medical treatment provider to communicate equally with each of the parents.
That each of the parties must keep the other parent informed of any health issues relating to either of the children whilst in that party’s care including all visits to any medical health professionals or medical treatment providers and details of any medication prescribed or given to the children or either of them.
That each of the parties must as soon as practicable telephone the other party in the event that either of the children becomes seriously ill, that either the children is hospitalised, or that either of the children becomes involved in an accident requiring medical attention.
That each of the parties must notify the other party of any change to the notifying party’s residential address, landline telephone number (if any), mobile telephone number and persons living at the notifying party’s home, whether temporarily or permanently, such notification to be made within 3 days of such change occurring.
That each of the parents may attend the first day of school for the children at the start of each new school year.
That neither of the parties may enrol either the children in any extracurricular activity without the signed written consent of the other party and each of the parties must ensure that the children attend any extracurricular activity in which they have been enrolled pursuant to this order.
That each of the parties is restrained from denigrating the other party, any member of the other party’s family, or any member of the other party’s household in the presence of or within the hearing of either of the children.
That each of the parties is restrained from allowing children or either of them to remain in the presence of, or within either child’s hearing of, any other person who is denigrating other party, any member of the other party’s family, or any member of the other party’s household.
That the respondent Ms Samways is restrained from using marijuana (also known as cannabis) in any of its forms, including but not limited to hashish, for a period of 48 hours prior to the children coming into her care and at all whilst the children are in her care.
That leave is granted to each of the parties to relist the matter before Judge Morley on giving 5 days’ notice to the other party and to the Independent Children’s Lawyer and to the Court in the event that either party, or both of them, seek to press for an order in relation to the school to be attended by X, such relisting to be requested within 28 days of the making of this Order and during a period of 28 days following the making of this Order the issue of the school to be attended by X remains before the Court. At the expiration of 28 days from the making of this Order, if no request has been made for a relisting of the matter pursuant to this Order, final orders in this matter will have been concluded and all outstanding applications and responses will be removed from the list of matters awaiting finalisation by the Court except the outstanding application for costs made by the Independent Children’s Lawyer against the respondent.
That within 14 days the Independent Children’s Lawyer lodge with Chambers written submissions in relation to the Independent Children’s Lawyer’s application that the respondent pay the Independent Children’s Lawyer’s costs, payable to the Legal Aid Commission of NSW within 42 days of an Order, in the sum of $7,134.98 and serve a copy of any such written submissions on both the applicant and the respondent.
That in the event that written submissions are served pursuant to Order 32 the respondent and, should she so choose, the applicant file and serve written submissions in relation to Independent Children’s Lawyer’s costs application against the respondent within 14 days after service upon them of the Independent Children’s Lawyer’s written submissions, and the Independent Children’s Lawyer is to file and serve any written submissions in reply within 7 days after service of written submissions by the parties or either of them.
IT IS NOTED that publication of this judgment under the pseudonym Aldous & Samways is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7453 of 2017
| MS ALDOUS |
Applicant
And
| MS SAMWAYS |
Respondent
REASONS FOR JUDGMENT
The applicant mother, Ms Aldous (“the applicant”) and the respondent mother, Ms Samways (“the respondent”) are the loving parents of the children X, born in 2014 and Y, born in 2016. The applicant and the respondent formed a de facto relationship in 2010, and X and Y were born to the applicant as a result of IVF procedures.
The parties separated on 4 August 2017. The respondent commenced a cohabitive relationship with her current partner, Ms C. The children remained living with the applicant and began spending time with the respondent, initially five nights a fortnight for X and four nights a fortnight for Y. Following the applicant receiving some legal advice, apparently about the appropriateness of the amount of time the children should spend out of her care and in the care of their other mother, the applicant reduced the time the children spent with the respondent to three nights per fortnight for X and to daytime only for Y on the days that X was in the respondent’s care.
These proceedings were commenced on 10 November 2017 by the applicant filing an Initiating Application for parenting orders on an interim and final basis. The respondent filed her Response on 19 January 2018.
The final hearing took place before me on 18, 19 and 20 June 2019.
Material relied upon
The applicant relied on the following material at hearing:
(1)Case outline document prepared on her behalf by her Counsel, Ms Saw;
(2)Amended Initiating Application filed 21 March 2018;
(3)Affidavit of the applicant affirmed 21 May 2019 and filed 22 May 2019; and
(4)Affidavit of Ms D, the applicant’s sister, affirmed 21 May 2019 and filed 22 May 2019.
The applicant also relied on exhibit A2, being a bundle of correspondence by way of emails, letter and handwritten notes both directly between the parties and with their legal representatives in relation to arrangements for, and conditions relating to, the respondent spending time with the children.
The respondent relied upon the following materials:
(1)An outline of case document prepared by her counsel, Mr Apelbaum;
(2)An Amended Response to Initiating Application filed 23 May 2019;
(3)Affidavit of the respondent affirmed 20 May 2019 and filed 22 May 2019; and
(4)Affidavit of Ms C affirmed 19 May 2019 and filed 22 May 2019.
During the hearing, a minute of orders sought by the respondent was tendered and entered as exhibit R11.
The respondent also relied upon the following exhibits:
(1)Exhibit R2 – three pages of work leave records relating to the respondent’s employment;
(2)Exhibit R3 – five bundles of prints of text messages passing between the mobile phones of the parties;
(3)Exhibit R4 – materials marked with specific tabs in the documents produced on subpoena by Ms E, psychologist;
(4)Exhibit R5 – documents marked with a tab in the bundle of documents produced on subpoena by Town F Early Learning Centre;
(5)Exhibit R6 – hair follicle analysis drug test results for the respondent for a hair sample collected on 30 May 2019, showing negative for all substances screened for;
(6)Exhibit R7 – further documents relating to the hair follicle drug test undertaken by the respondent on 30 May 2019;
(7)Exhibit R8 – result sheet for a urine analysis test undertaken by the respondent on 23 May 2019, showing negative results for all substances screened for;
(8)Exhibit R9 – letter dated 31 May 2019 from Dr G addressed to whom it may concern and enclosing a print of the results of a liver function test performed on the respondent on 28 September 2018, producing a “normal” result;
(9)Exhibit R10 – printout of travel advice produced by the Department of Foreign Affairs and Trade for Country A, Country H and Country B as at 20 June 2019.
The Independent Children’s Lawyer relied upon the following materials:
(1)A Family Report dated 30 April 2019 prepared by Family Consultant Ms S (marked as exhibit ICL3);
(2)Child Dispute Conference Memorandum to Court dated 29 January 2018 prepared by Family Consultant Ms S (marked as exhibit ICL2);
(3)Case outline document prepared by Ms Carr of Counsel;
(4)A minute of orders sought by the Independent Children’s Lawyer (exhibit ICL6);
(5)Exhibit ICL4 being a letter dated 7 February 2019 from the solicitors for the applicant (at that time) to the solicitors for the respondent (at that time) and prints of three emails from the applicant to Ms E, psychologist.
During the hearing, a document was tendered into evidence by the Independent Children’s Lawyer and marked as exhibit ICL5, being a three-page table setting out a proposal by the respondent for her spending time with the children, in three alternate schemes. The document does not bear upon my consideration in this matter as it was overtaken by the end of the hearing by the minute of orders sought by the respondent (exhibit R11).
The applicant and her witness, Ms D, were cross-examined on behalf of the respondent and the Independent Children’s Lawyer. The respondent and her witness, Ms C, were cross-examined on behalf of the applicant and the Independent Children’s Lawyer.
The family consultant, Ms S, was cross-examined on behalf of each of the parties and the Independent Children’s Lawyer.
In giving these reasons and in making the orders consequent upon these reasons, I have taken into account all of the material relied upon by the parties, all of the oral evidence given in the hearing and all of the submissions made on behalf of each of the parties and the Independent Children’s Lawyer.
Credit
I do not find it necessary to make findings on credit in relation to either of the parties or either of their supporting witnesses. Though the case presented by the applicant asserted a risk to the children when in the care of the respondent by reason of the respondent’s use of alcohol and of illegal drugs, the applicant’s case when taken at its height does not support a finding of such a risk. Though on some matters the evidence of the parties differed, for a harmless example, in relation to the evidence as to when they commenced their relationship, none of the disputed facts require a finding to be made one way or the other in making a determination of what orders are properly to be made in the best interest of the children.
The evidence
Much of the evidence contained in the parties’ trial Affidavits and those of their supporting witnesses does not need to be traversed in these reasons because it does not have sufficient bearing on the issues to require any reiteration or analysis.
In relation to the care of the children, the evidence makes it obvious that the applicant is the children’s birth mother and has been their primary carer and is their primary attachment figure. So much is conceded by the respondent.
Much of the evidence of the applicant goes to historical occasions occurring both before and after the birth of the children when the respondent consumed alcohol to stages where she was affected and even seriously affected and used marijuana. As that evidence goes to the central issue of the respondent’s parenting capacity and consequent ability to provide appropriate care for the children whilst with her, I will detail the evidence and make appropriate findings.
The applicant was 40 years of age and the respondent 44 years of age at the time of hearing. They commenced a cohabitate relationship sometime between June and October 2010 and separated on 4 August 2017. It is relevant that the respondent was born in Country B and is in Australia as a permanent resident.
The applicant is a health care worker and works one day per week. The applicant lives with the children in Town F in New South Wales.
