BABCOCK & WADDELL
[2018] FamCA 276
•30 April 2018
FAMILY COURT OF AUSTRALIA
| BABCOCK & WADDELL | [2018] FamCA 276 |
| FAMIILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks an order to relocate the child to Perth – Where the father opposes the relocation on the basis that it will adversely impact his meaningful relationship with the child – Where the ICL does not support the relocation – Where the child has a close relationship with the paternal family – Where the mother is found to be the parent with whom the child has the strongest and most reliant, confiding and emotionally attuned relationship – Where the mother’s mental health and sense of well-being is likely to be enhanced by the additional emotional support that she will receive from family and friends in Perth – Where the mother’s parenting capacity will be enriched by moving to Perth and the child will benefit – Relocation permitted. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65DAA, 65DAC |
| Adamson & Adamson (2014) FLC 93-622 Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 133 ALD 39 Re: TC and JC (Children: Relocation) [2013] EWHC 292 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sigley & Evor (2011) 44 Fam LR 439 |
| APPLICANT: | Mr Babcock |
| RESPONDENT: | Ms Waddell |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID NEW SOUTH WALES |
| FILE NUMBER: | SYC | 6272 | of | 2010 |
| DATE DELIVERED: | 30 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
HEARING DATE: | 4 - 8 September 2017, 27 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cummings SC |
| SOLICITOR FOR THE APPLICANT: | Tiyce & Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
THE COURT ORDERS THAT:
That the father and the mother shall have equal shared parental responsibility for X born … 2006 ('the child').
LIVE-WITH / SPEND TIME-WITH
That the child shall live with the Mother.
From 1 January 2019 the mother be permitted to relocate the child’s residence from the Sydney Metropolitan to the Perth Metropolitan area.
That the child shall spend time with the Father as follows:
(a) During the Term 1, 2 and 3 School holiday period:
(i)For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, for 80 per cent of that school holiday period as agreed between the parties and failing agreement, for the first 14 nights of that 18 night period in Perth;
(b) During the Summer School Holiday period:
(i)For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him:
1. for 80 percent of the school holiday period as agreed between the parties and failing agreement, for the first four and a half weeks of the six week holiday period in Perth; and
2. From 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in even numbered years, and from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years in Perth;
(c) During the Easter Period, defined as 1.00 pm on Holy Thursday to the commencement of school after Easter Monday:
(i)From 1.00 pm on Holy Thursday until before 6.00 pm on Easter Monday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from after school on Holy Thursday until the commencement of school after Easter Monday in Perth.
(d) During the Father's day weekend, defined as 1.00pm on Friday to the commencement of school Monday on that weekend:
(i)From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(e) On a weekend proximate to the child's birthday, defined as 1.00 pm Friday until the commencement of school Monday:
(i)From 1.00 pm Friday until 6.00 pm Sunday in Perth; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(f) On a weekend proximate to the Father's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i)From 1.00pm Friday until 6.00 pm Sunday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(g) On a weekend proximate to C's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i)From 1:00pm Friday until 6.00 pm Sunday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(h) On a weekend proximate to D's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i)From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(i) On a weekend proximate to Ms E's birthday, defined as 1.00 pm Friday until the commencement of school Monday:
(i)From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, are traveling to Perth, from the conclusion of school Friday until the commencement of school Monday in Perth.
(j) For one week in each of Terms 1, 2, 3 and 4 as agreed between the parties and failing agreement the last week of each term, commencing at the conclusion of school Friday in the penultimate week until the following Friday:
(i)in Perth; or
(ii)If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, in Sydney
(k) Such other times as agreed between the parties.
TELEPHONE CONTACT
That the parties are to facilitate telephone calls or communications via Skype between the child and the other party at 7.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care or as such other time as the parties may agree.
That the child is to have telephone calls with the Paternal Grandmother, Ms E, at 7.00 pm (Sydney time) on Mondays in each week.
That the child is to have telephone calls with her siblings, C and D, at 7.00 pm (Sydney time) on Wednesdays in each week.
EXPENSES
That the cost of the child's travel shall be incurred by the parties equally and on an alternate basis with the:
(a) Father responsible for the child's travel to Sydney on the first occasion and each alternate trip thereafter; and
(b) Mother responsible for the child's travel to Sydney on the second occasion and each alternate trip thereafter.
That the parties bear the cost of their own travel.
That the parties shall equally share the cost of the child's school fees.
That the father shall continue to pay for the child's private health insurance until she attains the age of 18 years.