The respondent is a professional at Employer K. She lives in Town L in New South Wales with her partner, Ms C, Ms C’s son, M, born in 2010 and with the children when they are in her care.
At the time of the hearing, both children were attending day care at Town F Early Learning Centre. X will have commenced school at the start of the school year 2020.
When the parties commenced their relationship, they were both in full-time employment. In 2012, they began IVF treatment and in 2014, the applicant gave birth to X. Following further IVF treatment, the applicant gave birth to Y in 2016. The applicant has not returned to full-time work since the children were born. In 2017, the applicant returned to work one day a week on Saturday and until the parties separated, the respondent looked after the children while the applicant was at work. In April 2017, the applicant took up an additional day of work each Friday, and the respondent restructured her employment arrangements so that she completed her required five days of work in four days and stayed home to look after the children on Friday as well as Saturday.
Following the parties’ separation, they entered into an informal parenting arrangement for the first three or four weeks after separation, whereby X stayed with the respondent for five nights per fortnight and Y stayed with the respondent for four nights per fortnight. However, following the applicant receiving “legal advice”, she made a decision that the time the respondent should spend with the children should and would be reduced to three nights per fortnight for X and three daytime occasions per fortnight for Y corresponding with the days that X was with the respondent. One may question why “legal advice” was a determinant of how much time was appropriate for the children to be in the respondent’s care, but as the specific “legal advice” received by the applicant is not in evidence, nothing more can be made of that.
Following the commencement of proceedings, some interim orders were made by consent between the parties in relation to the time that the children would spend with the respondent. On 30 October 2019, further interim orders were made in the proceedings providing that the children spend time with the respondent from 6.45 am to 6.30 pm on Tuesday in week 1, from 5 pm Friday to 5 pm Sunday in week 2 and from 6.30 pm Monday to 6.30 pm Tuesday in week 2, being three nights each fortnight and, in effect, the whole of Tuesday every week.
On 15 June 2018, a final order was made by consent that the parties have equal shared parental responsibility for the children.
The evidence of the applicant in relation to the respondent’s use of alcohol and of marijuana is summarised as follows:
a)The respondent would call in sick to work on a Monday about once every couple of months, she would stay in bed all day and say to the applicant words to the effect of, “I need to recover from my big weekend”.
b)The applicant regularly smoked marijuana during the relationship, she was always looking to have a regular supply and would buy “large quantities of marijuana when we went on holidays”. What was meant by “large quantities” was never defined in the evidence.
c)The respondent would “leave the house to smoke marijuana”. There were occasions after the children were born that she would smoke marijuana outside the house and then come back inside the home and play with the children. The respondent would say to the applicant, “There’s nothing wrong with me, I can look after the boys.”
d)On an occasion prior to X being born, the parties holidayed with the applicant’s sister at Town N, and whilst there, the respondent smoked marijuana and took cocaine with other persons at a caravan park.
e)In 2017, whilst holidaying at Town O in .New South Wales, the respondent and the applicant drove to a nearby town with the children, and the respondent said to the applicant words to the effect of, “I’m going to buy some marijuana from someone,” and the respondent then engaged in a transaction with a person within sight of the applicant in the car. The applicant says, “I distracted the children so that they would not see or ask questions.” During the rest of the holiday, the respondent frequently left the holiday home to smoke marijuana.
I comment that at this time, .2017, X was three years and two months of age, and Y was eight months of age. It is unlikely that either child would have had any awareness of the fact that the respondent was transacting with a person within sight of where they were in the car for the purchase of marijuana and I doubt, in consequence of their age at that time, that there was any need to distract the children so that they would not see or ask questions, what questions were likely to be asked by a three year old child, the answer to which from a loving parent could have any adverse effect on the child? I doubt that at eight months of age Y was in a position to “ask questions”.
In 2014, before X’s birth, the parties went to dinner at the applicant’s sister’s home. The respondent drank alcohol and “went outside to smoke marijuana”. Thereafter, she felt ill and vomited. The applicant drove herself and the respondent home. At 5 am the next morning, the applicant went into labour. The respondent drove her to the hospital. X was born that afternoon, and the respondent said to the applicant words to the effect of, “I was really worried I was going to be over the limit and not be able to drive you to hospital.”
I comment that this evidence, taken at its height, does not indicate that when the respondent drove the applicant to hospital she was over the legal limit to drive.
In .2017 during a dinner party that included the applicant, the respondent and the applicant’s sister at the parties’ home, the respondent had some glasses of wine and then went outside to smoke marijuana. The children were in bed at this time.
In .2017, the parties went to a jazz festival with some friends, accompanied by the children. After the jazz festival event, the applicant took the children home. The respondent stayed out with some mutual friends and continued to drink. When the applicant got up the next morning, the respondent was home and the respondent said to the applicant words to the effect of, “I got so drunk I fell over and put a hole in the wall.” In evidence was a photo showing the applicant laying on a floor, holding a glass of wine near what is obviously a head-sized hole at the base of a gyprock or fibro wall. The respondent concedes that she drank to excess, fell, her head struck the wall and caused damage to the wall, and that as a result she had some medical attention to check for concussion. The children were not present during the applicant’s drinking to excess or her fall.
On a Saturday, after the applicant began working one day a week on Saturday from 2017, the respondent came home at about 4 am, and when the applicant got up in the morning, she found the respondent asleep on the couch and unable to be awoken. The respondent was due to look after the children on that day, and out of concern as to her ability to do so, the applicant contacted her sister who agreed to look after the boys. However, the applicant eventually woke the respondent and advised her that she had arranged for her sister to look after the boys as she presumed that the respondent was, “too hungover to look after the boys today”. The respondent advised that she would be fine to look after the boys and just needed to have a shower. The respondent went to have a shower, but instead fell asleep on a bed. She was awoken again by the applicant who said to her words to the effect of, “Ms Samways, I need to know if you’re going to look after the boys while I work or if I should call my sister.” The respondent said, “It’s fine, I will look after them. I just need to have a shower and then I’ll be fine.” The applicant agreed to the respondent looking after the children and cancelled her sister.
On a Friday night, the respondent stayed up drinking late at the parties’ home with her now partner, Ms C, and did not take X to his sports game the next morning, saying, “I can’t. I’m still over the limit. I can’t do it.” X did not attend the game.
The applicant includes at paragraph 32 of her Affidavit the following “catch-all” evidence:
Ms Samways would frequently not come home after her drinking sessions. I would be worried about her during the night. The children and I would wake up in the morning and she would not be there. I would not know where she was and she would not answer her mobile. I would resort to calling our mutual friends and asking if she had “crashed” on their couch. I was embarrassed to have to ring our friends about this.
Couched in such general terms and non-specific as to how “frequently”, the paragraph could rationally affect (both directly or indirectly) the assessment of the probability of the existence of a fact in issue in these proceedings, that is, as to whether or not the respondent presents a risk to the children whilst they are in her care by reason of her excessive use of alcohol. The evidence is capable of having some probative value, however slight, and is therefore admissible: Britt & Britt [2017] FamCAFC 27 at [31]. However, though admissible, I find that the form in which that evidence is given makes it of the very slightest probative value and, therefore, I give it very little weight.
In relation to the issue of her alcohol consumption, the respondent gives the following evidence:
a)In paragraph 57 of her Affidavit:
I am aware that Ms Aldous has some concerns about my ability to care for the children as a result of my use of alcohol and marijuana. In the months leading up to my separation from Ms Aldous, I was very unhappy and anxious about the deterioration of my relationship. As a result, I did have some occasions where I drank more than the legal limit for driving. The few months prior to separation, I did smoke marijuana on some weekends after the children were asleep.
b)In paragraph 58:
I do not recall a single occasion where the children have been placed at risk as a result of my drinking or use of marijuana. At no point did I drink to over the limit or smoke marijuana when I had sole responsibility for the children. Ms Aldous was either present or was at home with the children.
c)In paragraph 59:
On one occasion, Ms Aldous expressed some concern about my ability to look after the children the morning after I had gone out with some friends, but after some time to allow me to wake up and shower, she was happy for me to care for the children while she worked from home. I do not recall any other time where Ms Aldous raised any concerns with me about my drinking or use of marijuana.
d)In paragraph 60:
Since my separation from Ms Aldous, I have significantly reduced the occasions where I drink alcohol and I have not used marijuana at all since shortly after my separation from Ms Aldous. During the week, I usually do not drink at all and on weekends, I enjoy some wine or beer with friends at each other’s home or at a social function. When the children are with me, we usually host people in our home. If the children come with us to a social engagement, I either do not drink at all or I have a few light beers.
e)In paragraph 62:
I am mindful that Ms Aldous has said she has some concerns and as a result, I have implemented several extra safeguards. For example, if I choose to drink while the children are with me, I now drink low-alcohol beer or do not drink at all. I have invested in a breathalyser, so I am able to monitor my blood alcohol and ensure that I am under the limit for driving while the children are with me, even if I have no plans to drive.
I am assisted by the following in paragraph 130 of the Family Report:
Regarding Ms Aldous’ concerns about Ms Samways’ substance and alcohol use, there was an impression that Ms Samways (and Ms C) gave frank – gave a frank and sensible account. There was no suggestion that Ms Samways would put the children at risk or that her behaviour has previously placed them at risk. The information gathered for this report did not identify any significant risks for X and Y in either parent’s care.