SCHOOLING
That the parties shall do all things necessary and execute all documents necessary so as to cause the child to continue to be enrolled in F School until the completion of primary school.
Prior to the completion of the child's primary school, the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in a mainstream high school.
That for the purposes of Order 13 herein mainstream school is taken to mean a school that is not an alternative school including but not limited to alternative education.
That in the event the parties are unable to agree on what mainstream high school the child shall be enrolled in prior to when typical mainstream high schools are commencing enrolments, or on written request of either party, the mother shall provide a list of three schools to the father and the father shall select which mainstream high school the child shall attend within 28 days of receiving the mother's three nominations.
That in the event the father fails or refuses to nominate the school the child shall be enrolled in pursuant to Order 15 above, the mother is at liberty to nominate the school the child attends and shall be solely responsible for her enrolment.
That the parties shall authorise any school attended by the child to provide each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
MEDICAL
Each party shall notify the other as soon as possible and in any event within four hours of any serious injury or illness suffered by the child whilst in the party’s care.
Each party shall inform the other of the names and addresses of any medical professionals or other health professionals who treat the child whilst in their care within 24 hours of treatment and, on request, authorise them to provide all necessary information to the other party about the health and treatment of the child.
That the parties will ensure that they and the child attend on Ms G as and when directed by Ms G and follow any reasonable request, direction or requirement of Ms G, including attending on appointments and the frequency of such appointments.
Both parties are restrained from administering, or causing to be administered, any mental health medication or mood or mind altering medication to the child without the written consent of the other party or by order of the court.
MISCELLANEOUS
That the parties do all things necessary and execute all documents necessary to comply with the airlines 'unaccompanied minor' policy including but not limited to:
(a) Paying any extra travel fee;
(b) Dropping the child to the departure gate; and
(c) Collecting the child from the arrival gate.
The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
The parties are restrained from administering to themselves any illicit drug at any time.
That upon the child attaining the age of 16 years, the parties shall have regard to the child's wishes as to whether she wishes to live in Sydney with the Father or live in Perth with the Mother.
For the purposes of these Orders, the parties will use their best endeavours to put the child on a flight during school term periods:
(a) By no later than 2.00 pm when departing from Perth, to ensure she arrives at a reasonable hour in Sydney; and
(b) Prior to 6.00 pm when departing from Sydney, should the following day require the child's attendance at school.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Babcock & Waddell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6272 of 2010
| Mr Babcock |
Applicant
And
| Ms Waddell |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
Legal Aid New South Wales
REASONS FOR JUDGMENT
Introduction
This matter concerns competing parenting applications involving the child X born in 2006 (“the child”).
The child currently lives with the mother and, pursuant to interim orders made on 18 January 2011, the child spends five nights per fortnight with the father. In more recent years some of that time includes time that the father spends with his two children from the father’s second relationship. Those two children are C who is five and D who is three.
The mother seeks an order permitting the child to relocate with her to Perth. The mother states that it is her intention to move to Perth irrespective of what orders are made by the Court in these proceedings. The father acknowledges that the mother has a genuine desire to move to Perth but contends that her proposals are unrealistic and are contrary to the child’s best interests.
The father is concerned that the orders sought by the mother would reduce the amount of time that the child is able to spend with not only him but also her siblings and her paternal grandmother with whom the child has a close relationship.
The substance of the opinion expressed by the single expert appointed by the court, Dr H, favours orders being made that would facilitate the child relocating to Perth with the mother. However, the Family Consultant, who has provided a report to the court, believes that such orders would not be in the best interests of the child.
Having considered the totality of the evidence, including the views expressed by the experts, I have decided to make orders permitting the child’s place of residence to be relocated to Perth with the mother. The order has been expressed to take effect as at the commencement of the school year in 2019 at which time the child will commence high school.
Background
The mother was born in 1964 and is currently 53 years of age. The father was born in 1970 and is currently 47 years of age.
In May 1995 the parties commenced residing together in Perth.
In November 1995 the father’s employment project in Perth ceased and the parties moved into the maternal grandparent’s home, in Perth, for a period of approximately two months.
In early1996 the father returned to Sydney to invest in a small business. The mother remained living in Perth where she resided with her mother and stepfather.
In late 1996 the mother ceased her employment and travelled to Sydney to join the father.