And in paragraph 131 of the Family Report:
In fact, both Ms Samways and Ms Aldous presented as competent, intelligent parents, who are loving and protective towards the children, and who have many similar values. If the parents are able to, eventually, discuss their co-parenting, this can include issues such as how they model behaviours, such as alcohol use, to the children, as they develop through childhood and adolescence.
I find, taking the evidence of the applicant at its highest, that none of the occasions referred to in the evidence about the respondent consuming alcohol prior to the birth of X are relevant to the question of the respondent’s capacity to appropriately parent the children when they are in her care. None of that evidence indicates that the respondent is an alcoholic or that, the conduct occurring prior to her becoming a parent, she would act in the way described on any occasion so as to put the children at any risk.
I find that the applicant’s evidence in relation to the respondent’s use of alcohol after the birth of the children, taken at its height, does not indicate that the respondent would at any time lack the appropriate parenting capacity to properly care for the children while they are in her care, including in her sole care without the assistance of any other person, as none of the occasions in the evidence indicate that the respondent used alcohol to excess on any occasion when doing so presented a risk to the children. The occasions referred to by the applicant in her evidence are all occasions when she was there to care for the children or occurred when the respondent was not with the children – the jazz festival in 2017 and the “hole in the wall” incident.
The use of marijuana by a parent when children are in their care will always present a risk to the children. However, on the applicant’s evidence taken at its height, there is no occasion of the respondent using marijuana when the children were in her sole care or likely to pass into her sole care while she was under the effects of marijuana use. There is no evidence to contradict the assertion by the respondent in her evidence that she has not used marijuana at all since shortly after the parties separated. However, as, by her own admission, the respondent has been a marijuana user, the usage illegal, and use of marijuana by a parent whilst children are in their care presents a risk to the children, I find that any use of marijuana by the respondent while the children are in her care would present a risk, but that the risk can be mitigated by an appropriate order, being an injunction restraining the respondent from using marijuana for a period of 48 hours before the children come into her care and at all times while the children are in her care.
Overseas travel
The respondent was born in Country B, attended high school in the Country P, came to Australia when she was about 17 years of age and thereafter returned to Country B and undertook her tertiary studies culminating in her achieving her qualifications in 2004. In 2015, the applicant, the respondent and X travelled to Country B for a holiday, during which they met and spent time with members of the respondent’s family.
Prior to separation, the parties discussed travelling to Country B for another holiday for six weeks at Christmas 2017. Following the parties’ separation in August 2017, the respondent corresponded with the applicant in relation to the respondent’s desire to take the children with her to Country B. The applicant did not agree to the children accompanying the respondent to Country B, but did make some special arrangements with the respondent for the respondent to spend some extra time with the children prior to her trip to Country B at the end of 2017.
The respondent seeks orders that enable her to travel with the children to Country B for a period of up to three weeks in December 2020/January 2021 and every four years thereafter at about the same time. Such orders are opposed by the applicant on the basis:
a)that Country B is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
b)that she fears that the respondent would retain the children outside of Australia; and
c)that the children are in danger in Country B in consequence of endemic violence, terrorist activity and kidnapping risk.
The Australian Government Department Foreign Affairs and Trade travel advice in relation to Country B as at 20 June 2019 indicates that the official advice is “high degree of caution”, with some parts of Country B presenting a higher risk than others. Those parts of high risk are classified as “reconsider your need to travel” and for the border regions with other countries, “do not travel”. It is the evidence of the respondent that on visiting Country B with the children, they would not be travelling in the areas covered by the “reconsider your need to travel” or “do not travel” classifications. In the material from the Department of Foreign Affairs and Trade tendered on behalf of the respondent and marked as Exhibit R10 is the Department of Foreign Affairs and Trade travel recommendations for Country H with the official advice, “high degree of caution” and for Country A with the official advice, “high degree of caution”. Neither country has regions under classification of “reconsider your need to travel” or “do not travel”.
It is the evidence of the respondent that when the parties and X spent a holiday in Country B together in 2015, the circumstances in that country and the Department of Foreign Affairs and Trade travel warnings were the same as in June 2019 and, at that time, the applicant did not raise objection to the parties visiting Country B with X.
The respondent’s mother resides in Country B and is elderly and unwell. She suffers from emphysema and mobility issues and is unable to make the long journey to Australia. The respondent’s sister and her sister’s family, including her children, Q aged 11 and R aged 9, also reside in Country B. In addition to wishing to travel with the children to Country B so that they can experience the place of their parent’s birth and its culture, the respondent also wishes to travel outside Australia to other overseas destinations with the children. Ms S was cross-examined on behalf of the Independent Children’s Lawyer, and it was put to Ms S that the respondent’s proposal to take the children, and particularly Y who at the time would have been about 15 months of age, away from his primary carer, the applicant, for a period of about three weeks, demonstrated that the respondent was not showing a very child-focused attitude.
Ms S did not agree with that proposition, as plainly put, because there were many other factors that come into play, including the quality of the relationship between the children and the respondent, the respondent’s ability to comfort the children if they were upset, and her ability to promote them having contact with the applicant, and all of those factors are balanced with the benefit to the children of having the opportunity to meet the respondent’s extended family, their extended family.
In considering the evidence relating to the issue of overseas travel by the children with the respondent to Country B, in particular, I find that such travel does not present such a risk to the children as to justify orders being framed so that it cannot take place, particularly in view of the evidence that the parties undertook that trip with X in 2015, and the evidence of the respondent that she has sufficient knowledge of the prevailing circumstances in Country B to ensure that the children can be kept safe at all times, and in particular, heightened risk can be avoided.
In relation to the Respondent’s proposed trip with the children to Country B in December 2020, I will consider whether or not such trip is in the best interests of the children after my consideration of the matters referred to in section 60CC of the Family Law Act 1975 (Cth) (“the Act”). For the next occasion proposed by the respondent, that would occur four years thereafter, in 2024, Y would be eight years of age, and a trip duration of three weeks would not of itself be inappropriate by reason only of Y’s separation from his primary caregiver during his infancy years and primary attachment.
The children’s names
X’s name on his birth certificate is X Aldous-Samways. Y’s name on his birth certificate is Y Aldous-Samways. The applicant says that at the time of their birth, she agreed that the children have her surname as an additional middle name, and have the respondent’s surname as their surname. The respondent says that when the parties discussed which of them would be the children’s birth mother, it was agreed that if she was to give up the option of being the birth mother, the children would carry her surname.
The applicant sought an order in her amended initiating application at the start of the hearing that the parties do all things necessary to change the children’s surnames from Samways to Aldous-Samways on their birth certificates, in effect adding a hyphen between their last middle name and their surname so as to create a new “double barrel” surname. The respondent, in her amended response at the beginning of the hearing, sought an order that the parties take all reasonable measures to ensure that the children continue to be known by the surname “Samways”.
The respondent continued to seek that order in her amended orders sought, tendered to the Court during the hearing. During the hearing, the Court was informed by Counsel for the applicant that she would accept an order that the children’s surname be altered to “Samways-Aldous”, in that regard addressing the evidence of the respondent in paragraph 154 of her affidavit that she was:
…concerned that if the children are given the name Aldous‑Samways, Ms Aldous will drop off the ‘Samways’ part of the name, and the children will become known as Aldous.
Of course, an order in relation to any change to the children’s names is a parenting order, and in making any parenting order, the best interests of the children must be the paramount consideration. The children’s best interests is not the only consideration – the wishes of the parties, as expressed in the orders they seek and the evidence they give in relation to the issue of change of name, is relevant and should be considered by the Court, but consideration of those wishes must always take second place to consideration of what is in the best interests of the children as regards any change to, or refusal of a change to, the children’s names.
I will revisit this issue after my consideration of the factors set out in section 60CC of the Act that the Court must consider in determining what is in the children’s best interests.
The school to be attended by X
The applicant lives in Town F. The respondent lives in Town L. The two towns are, on the evidence, about 10 minutes apart by car travel. X commenced school at the start of 2020 and, by my fault, despite this matter having been heard in June 2019, X has started school before final orders have been made. The issue may have been resolved by “performance” by X actually starting at one school or the other. Accordingly, and as I say once again, consequent upon the delay entirely at my fault, I am uncertain if there is still an issue between the parties as to which school X should attend.
The applicant proposes an order that X attend Town F Public School, and the respondent proposes an order that X attend Town L Public School. Both parties give some evidence in relation to the issue of the school to be attended by X, the applicant in paragraph 71 of her Affidavit, and the respondent in paragraphs 156 to 159 of her Affidavit. In view of the passing of time and the circumstances that X will have started at a school, I will not decide that issue in these reasons, but will give the parties an opportunity to put further matters by way of evidence and submissions before the Court without undue formality and expense, if the school to be attended by X is still an issue between them.
I extend my apology to each of the parties and to the Independent Children’s Lawyer for causing that circumstance by the delay in producing these reasons.
The competing proposals of the parties
The parenting orders proposed by the applicant are set out in her amended initiating application filed 21 September 2018. They are, in summary form, as follows:
a)That the surname of each child be changed from “Samways” to “Aldous-Samways”, and that the parties do all things to have the change of surname noted on the children’s birth certificates and with all institutions and authorities at which the children’s names are recorded.
b)That the children live with the applicant.
c)That the children spend time with the respondent for a period of six months in a fortnightly cycle:
i)In week 1, from 6.45 Am to 6.30PM on Tuesday;
ii)In week 2, from 5 PM Friday to 5 PM Sunday;
iii)In week 2, from 6.30 PM Monday to 6.30PM Tuesday.
d)From the time X commences in school, in a fortnightly cycle for a period of six months:
i)Each week, from after school or day care on Monday to the start of school and day care on Tuesday; and
ii)Each alternate week, from after school and day care on Friday to 5 PM on Sunday.
e)Thereafter, each week from the end of school and day care on Monday to the start of school and day care on Tuesday, and each alternate week, from the end of school and day care on Friday until 5 PM on Sunday, and for one additional night per fortnight, as agreed between the parties.
f)For one half of each school holiday period at the end of Terms 1, 2 and 3, as agreed between the parties, and in the absence of agreement, for the first half of each school holiday period in odd‑numbered years, and for the second half of each school holiday period in even-numbered years.
g)That the children spend time with the respondent during the Christmas school holidays at the end of term 4, on the same basis as during school term time, plus an additional two periods of up to seven days, provided the respondent gives the applicant 12 weeks’ notice of the dates for those additional two periods of up to seven days.
h)The applicant proposes a sharing of the children’s time between the parties on an equal basis for the Easter period, between 6 pm Easter Thursday and 6 PM Easter Monday, for the Christmas period, between 9 AM on 24 December and 9 AM on 28 December.
i)That the children live with the applicant on Mother’s Day.
j)That the children spend time with the respondent at such further times as may be agreed between the parties.
k)That for the purpose of changeover, unless otherwise agreed between the parties, changeover take place at X’s school on school days, and at McDonalds family restaurant at Town F on non-school days, with 24 hours’ notice being given of a third party attending changeover on behalf of either of the parties.
l)Defining that school holidays commence at 3 PM on the last day of school and concluding 6 PM on the day before commencement of school, calculated from the last day of school until and including the day immediately before school resumes, include pupil-free days, and that the respondent’s alternate weekend time with the children will resume on the first weekend after the resumption of school if the children were with the applicant for the second half of school holidays, and on the second weekend after the commencement of school if the children were with the respondent for the second half of school holidays.
m)That the parent who has care of the children facilitate the children having telephone or Facetime communication with the other parent on at least one occasion each day, at times to be agreed, and at other times according to the children’s wishes, with the parent facilitating the communication avoiding distractions for the children during the call, and not interfering with the call, and that communication taking place for a reasonable period, taking into account the schedule of the household where the children are staying.
n)That each party agrees not to consume alcohol beyond the legal limit for driving whilst the children are in their respective care, or for 12 hours prior to the children coming into their respective care.
o)That each party agrees not to consume any illicit substances while the children are in their respective care, or for 12 hours prior to the children coming into their respective care.
p)That in the event that either party is unable to personally care for the children for a period of more than 24 hours while the children are in that parent’s care, then the parent is to notify the other parent at least 48 hours in advance (except in the case of an emergency involving the parent), in the first instance, to ascertain whether the other parent is available to care for the children.
q)That unless otherwise agreed, each parent is permitted to travel with the children within Australia for holidays or for other short periods of time, provided that they give the other parent at least four weeks’ written notice of the proposed travel, it is during the children’s scheduled time with that party (unless otherwise agreed to by the other party in writing, and each party will not unreasonably withhold consent), that it is not during school term time, unless agreed by both parents and consented to by the children’s school, and that the travelling parent provide to the other parent an itinerary, including the dates the children will be leaving and returning to Sydney, any flight details, including carrier and flight number, telephone number and addresses of where the children will be staying during their absence from Sydney.
r)Each party is restrained from making application for an Australian passport, or any other passport for the children.
s)Each party is at liberty to attend any day care, school, sporting, cultural or religious activity in which the children are involved or participating, and to which parents are also able to attend or participate.
t)Each party to maintain a separate wardrobe of clothing for each child at their respective homes, such clothing to include school uniforms and sports uniforms and equipment, and that when that clothing is worn by the child at the home of the other parent, then that parent is to ensure that the clothing is returned to the other parent as soon as practical, and/or the clothing is worn by the child at the time of the changeover.
u)That each parent give the other parent at least four weeks’ notice of any intention to move from their current residential address.
v)That unless otherwise agreed, each parent will not move more than 10 kilometres from their current residential address, unless it is closer to the other parent’s residence.
w)That each party be restrained from denigrating the other party or anyone associated with the other party, in the presence or hearing of the children, and that each parent not allow any other person to do so.
The applicant also proposed a number of orders for ensuring that each of the parents is able to obtain information in relation to the children’s school education and health on an equal basis, and that they be informed by the other party of any illness, hospitalisation, accident or medical attention involving the children, and any change to residential addresses, landline telephone numbers, mobile telephone numbers or persons with whom the other parent is living (whether temporarily or permanently).
The orders sought by the respondent are as follows:
a)That the parties have equal shared parental responsibility for the children.[1]
[1] A final order to this effect was made by consent on 15 June 2018, and is not an issue in dispute between the parties.
b)That the parties are not required to consult the other when making decisions while the children are in their care about issues that are not major long-term issues.[2]
[2] An order in relation to “day‑to‑day issues” is not necessary, due to the provisions of section 65DAE of the Family Law Act 1975.
c)That the children live with the applicant.
d)That the children live with the respondent, as agreed between the parties, but failing an agreement, as follows:
i)Each alternate week, from the end of school and childcare (or 3.30 PM if not a school/childcare day) on Monday, until the start of school and childcare (or 9 AM if not a school/childcare day) on Wednesday; and
ii)In the same week from the conclusion of school and childcare (or 3.30 PM if not a school/childcare day) on Friday, until the start of school and childcare (or 9 AM if not a school/childcare day) on Wednesday in the following week.
OR IN THE ALTERNATIVE:
iii)Each alternate week from 5 PM on Sunday until the start of school and childcare (or 9 AM if not a school/childcare day) on Wednesday; and
iv)In the same week from the conclusion of school and childcare (or 3.30 PM if not a school/childcare day) on Friday, until the start of school and childcare (or 9 AM if not a school/childcare day) on Tuesday in the following week.[3]
[3] Each alternative constitutes a shared care arrangement, the first alternative representing a 2/2/5/5 arrangement, and the second alternative representing a 3/2/4/5 arrangement.
v)That unless otherwise agreed, changeovers occur at the children’s childcare or school, or if not a school day/childcare day, by collection from the residence of the other parent.
vi)That each of the parties be permitted to authorise a representative to collect the children if they are not able to attend personally.
vii)That the parties agree that they will make all reasonable efforts to make changeover respectful and amicable for the children.
viii)That the children live with the respondent for one half of the school holidays at the end of terms 1, 2 and 3, as agreed, and failing agreement, for the first half of school holidays commencing in even-numbered years, and for the second half of school holidays commencing in odd-numbered years, and that the alternate week living arrangements be suspended during school holidays.
ix)That the children live with the respondent one half of the Christmas school holiday period at the end of term 4, as agreed, and failing agreement, for seven nights between 9 am on 28 December and 9 AM on 4 January, and for 10 nights between 9 AM on 18 January and 9 AM on 28 January in odd-numbered years, and for seven nights between 9 am on 21 December and 9 AM on 28 December, and for 10 nights between 9 AM on 9 January and 9 AM on 19 January in even-numbered years.
x)That the children live with the respondent during the Easter weekend, as agreed, and failing agreement, from 5 pm on Easter Thursday until 5 PM on Easter Monday in even‑numbered years, and to live with the applicant from 5 PM on Easter Thursday until 5 PM on Easter Monday in odd-numbered years.
xi)That the children be permitted to travel with the respondent to Country B for a period of up to three weeks in December 2020 to January 2021, and every four years thereafter, as agreed, and failing agreement, from 9 AM on 20 December to 9 AM on 10 January.
xii)That the respondent’s alternate week time with the children resume following school holidays in the same pattern as would have occurred had the school holidays not intervened.
xiii)That each of the parties initiate and facilitate the children in having communication with the other parent by Facetime, as agreed between them, but failing agreement, with the respondent between 5.30 PM and 6 PM every Friday that the children are not living with the respondent, and with the applicant between 5.30 PM and 6 PM every Sunday that the children are not living with the applicant.
xiv)That each of the parents be permitted to communicate with the children by Facetime on the children’s birthdays, on the parent’s birthday, and on Mother’s Day when the children are not living with them.
xv)That unless otherwise agreed by both parties, the children attend Town L Public School for their primary schooling.
xvi)That each party is at liberty to attend the first day of school at the start of the new school year for both children, and make all reasonable efforts to make the event as positive as possible for the children, and to attend any childcare, school, sporting, cultural or religious activity in which the children are involved or participating, and to which parents are also able to attend or participate.
xvii)Provided that the parties agree in writing that the children be enrolled in any particular extra-curricular activity, that each parent ensure that the children attend that activity regularly.
xviii)That unless otherwise agreed, each party will not move more than 100 kilometres from their current residential address, unless it is closer to the other parent’s residence.
xix)That the parents not criticise or denigrate the other party or the other party’s family in the presence or within the hearing of the children, or allow the children to remain in the presence or within hearing of any other person denigrating the other party.
xx)That each parent encourage and not undermine each child’s relationship with the other parent.
xxi)That the parties take all reasonable measures to ensure that the children continue to be known by the surname “Samways”.
xxii)That the parties take all reasonable measures to ensure that the children have valid passports.
xxiii)That the Australian Federal Police be instructed to remove the names of the children from the airport watch list at all points of international arrival and departure.
xxiv)That the parties be permitted to travel overseas with the children, as agreed, and failing agreement, during the periods when the children are living with them, on the following conditions:
a) The relevant party notify the other party in writing at least four weeks prior to the date of intended international travel;
b) That upon booking overseas travel, the travelling parent forthwith notify the other parent in writing, and provide them with an itemised itinerary for their travel, period including details of departure and return dates for all flights, and details of the airline cruise companies, and copies of all travel bookings, telephone numbers on which the children can be contacted, details of the children’s accommodation during their absence from the country, and details of necessary immunisations and travel insurance, including copies of the relevant documents.
xxv)That if either party intends to take the children interstate within Australia for a period of more than five nights during periods when the children are living with them, they will notify the other party in writing no less than three days beforehand of the dates of travel, including the accommodation and address where the children will be staying, together with the contact telephone number.
xxvi)That in the event of any dispute as to the interpretation, implementation or enforcement of the orders, including any claim by a party that it should be varied, the parties will first attend family dispute resolution with a family dispute resolution practitioner appointed by the parties, and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute will nominate three family dispute resolution practitioners, one of whom will be chosen by the other party within 14 days.