The mother accuses the father of perpetrating acts of family violence during the course of the parties’ relationship including a physical assault that occurred immediately before the parties separated. The father acknowledges that between 1995 and 1999 the parties engaged in both verbal and physical altercations.[1]
[1] Affidavit of the father, paragraph 213.
In early 1997 the parties separated for a period of between three and four months before reconciling in mid-1997. After the parties reconciled they moved in with the father’s parents at their home in Suburb J in south-western Sydney. The paternal grandparents still reside in that suburb.
In 1998 the father commenced employment in Perth and remained working there until approximately September 1999. During that period the father resided with the mother’s parents in Perth and the mother travelled to Perth on weekends - usually once a month.
In 1999 the father returned to Sydney to work. That work included managing a business in which he was involved.
The mother asserts that, in about 2000, the father commenced smoking crystal methamphetamine. The father was unable to recall exact dates that he commenced using methamphetamine but acknowledged that, at the worst of his addiction, he used the substance on a daily basis. The mother acknowledges smoking crystal methamphetamine on around six occasions.
In 2006, the child was born.
From June 2006 until February 2007, the mother took maternity leave from her employment in order to care for the child on a full-time basis.
From 2007 until 2010 the paternal grandmother, Ms E, visited the child. She usually arrived at the parties’ home between 11.00 am and 12.00 pm and left between 5.00 pm and 6.00 pm. On occasions the mother would also attend, with the child, at the paternal grandmother’s home.
In the period from February 2007 until May 2007 the mother returned to part-time work at Company K where she initially worked three days per week. During that time, the child attended day care two days per week. The mother was also assisted by a housekeeper/nanny during this period. In mid-May 2007 the mother was made redundant from her employment with Company K and, in the period from May 2007 until July 2010, the mother did not work other than undertaking part-time contracting work for Company L one or two days per week.
It is unnecessary to determine the precise division of caring responsibilities between the parties. I am satisfied that the mother has been the primary carer of the child since the child’s birth. The father has, however, been actively involved in the child’s care and he has made a significant contribution consistent with his employment responsibilities from time to time.
In June 2007 the mother commenced playing netball. The father contends that he cared for the child each Saturday. I accept that to be the case.
In November 2007 the child was enrolled in an early childhood reading class. The father contends that he took the child to and from the reading class and also assisted her with homework. I also accept that to be the case.
In mid 2008 the child’s childcare was changed to Suburb PP.
During 2008 the parties enrolled the child in the N School in Suburb O. The Child was initially placed on the waiting list
In early 2009 the child commenced dancing classes.
In the Period between June 2008 and March 2009 the child continued to attend day care on two days per week. In the period from around 2009 until July 2010 the child participated in Spanish classes each Tuesday evening.
In March or April 2009 the child was enrolled at P School and in October 2009 the child attended the Q School.
In the period from 2009 until July 2010 the mother was usually responsible for collecting the child from day-care on a Friday before taking her to a 3.00 pm swimming class. The mother and child would often remain at the pool for a period of approximately two hours after the swimming classes, in order to socialise with other children and their parents.
In the period between 2009 and July 2010 the mother commenced seeing a counsellor, Ms R.
In March 2009 the parties commenced seeing a relationship counsellor and subsequently attended a total of three sessions together.
In June 2009 the parties travelled to Perth for a visit. The father returned to Sydney shortly after his arrival in Perth however the mother and child remained in Perth for a further six weeks.
The father contends that the last date he used drugs was in April 2010.
In May or June 2010 the parties attended an interview with the child at the F School and on 23 August 2010 the child commenced at the school.
In July 2010 the father commenced working for Company T from its Perth office on a fixed term contract.
On 29 July 2010 the mother travelled to Perth with the child to join the father.
On 7 August 2010, while staying at a hotel, the parties became engaged in an argument that became violent, resulting in the Police being called. The Police issued a 24-hour Temporary Protection Order in favour of the mother.
On 7 August 2010 the parties separated on a final basis. The mother and the child moved in with the mother’s stepfather Mr U to his home in Perth.
On 16 August 2010 the mother attended the Perth Magistrates Court and spoke to a Family Violence Counsellor. On 17 August 2010 an Interim Violence Restraining Order was granted. That order remained in place until 25 October 2010.
On 21 August 2010 the father returned from Perth to Sydney. The mother and child remained in Perth.
On 5 October 2010 the father commenced proceedings in the then Federal Magistrates Court of Australia seeking orders for the mother to return from Perth to Sydney with the child. On 25 October 2010 ex parte orders were made in accordance with the father’s application. The mother contends that she did not appear on that day as result of miscommunication between herself and her legal representatives and the court.