In addition, the respondent also proposed the usual orders in relation to both parties obtaining all relevant documentation and information from the children’s schools and childcare centres, each party obtaining all relevant information in relation to the children’s health, medical treatment and health professionals attended by the children, that each party keep the other party informed in relation to the children’s health and any health issues affecting the children whilst in the parent’s care, including visits to any medical treaters, and details of any medication prescribed, and keep each other advised of any change of telephone number or residential address, and of the details of other persons living at the parent’s home.
The Independent Children’s Lawyer proposed the following orders:
a)That the parties have equal shared parental responsibility for the children (not in dispute between the parties).
b)That the parties each have parental responsibility for decisions for the children’s day-to-day care during periods when they are living with or spending time with them.[4]
[4] Taken care of by section 65DAE of the Act
c)That the children live with the applicant.
d)That the children spend time with the respondent, as follows:
i)In week 1, from after school and preschool (or 5 PM if a non-school day) on Monday, until start of school and preschool (or 5 PM if a non-school day) on Wednesday.
ii)In week 2, from after school and preschool (or 5 PM if a non‑school day) on Friday, until the start of school and preschool on Monday.
iii)For five consecutive days and nights during the school holidays at the end of terms 1, 2 and 3 in 2020, as agreed between the parties, and failing agreement, from 5 PM on Thursday until 5 PM on Tuesday over the weekend that the respondent would normally be spending time with the children.
iv)For two periods of six consecutive days and nights during the school holidays at the end of term 4 in 2020, on two weekend periods that the respondent would normally be spending time with the children.
v)For seven consecutive days and nights in the school holidays at the end of terms 1, 2 and 3, as agreed between the parties, and failing agreement, in the first week of the school holidays from 9 AM Saturday until 9 AM on the following Saturday in even-numbered years, and in the second week of the school holidays from 9 AM Saturday until 9 AM on the following Saturday in odd-numbered years.
vi)Until Y commences school attendance, for two block periods in the school holidays at the end of term 4, as agreed between the parties, and failing agreement, the applicant to select one block period of eight days in December, and the respondent to select one block period of eight days in January, and each party to provide to the other, six weeks’ notice of the dates chosen.
vii)That upon Y commencing school, the children spend half the Christmas school holidays at the end of term 4 with the respondent in blocks, as agreed between the parties, and failing agreement, in alternating weeks.
viii)Orders providing that the parties share equally in alternating years the period of Christmas, between 9 AM 24 December and 9 AM 28 December, the period of Easter, between 5 PM Easter Thursday and 5 PM Easter Monday, the children’s birthdays and the parent’s birthdays, and for Mother’s Day, with the applicant from 9 AM to 5 PM in even-numbered years, and with the respondent from 9 AM to 5 PM in odd‑numbered years.
ix)In the event that a party is unable to personally care for the children for a period of more than 24 hours while the child is in that parent’s care, then the parent is to notify the other parent at least 48 hours in advance (except in the case of an emergency involving the parent), in the first instance, to assert whether the other parent is available to care for the child.
x)For the purpose of changeover and unless otherwise agreed between the parties, changeover take place at school on a school day, and at McDonalds family restaurant at Town F on non-school days, until the start of school year 2020, and thereafter to take place at school on a school day, and at the residence of the parents (sic) on non-school days.
xi)The parent with whom the children are living or spending time will facilitate the children having telephone or Facetime communication with the other parent twice a week, at times to be agreed, and at other times when the children express a wish to do so, and the parent facilitating the communication will not interfere with the call during the communication time.
xii)Unless otherwise agreed, each party is permitted to travel with the children within Australia for holidays, or for other short periods of time, provided each party will give the other party at least four weeks’ written notice of the proposed travel, if it occurs during the children’s scheduled time with that party, unless otherwise agreed, and that once the children commence school, that it not occur during school term time, unless agreed by both parents and consented to by the children’s school, and that the non-travelling parent is provided with an itinerary that includes the dates the children will be leaving and returning to Sydney, any flight details, including carrier and flight number, telephone number and address of where the children will be staying during their absence from Sydney.
xiii)That upon Y reaching the age of five years, the parties are permitted to travel overseas with the children to any Hague Convention country for a period not exceeding three weeks, or such other time is agreed between the parties.
xiv)That the parties are restrained from consuming alcohol beyond the legal limit for driving whilst the children are in their respective care, or for 12 hours prior to the children coming into their respective care.
xv)That the parties do not criticise or denigrate the other party or the other party’s family, in the presence or within hearing of the children, or allow the children to remain in the presence of or within hearing of any other person who is denigrating the other party.
xvi)That the parties forthwith do all acts and things and sign all documents necessary to change the children’s surnames to “Samways-Aldous” on their birth certificates and all institutions and authorities at which the children’s names are recorded.
xvii)That the parties continue attending family therapy as and until such time as recommended by the family therapist.
The Independent Children’s Lawyer also sought the usual orders relating to provision of information about education, health, changes of residence, telephone numbers and so forth.
The children’s best interests
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
There is no requirement that the Court consider the question of best interests of the children or reasonable practicability in any particular order, but it has been suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115 at paragraph 38, that a logical approach would be to first making findings concerning the relevant section 60CC factors, to then consider, based on the section 60CC findings, whether equal or substantial and significant time is in the children’s best interests, and then to consider whether such arrangements are reasonably practicable by addressing the matters referred to in section 65DAA(5) which may be done by referring back to the earlier section 60CC findings.
As already stated, the parents consented to a final order that they had equal shared parental responsibility for the children on 15 June 2018. For neatness, and it not being in issue between the parties, I will reiterate that final order, that the parties have equal shared parental responsibility for the children in the orders I will make at the conclusion of these reasons. That being the case, I will need to consider the matters set out in section 65DAA as to whether or not the children spending equal time with each of their parents would be in their best interests and reasonably practicable and, if so, consider making an order providing for the children to spend equal time with each of the parents.
If I consider that it is not in the children’s best interests or reasonably practicable for them to spend equal time with each of their parents, I will consider whether the children spending substantial and significant time (as defined in section 65DAA(3)) with each of their parents is in their best interests and reasonably practicable, and if so, consider making an order providing for the children to spend substantial and significant time with each of their parents. If I find that it is not in the children’s best interests or reasonably practicable to spend substantial or significant time with each of their parents, then I will determine what orders in relation to the sharing of the children’s time between the parents are proper (section 65D) regarding the best interests of the children as the paramount consideration (section 60CA).
Accordingly, the first step is to consider the matters set out in subsections (2) and (3) of section 60CC. The primary considerations in section 60CC are the benefit to the children of having a meaningful relationship with both of their parents and any need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In considering those primary considerations, I must give greater weight to any need to protect the children over the benefit of the children of having a meaningful relationship with both of their parents.
I have already found in my consideration of the evidence that the only asserted risk in this matter that gives rise to a need to protect the children from physical or psychological harm is in relation to the applicant’s assertion that the respondent’s use of alcohol and marijuana gives rise to a risk. I have found that the applicant’s evidence in that regard, taken at its height, does not give rise to a finding of risk to the children. Accordingly, the primary consideration in this matter of the benefit to the children of having a meaningful relationship with both of their parents is the relevant primary consideration subject to, as I have said, an appropriate order being made restraining the respondent from using marijuana for a relevant period before and during the children being in her care.
What is meant by a “meaningful relationship” within the terms of section 60CC(2)(a) has been considered by the Full Court on several occasions, and it’s meaning goes to the quality of the relationship, not the quantity, as in time spent. A meaningful relationship is one that is significant, of importance, of consequence. The task of the Court is to weigh the evidence at the date of hearing and determine how, if it is in the children’s best interests, orders can be framed to ensure that the children have a meaningful relationship with both of their parents – McCall & Clark [2009] FamCAFC 92.
As was said by Kay J, sitting as the Full Court in Godfrey & Sanders [2007] FamCA 102:
What the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In this matter, X and Y have, from the time of their birth, been principally cared for by the applicant. That she has been their primary carer is not in dispute. Self-evidently, the children have a meaningful relationship with the applicant. There is no need to parse through the evidence to justify a finding to that effect; the whole of the evidence gives that result. The respondent was a co-carer with the applicant for the children from the time of each of their births until the parties separated on 4 August 2017, when X was three years and six months of age and Y was one year old.
Since the parties separated, the children have continued to spend time with the respondent, such that since November 2018, they have been in the respondent’s care for three nights and four full days each fortnight. I find that on the totality of the evidence, the children have a meaningful relationship with the respondent. The children know the applicant and the respondent as their parents. They refer to the applicant as “Mummy” and to the respondent as “Mamma”. They refer to the applicant’s home as “Mummy’s home” and to the respondent’s home as “Mamma’s home”. The benefit to the children of having a meaningful relationship with both of their parents is that they will grow up with their two-parent contact, two parent influence and the benefit of the love and guidance of each of their parents, though in separate households.
On the whole of the evidence, to remove the opportunity for either of these children to continue and further develop their meaningful relationship with either of their parents, would be to cause them a loss and to enter a period of grieving, and it would have an effect on their future personality development, that on the evidence cannot be known, but will certainly be to their detriment.
Under the proposal put forward by the applicant in relation to the time the children would spend with her and with the respondent, the children would still be spending the greater part of their time with her – 10 nights per fortnight – and four nights per fortnight with the respondent.
I find that in the circumstances of this matter where there is no risk (other than that addressed by the injunctive order effecting the respondent in relation to marijuana), that spending only four nights per fortnight with the respondent, even allowing for them eventually spending half of each school holidays with the respondent, does not provide to the children sufficient opportunity to benefit from their meaningful relationship with the respondent.
Just what the balancing of the sharing of time between the parents should be, in the best interests of the children, I will examine further in consideration of section 65DAA, after my consideration of all of the relevant factors in section 60CC.
In relation to the relationship between the respondent and the children, I note, particularly, paragraph 87 of the Family Report:
When Ms Samways arrived and came into the childcare area (with Ms C and M), Y ran to Ms Samways to hug and greet her. X also seemed very pleased to see Ms Samways and immediately monopolised M, so that they could play together. When Ms Samways was leaving the childcare area, Y quickly became distressed and starting crying and clinging to her. He tried to follow her out of the childcare and, while Ms Samways attempted to comfort him, Y resumed crying as soon as she tried to leave.
Paragraph 90 of the Family Report:
X also seemed to be focussed on M and was very keen to return to the childcare area so that he and M could resume their play. He spoke a little about his parenting arrangements and sounded quite angry, at times, that he does not spend more time with M.
At a second interview session with Family Consultant for preparation of the Family Report, occurring about a month after the first session, the family report writer notes the following, in paragraph 94:
There was further conversation and X said that he also feels sad because he wants to spend more time with ‘Ms Samways’ (Ms Samways). He said that he spends about 10 days with ‘Mummy’ (Ms Aldous) and hardly any time with ‘Ms Samways’. He told the family consultant that his mothers do not speak to each other and that they do not like each other. He said that Ms Aldous and Ms Samways only spend about one minute together.
It is fair to add that in paragraph 95 of the Family Report, the Family Consultant notes:
At one point, he [X] said he has changed his mind, and he wants to spend more time with Ms Aldous. Then he said he wants to spend the same amount of time with each. He said that he doesn’t want to move all the time. After some further play and conversation about his activities and friends, X said (in response to a question) that he wishes, ‘Most of the time, that he could go to ‘Ms Samways’.
Again, in paragraph 97:
There was further conversation about Y’s likes and dislikes and he said that he likes it when he spends longer time at ‘Mamma’s. He was asked why and he said that he is sad when he has to go. He said that he does not feel sad when he has to go from ‘Mummy’s’.
I note, from the evidence, and as reported in paragraph 89 of the Family Report, that the children refer to the applicant as ‘Mummy’ and to the respondent as ‘Mamma’.
The family report writer noted in paragraph 99:
X and Y presented as having strong relationships with both their parents. They seem comfortable and familiar with either Ms Aldous or Ms Samways attending to them.
In paragraph 101:
X seemed to consider M an important friend and playmate.
In paragraph 101:
Both X and Y seemed very comfortable with Ms Aldous’ parents and to draw on them for support. Both boys seemed equally comfortable with Ms C.
The children’s views
X is six years of age and Y is three years and six months of age. At the time of the interviews for the Family Report in March and April 2019, X was five years of age and Y was two and a-half years of age. The wishes expressed by the children should not be given any great weight in this matter, but are useful in evaluating the strength of the relationship between the children and the respondent, and therefore their ability to cope with longer periods of time in her care than has been the case since the arrangement made in November 2018, and followed by the parties up to the hearing.
The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues, in relation to the children and to spend time with the children and to communicate with the children
There is not a great deal of relevance of this consideration to the issues in these proceedings, given that both of these parents have taken every opportunity afforded to them to participate in making decisions about the children’s long term issues, to spend time with the children and to communicate with them. The respondent, through these proceedings, seeks to extend the time she spends with the children and her communication with the children.
As a final order exists, and will be repeated, that the parents have equal shared parental responsibility for the children, then they will be bound by the statutory requirements found in section 65DAC, which require that they consult one with the other in relation to any decisions relating to the children’s long term care, welfare and development, and make a genuine effort to come to a joint decision about those issues.
Though there is some evidence in the trial Affidavit of the respondent that the applicant has, at times, acted in a unilateral manner in relation to using her preferred surname arrangement for the children rather than their surname evidenced on their birth certificates, I do not find that there is any basis to believe that either parent has acted to cut the other parent out of participating in making decisions about major long term issues for the children, or will attempt to do so in the future.
Two long term decisions for the children are issues in this litigation, outside of the issue as to the time the children spend with each parent, being the children’s surname and the school to be attended by X. As stated previously, the school issue may have resolved itself, and if not, it will have to be the subject of decision, and the surname issue will be settled by orders made as a result of these reasons. It is to be hoped that the consultation leading to a decision concerning the school to be attended by Y will be “led” by the fact of the school being attended by X and, happily, at the present time and hopefully for the whole of the future, there are no long term health decisions looming for either child.
The first occasion of Christmas school holidays will be those at the end of term 4 in 2020, some eight months away from the time at which final orders will be made. In the best interests of the children, I find that the proposal for the sharing of time during the Christmas school holidays proposed by the respondent is the most appropriate. Why? Because rather than the applicant’s restrictive proposal where the respondent may only spend a maximum of seven days with the children in any one block during the Christmas school holidays, and must give notice presumably even before the commencement of term 4 of her chosen dates, or the proposal of the Independent Children’s Lawyer which provides for the respondent having the children for either eight days twice during the holidays before Y commences school or week about once he commences school, the proposal of the respondent gives opportunity for vacation for the parent and children away from home for a period of more than a week. In saying that, I do note that it is my intention to make orders in relation to the time the children spend with each of their parents over the Christmas period and that those orders will be in accordance with those proposed by the applicant and the Independent Children’s Lawyer as I consider it is in the children’s best interests that future disputes about the Christmas period be avoided, no specific sharing of time over the Christmas period is sought by the respondent, the respondent’s proposal, pursuant to which orders will be made, that covers the Christmas period would not provide for the children to spend any time over the Christmas period with one of their parents, being in the sole care of the other throughout.
Change of name
I have referred to the parties’ evidence relating to change of name above and their competing contentions. The respondent seeks in effect to restrain any surname being used for the children other than “Samways”. The applicant seeks to have the children’s surnames changed from “Samways” to “Aldous-Samways”, and the Independent Children’s Lawyer proposes that the children’s surnames be changed to “Samways-Aldous”. During the hearing Counsel for the applicant advised the Court that the applicant was accepting of the proposal of the Independent Children’s Lawyer, that the children’s surname becomes “Samways-Aldous”. In the respondent’s Affidavit at paragraph 154, she says:
I am also concerned that if the children are given the name Aldous-Samways, Ms Aldous will drop off the “Samways” part of the name and the children will become known as Aldous.
In paragraph 155:
It was my father’s wish before he died in 2018 that the children continue to carry the Samways name.
The parents’ wishes are not the relevant criteria. It is for the Court to determine what order is proper to be made in relation to the children’s surname with the best interests of the children as the paramount consideration. I do not have evidence in relation to the children’s sense of self-identity so far as it relates to their surname and use of their surname.
I am assisted by Ms S in the Family Report where she says at paragraph 132:
Another issue to consider is whether the children’s surname should be changed to include a hyphenated version of both parents’ surnames, as proposed by Ms Aldous. It is common for parents to want both their names to be part of the children’s surnames, especially after a separation has occurred. This is usually a more significant issue for parents, than it is for children. When children’s names are changed, it is generally considered better for this to occur as early as possible, before children become familiar with the name as part of their identity. In this situation, Ms Samways and Ms Aldous may be able to come to an agreement about the children’s name, when there is more clarity about the future parenting arrangements.
As indicated above, I have found that it is in the best interests of the children to move through a step to a shared care arrangement. The children will grow up spending about equal time in the household of each of their mothers and will be acutely aware of their mothers’ differing surnames. X is six years old and Y is three and a half years of age. I have not been referred to any social science other than the quoted paragraph in the Family Report that assists me in relation to the effect of surname change on a child at particular ages, but I find that it is in the best interests of the children to adopt the surname of each of their parents, that the surname be a hyphenation of their parents’ surnames, and that the first of the hyphenated names be “Samways”. Accordingly, I will make an order that the parties do all things necessary to effect a change of the children’s surnames to “Samways-Aldous” on their birth certificates and at all institutions and authorities at which the children’s names are recorded.