On 25 October 2010 the Violence Restraining Order proceedings in Perth were resolved with an undertaking given by the father in respect to his future conduct. .
On 24 November 2010 the mother filed a Notice of Appeal against the Interim Orders Made on 25 October 2010.
On 28 October 2010 the mother also unsuccessfully applied for a stay of the orders made on 25 October 2010.
On 26 November 2010 the mother discontinued the appeal filed in the Family Court.
On 10 December 2010 the mother filed an Amended Response seeking orders for shared parental responsibility and for the mother to be permitted to relocate the child’s residence to Perth.
On 14 December 2010 the father travelled to Perth with his brother in order to collect the child. The father contends, however, that the mother removed the child from the child’s daycare and the father was unable to retrieve the child in Perth.
On 21 December 2010 the father applied for a recovery order of the child.
On 18 January 2011 Federal Magistrate Scarlett made a recovery order for the mother to return the child to Sydney forthwith.
The father commenced paying the child’s school fees from the commencement of Term 1 in 2011 and continued to pay them until Term 1 in 2015.
In August 2011 the parties were unable to resolve a disagreement about the mother travelling to Perth with the child in order to attend her Aunt’s seventieth birthday.
The mother contends that, in the period between April 2011 and May 2014, at the father’s request, the parties departed from the interim orders made on 18 January 2011 in order for the child to spend six nights per fortnight with the father. The father contends that the period during which the child spent six nights with him was from February 2011 until 9 July 2014. For the purpose of this decision I assume that the father’s recollection of the longer period is correct.
In September 2011 the father moved from rental accommodation and commenced residing with a new partner Ms V. The father and Ms V subsequently had two children however that relationship has now ended.
The mother contends that, in July 2012, following a series of meetings, the parties agreed on revised parenting arrangements that provided for the mother and the child relocating to Perth.
The mother contends that, consequent upon the parties reaching that agreement, the parties filed a notice of discontinuance in respect to all applications pending before the Federal Circuit Court of Australia. The nature of the alleged agreement is not admitted by the father but the father acknowledges that on 2 August 2012 the Family Court proceedings were discontinued by consent.
I make no findings in respect to the alleged agreement and have not regarded that matter as a relevant consideration in these reasons for judgment.
In December 2012, the mother asked the father to take the child for the school holiday period as she was travelling to Perth and thereafter to Europe with her then partner Mr W.
On 21 January 2013, the mother responded to an inquiry from the father advising him that she had no intention of relocating with the child to Europe.
In 2013 C, the father’s child from his relationship with Ms V, was born.
On 26 February 2013 the mother advised that the father that she intended to relocate to Europe with the child.[2]
[2] Affidavit of the father, paragraph 354.
On 6 March 2013 the mother proposed that she relocate with the child to Europe and for arrangements to be made for the child to return to Australia three times per year travelling unaccompanied.[3]
[3] Ibid, paragraph 359.
On 16 March 2013 the father received a text message from the mother in respect to her plan to move to Europe. In the text message the mother stated “I am very happy for the child to be apart from me for six months.”[4]
[4] Ibid, paragraph 370.
In April 2013 the mother travelled to Europe for two weeks. In late September 2013 the mother travelled to Europe for three and a half weeks and on her return advised the father that she no longer wished to relocate to Europe.
In December 2013 the mother’s relationship with Mr W ended after 18 months.
On 22 April 2014 the father recommenced proceedings seeking orders restraining the mother from relocating the child’s residence from Sydney.
In May 2014 the mother attended upon her general practitioner Dr X and was prescribed 100 mg of Sertraline to assist with anxiety and depression.
On 9 July 2014 the mother informed the father that she wanted to revert back to the interim orders of 18 January 2011 rather than continue the informal arrangement consented to by the parties. In the period from 9 July 2014 to date the child has spent five nights per fortnight with the father.
In the period from approximately August 2014 to date the mother has advertised a room in her rental apartment for short-term subleasing through Airbnb.
In 2014 the father’s second child of his relationship with Ms V, D, was born.
In the period from October 2014 to December 2014, the mother sought advice from her general practitioner and a counsellor in relation to behaviours exhibited by the child. This included sensitivity to wearing socks, underpants, shoes and leggings, biting her skin on the fingers and toes and expressing the need to frequently urinate.