Special occasions
No orders are sought by the respondent covering the care of the children or the sharing of the care of the children on the children’s birthdays, the parents’ birthdays or on Mother’s Day. The applicant does seek particular orders dealing with the children’s birthdays, the parents’ birthdays and Mother’s Day. The applicant proposes that the children be in her care each Mother’s Day – “the children are to live with the applicant on Mother’s Day” – but does not specify when they would come into or leave her care if it is across a period when they would otherwise be in the respondent’s care. The Independent Children’s Lawyer proposes that the parties share the care of the children on Mother’s Day as agreed between them, and in the absence of agreement, that the children live with the applicant mother from 9 AM to 5 PM in even-numbered years on Mother’s Day and with the respondent from 9 AM to 5 PM in odd-numbered years on Mother’s Day.
As the respondent does not seek any specific order in relation to Mother’s Day, I will make the orders sought by the applicant, slightly qualified by that proposed by the Independent Children’s Lawyer, that is, that the children be in the applicant’s care each Mother’s Day from 9 AM until 5 PM.
As the applicant seeks specific orders relating to children’s birthdays and the parents’ birthdays and no such orders are sought by the respondent, I will make the orders sought by the applicant.
Both parties seek specific orders in relation to the time the children spend with the parties over the Easter period, as does the Independent Children’s Lawyer. The only difference between the orders sought by the applicant and those sought by the Independent Children’s Lawyer relating to Easter are that the applicant commences times at 6 PM and the Independent Children’s Lawyer commences times at 5 PM. Unfortunately, once again, the proposals of the applicant and the respondent differ – the applicant proposes that the Easter period be shared in that the children be with one parent from 6 PM Easter Thursday to 6 PM Easter Saturday and then the other parent from 6 PM Easter Saturday to 6 PM Easter Monday, alternating each year, whilst the respondent proposes that, failing an agreement, the children be with one parent from 5 PM on Easter Thursday until 5 PM on Easter Monday, alternating between odd- and even-numbered years. In the best interests of the children, I prefer the proposal of the applicant, that the children have the opportunity to share the Easter period between their parents, but I adopt the starting times as proposed by the respondent and the Independent Children’s Lawyer – 5 PM. Accordingly, I will make an order that the children be in the care of the applicant from 5 PM Easter Thursday until 5 PM Easter Saturday in odd-numbered years and 5 PM Easter Saturday until 5 PM Easter Monday in even-numbered years, and the reverse for the respondent.
Changeovers
The applicant proposes that any changeovers that do not occur at school (initially X’ school but ultimately X and Y’s school) are to occur at McDonald’s at Town F, that if a third party is to attend changeover on behalf of either parent the other parent is to be given at least 24 hours’ notice, and that if there is an emergency preventing a parent from collecting the children at changeover they will stay with the other parent until the emergency has passed and the other parent can collect them. The respondent’s proposal is that any changeovers that do not occur at school will occur by collection of the children by the parent into whose care they are moving from the residence of the other parent. The Independent Children’s Lawyer’s proposal is in effect the same as the respondent’s proposal. The respondent seeks an order that the parties be permitted to authorise a representative to collect the children if they are unable to attend changeover personally, but is silent on the “emergency” provision, whilst the Independent Children’s Lawyer makes no proposal in relation to changeover by a third party but repeats the applicant’s emergency proposal.
Changeover has been an area of some difficulty for the parties. The respondent gives detailed evidence of events occurring at changeover, mainly to do with what she asserts was unnecessarily aggressive conduct on the part of the applicant at some changeovers, including some unfortunate conduct asserted to have occurred on the part of the applicant. In the light of the evidence of the parties in cross-examination about the incidents referred to, and most particularly the incident asserted to have occurred on Sunday 29 July 2018 when the applicant noticed the respondent’s partner, Ms C, at the venue for changeover, I find that the conduct of the applicant on that occasion was largely as described by the respondent and by Ms C in paragraph 59 of her Affidavit.
This is not a matter with risk. This is not a matter with family violence. This is a matter where the best interests of the children would be served by them feeling that there is a friendly and cooperative relationship between their mothers – that the children feel that because they are given that impression by their mothers even if there is not, and there need not actually be in the light of even the most simple understanding of human relations, a friendly relationship between their mothers – and that impression can be best conveyed to the children by normalising interactions as far as possible, by taking them away from the public places and moving them to the children’s homes. Their home with “Mummy”. Their home with “Mama”.
Accordingly, I will make an order that changeovers that do not occur by collection from or return to school will occur by the parent into whose care the children are moving collecting the children from the home of the other parent.
Telephone communication
The applicant proposes that the parent with whom the children are not living at any particular time have telephone or face time communication with the children on at least one occasion each day at times to be agreed and at other times according to the children’s wishes. The respondent proposes that when the children are in her care on a Sunday, the applicant have face time communication with them between 5.30 PM and 6 PM, and that when the children are in the care of the applicant, the respondent have telephone communication with them between 5.30 PM and 6 PM on a Friday. The Independent Children’s Lawyer proposes that the children have face time or telephone communication with the parent with whom they are not living twice a week at times to be agreed and at other times when the children express a wish to do so. I am not given evidence by either of the parties which grounds their applications as to frequency of communication.
I am given some assistance by Ms S in the Family Report at paragraph 136:
Both Ms Aldous and Ms Samways raised some concerns about phone calls with X and Y. Again, this is usually a more significant issue for parents than it is for children, especially young children, who tend to be more interested in immediate, tangible activities, than speaking on the phone. If the parenting arrangements allow the children to spend substantial and frequent time with both parents, there may be less pressure about the children needing to make daily phone calls. Instead, there could be arrangements for one phone call during the children’s time with one parent and additional calls could be made when the children request this and when either parent perceives that the children need to do so. Both Ms Aldous and Ms Samways presents as capable of making this judgment in a child-focused way.
Based upon that assistance from Ms S, I intend to make an order that the children communicate with the parent who does not have care of them in about the middle of any occasion that is five or more nights long. I will also make an order that each of the parents facilitate the children telephoning or face timing the other parent on any occasion requested by the children.
Overseas travel and particularly with the respondent to Country B
The respondent seeks an order that will enable the parties to take the children outside Australia for the purpose of holidays, with at least four weeks’ notice to the other party. It is inherent in the orders sought by the applicant, particularly in that she seeks an order restraining each party from taking any action to obtain a passport for the children, that she opposes travel by the children outside Australia. The Independent Children’s Lawyer proposes that once Y attains the age of five years (after 2021) the parties be permitted to travel overseas with the children to any country which is a signatory to the Hague Convention for a period not exceeding three weeks or such other time as agreed between the parties.
In particular, the respondent seeks an order that the children be permitted to travel with her to Country B for a period of up to three weeks in December 2020 and January 2021 and every four years thereafter as agreed and failing agreement from 20 December at 9 AM to10 January at 9 AM. The applicant specifically opposes travel by the children to Country B and in her affidavit gives her evidence as to why she considers such travel not to be in the best interests of the children, despite X having accompanied the applicant and the respondent on a trip to Country B in 2015. As detailed above, her objections appear to be on three bases, her fear that the respondent will retain the children outside of Australia in Country B, which is not a Hague Convention country, or some other country, that the children will be exposed to or affected by violence whilst in Country B and her fear that Y may be a particular target for kidnappers in Country B due to his white blonde hair, blue eyes and pale complexion. I have made comment earlier in these reasons about the Department of Foreign Affairs and Trade travel warnings tendered and admitted into evidence in relation to Country B, Country A and Country H and as to my finding that on all of the evidence I consider the respondent to be capable of keeping the children safe when travelling to and staying in her country of origin, Country B.
The respondent gives evidence in paragraph 144 of her Affidavit:
I have no intention of relocating to another country with the children. I have lived in Australia for the majority of my adult life and this is my home. I have recently commenced an application to become an Australian citizen. I am in a committed relationship with Ms C, I have a good job that I really enjoy and I have a lifestyle that makes me feel fulfilled. I have no reason to want to relocate to another country.
I find that the respondent has strong ties to Australia.
The respondent also gives evidence:
I have chosen to make Australia my home. My mother and my sister and my sister’s family all live in Country B which is where I was born and brought up. I have strong emotional ties to Country B as the country of my childhood and many of my friends still live there. I try to visit Country B at least once every two years.
My mother is elderly and unwell. She suffers from emphysema and mobility issues and is unable to make the long journey to Australia.
The respondent annexes a copy of an Affidavit provided by her mother’s treating doctor that confirms that it is not recommended that the respondent’s mother travel to Australia.
I am given some assistance once again by Ms S in the Family Report at paragraph 133:
The issue of overseas travel involves two broad considerations. One is whether the children should travel to Country B to spend time with Ms Samways’ family and the second is whether Ms Samways (or either parent) can travel anywhere overseas with the children. Regarding the latter, there does not appear to be any reason why the children cannot travel overseas. There was no indication, from this assessment, that Ms Samways would suddenly relocate overseas. Her life in Australia seems to be well-established and she did not present as someone who would callously separate the children from a significant attachment figure, such as Ms Aldous.
The issue of travelling to Country B, however, seems more fraught. It is considered reasonable that Ms Aldous would have concerns about the children travelling to a country, if there are identified risks. It is also considered reasonable for Ms Samways to want the children to spend time with her family, especially an older grandparent. In terms of the benefits to the children, it may be a very rewarding experience for them in helping form their identity to be able to travel to Ms Samways’ home country, and meet their extended family. The benefit of this will need to be weighed against the possible risks.
In weighing the benefits to the children as expressed by Ms S in the Family Report and by the respondent in her Affidavit against the risks as expounded by the applicant in her Affidavit and in the exhibits, I find that the benefits outweigh the risks particularly in the light of my finding that the respondent is a person capable of keeping the children safe and accordingly I will make an order that the children may travel outside Australia with either parent and I will include the provision for giving adequate notice of intended travel so as to give the other parent every opportunity to make urgent application to court if they consider there are genuine grounds to have concerns in relation to any particular proposed travel. I further intend to make an order that the respondent may travel with the children to Country B, but I will order that such travel must fit within the respondent’s time with the children pursuant to the orders, unless otherwise agreed between the respondent and the applicant and such travel overseas or to Country B not occur at all with either parent until after 2021 when Y will be five years of age.
Travel within Australia
Both parties and the Independent Children’s Lawyer seek specific orders in relation the children travelling with a parent within Australia. The orders proposed by the applicant and by the Independent Children’s Lawyer relate to any trip by the children with a parent within Australia, whether interstate or not, and the orders sought by the respondent relate to travel interstate within Australia for a period of more than five nights. The order proposed by the applicant requires that each party is permitted to travel with the children within Australia for holidays or for other short periods of time provided that party will give the other party at least four weeks written notice of the proposed travel, provide an itinerary and that it occurs during that party’s time with the children. The inclusion of the words “or for other short periods of time” naturally means that if the children are to take a car trip with a parent to Suburb T in Sydney they must give four weeks’ written notice of the proposed travel, and itinerary and so forth and so on. That cannot be what was really intended. The order proposed by the Independent Children’s Lawyer is in the same terms. Surely that is not what the Independent Children’s Lawyer intended as being in the best interests of the children. The order proposed by the respondent relates to a parent taking the children interstate within Australia for a period of more than five nights during periods when the children are living with that parent and requires notification to the other parent in writing no less than three days beforehand providing details of dates of travel, accommodation addresses and contact telephone number.
I do not see a need to regulate travel by the children within Australia with a parent by requiring the giving of notice. Each parent is entitled to take the children on a holiday anywhere in Australia they like without having to get permissions from the other parent or risk a reflex court proceeding by the other parent, particularly when that holiday time within Australia would be occurring, in the absence of agreement otherwise, within that parents time with the children under the orders. I do not intend to make any order that relates to travel with the children “within Australia” or “interstate within Australia”. I cannot see how that is an order in the best interests of the children.
Passports
Fears in relation to overseas travel are expressed by the applicant. The respondent wants the children to have passports and travel overseas. If the children have passports and they are held by the applicant and provided by her to the respondent for the purpose of overseas travel either by agreement or under the orders, the applicant remains in control of those passports and has a recourse to the courts if she has a proper grounding for concerns about any proposed overseas travel by the respondent with the children. Accordingly I intend to make an order requiring each of the parents to cooperate in obtaining an Australian passport for each of the children, such passport to be retained by the applicant and to be provided by her to the respondent for the purposes of overseas travel when same is to occur, to be returned by the respondent to the applicant after the travel.
A separate wardrobe of clothes
The applicant seeks an order that each party is to maintain a separate wardrobe of clothing for each child at their respective home, such clothing to include school uniforms and sports uniforms and equipment and that when that clothing is worn by the child at the home of the other parent, then that parent it to ensure that the clothing is returned to the other parent as soon as practicable and/or that clothing is worn by the child at the time of the changeover to these arrangements.
I do not find any evidence in the evidence presented by the applicant to ground the making of that order. On all of the evidence in the matter I do not consider that such an order is necessary as between these parents or is in the best interests of the children and I will not make that order.
Restraint on moving place of residence
The applicant seeks an order that unless otherwise agreed each party is not to move more than 10 kilometres from their current residential address unless it is closer to the other parent’s residence. The respondent seeks an order that unless otherwise agreed each party will not move more than 100 kilometres from their current residential address unless it is closer to the other parent’s residence.
I have found that it is appropriate to make an order that, following one step of five nights with the respondent and nine nights with the applicant, the children spend equal time between their parents during school term time and school holidays. That can only work when it is, in the terms of section 65DAA(1)(b) of the Act, “reasonably practicable”, as I have found it currently to be as between these parents. If either parent were to move such a distance away from the residence of the other parent and such a distance away from the children’s school, that it would render impractical an equal care arrangement then it would render the orders impractical of performance. However, it is in the hands of either parent to make a move over a certain distance with the intention of still being able to perform the orders. In such even the best interests of the children must be kept in mind because what may seem to a parent to be still a reasonably practicable arrangement to continue with the shared care arrangement and the children attending their school may become onerous on the children if it involves too long a distance and too long a travelling time to and from school each day. With all of this in mind I consider that restraining the parents from moving outside 10 kilometres from their current place of residence is too onerous as restricting them too tightly as to the area in which they can choose to reside. On the other hand I consider that 100 kilometres from their current place of residence would make the children’s trip to and from school far too onerous and therefore not be in the best interests of the children. As a happy medium I consider that it is in the best interests of the children that unless otherwise agreed each party is restrained from relocating their current place of residence (and therefore the place of residence of the children whilst they are in their care) more than 40 kilometres from their current place of residence.
Both parties seek the restraint, they only differ in relation to the distance. I have made a finding in relation to that issue of the distance.
In relation to both parties’ reference to “unless it is closer to the other parent’s residence”, a move in excess of 40 kilometres from their current place of residence could not bring them closer to the other parent’s place of residence but as both parties have sought the inclusion of those words in the orders I will include them.
Notification of details
The parties have asked for similar orders, as has the Independent Children’s Lawyer, in relation to sharing of information in relation to the children’s preschooling, schooling, medical matters and exchange of information in relation to any change to residential addresses and telephone numbers. Both parties have sought an order that each party advise the other party of any other persons living in the party’s home. I will formulate orders that I consider reflect as closely as possible the consensus between the parties in relation to orders of that nature.
Non-denigration
Each of the parties and the Independent Children’s Lawyer propose that an order be made in relation to non-denigration of the parties and I will make such an order by way of a blending of the proposals of the parties and the Independent Children’s Lawyer in that regard.
Alcohol and marijuana
The applicant and the Independent Children’s Lawyer each seek an order in relation to consumption of alcohol. The orders sought by the applicant is in terms of “each party agrees not to consume alcohol beyond the legal limit for driving whilst the children are in their care or for 12 hours prior to the children coming into their respective care”. The order sought by the Independent Children’s Lawyer is to the same effect but expressed more appropriately as a restraining order. I have dealt with the issue of alcohol consumption, particularly by the respondent, in detail above. I find that there is no basis on the evidence for an injunctive order to be made in relation to consumption of alcohol. I find that I can leave that to the child-focused parenting of each of the parents.
As indicated earlier in these reasons I will make an order restraining the respondent from using marijuana at all whilst the children are in her care and for a period of 48 hours before the children come into her care.
A “First Option” order
The applicant and the Independent Children’s Lawyer each seek an order that in the event that a parent is unable to personally care for the children for a period of more than 24 hours whilst the children would be in that parent’s care then the parent is to notify the other parent at least 48 hours in advance (except in the case of an emergency involving the parent) in the first instance to ascertain whether the other parent is available to care for the child. I do not find that there is a need to make any such order, often referred to as a “First Option” or “First Right of Refusal” order. I find that circumstances envisaged by that order can be dealt with by these parents as they may arise in an appropriately child-focused manner.
Other issues
An order is sought by the Independent Children’s Lawyer that the parties continue attending family therapy as and until such time as recommended by the family therapist. No order in relation to family therapy is sought by either parent. Once again, I consider that attendance by the parties and children at family therapy is a matter that I can leave to the good sense and child-focused consideration of the parents and that they can consult together and make a genuine effort to come to any relevant joint decision about that issue in line with their obligations as parents with equal shared parental responsibility.
In relation to the issue of the school to be attended by X, as referred to earlier in these reasons the issue may have been solved by the performance given that in the long time between the hearing and the making of final orders, for which I apologise, X will have started school. However, if there is still an issue to be dealt with between the parties in relation to the school to be attended by X then I will give leave to the parties to re-list the matter and present further evidence, if they wish, for that issue to be dealt with fully but quickly and in the short term.
The Independent Children’s Lawyer seeks an order that the respondent pay the Independent Children’s Lawyer’s costs and disbursements in the sum of $7,134.98, payable to the Legal Aid Commission of New South Wales within 42 days of the making of final orders, unless the respondent receives a written waiver for fee payment from the Legal Aid Commission of New South Wales. The applicant is legally aided in the matter. The respondent is not legally aided. As indicated by me at the end of the hearing when I reserved judgment I will grant leave to the parties and the Independent Children’s Lawyer to provide written submissions to chambers in relation to the Independent Children’s Lawyer’s application for costs against the respondent.
On the basis of the reasons expressed in this judgment I make the final orders.
I certify that the preceding two-hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 31 March 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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