On 19 November 2014 the mother sent an email to the father proposing that the child be taken to a psychologist in respect to those behavioural issues.[5]
[5] Affidavit of the mother, paragraph 205.
On either 20 or 23 November 2014 the mother arranged for the child to attend upon a clinical child psychologist Ms G. The father asserts that the mother acted without his consent. I accept that to be the case.
On 24 November 2014 the mother filed an amended response seeking orders that she be permitted to relocate to Perth with the child.
On 26 November 2014 the father, through his solicitors, requested that the mother suspend taking the child for any further appointments with Ms G until the father had the chance to meet with Ms G.
On 15 December 2014 the father advised the mother that he did not provide his consent for the child to attend upon Ms G.
After the first school term in 2015 the father ceased paying the child’s school fees in respect to her attendance at the F School.
In January 2015 the parties engaged in text message communication where the mother sought the father’s approval to travel to Perth for the weekend of 15 January 2015 in order to attend her stepfather’s sixtieth birthday. The father agreed to the request but only to the extent that the mother travelled for a period of 48 hours.
The father asserts that in April 2015 he ceased consuming alcohol.
I do not make any findings in this matter that the father has an ongoing issue with substance abuse.
In July 2015 the mother took stress leave from work due to bullying issues. The mother was subsequently successful in lodging a workers compensation claim in respect to inability to attend to her normal duties and was awarded compensation in respect to the period from July 2015 until February 2016. At that time the mother returned to work on a return to work plan. The mother subsequently commenced working 9 days per fortnight in October 2016.
On 12 June 2015 the father sent the mother an email advising that he intended to communicate with the child’s school to advise that he did not wish the child to continue attending. The mother subsequently made arrangements to pay the child’s school fees.
The father contends that, during the course of a Skype communication with his daughter on 25 August 2015, she advised him that she had attended a Doctor. The father contends that the mother initially failed to advise the father of the nature of the medical appointment.
On 28 September 2015 the father’s legal representatives sent correspondence to the mother’s legal representatives seeking details of the child’s medical appointment that took place on 25 August 2017.
On 29 October 2015 the family report of Ms Y was released to the parties.
On 28 October 2015 the mother’s solicitor advised the father’s solicitors that the child had attended a doctor in order to undertake an eye test and also an assessment for whether she suffered from Attention Deficit Hyperactivity Disorder (ADHD).
On 11 November 2015 the matter was transferred to the Family Court of Australia.
In about July 2015 the father separated from Ms V[6]. By agreement reached with Ms V, in August 2016, the father spends approximately six nights per fortnight with his son C and five nights per fortnight with the daughter D. That arrangement continues.
[6] Affidavit of the father, paragraph 9.
On 22 August 2016 the mother took the child for an appointment with Dr Z in order to undertake an assessment for possible Obsessive Compulsive Disorder (OCD).
On 9 September 2016 the mother served the father with an affidavit annexing a letter from Dr Z confirming the diagnosis of OCD. On 12 September 2016 the father attended upon Dr Z in order to understand the basis of the Doctor’s diagnosis.
On 13 September 2016 interim orders were made which included a requirement for the father to submit to urinalysis testing. Subsequent tests have been negative.
In late 2016 the father was advised by Ms G that the parties’ parenting dispute was likely to have been a significant contributor to the re-emergence of the child’s OCD and that she may be at risk of self-harm.[7]
[7] Affidavit of the father, paragraph 309.
On 1 December 2016, following a dispute between the parties, orders were made, by consent, to permit the child to travel to Perth with her mother, during the period 9 December 2015 until 2 January 2015, for the purpose of a holiday.
On 7 April 2017 the Independent Children’s Lawyer (“ICL”) notified the parties that the child would like to spend more time with the father.
From 7 April 2017 until 9 April 2017 the father took the child on holiday to Queensland.
On 4 June 2017 the mother texted the father advising that she had organised for the child to be assessed for ADHD. The father refused to provide his consent for that to occur.
parenting arrangements prior to final hearing
Federal Magistrate Scarlett, as he then was, made interim parenting orders in this matter on 18 January 2011. Those orders provided, inter alia, for the child to live with the mother and spend time with the father each alternate weekend from Friday afternoon to Monday morning in week one, each alternate Wednesday afternoon to Friday morning in week two, half of the Autumn, Winter and Spring holiday periods and two weeks during the Christmas summer holiday period.
Those orders also provided for the parties to have equal shared parental responsibility, for the mother to be restrained from relocating the residence of the child from Sydney, and for the parties to facilitate the child communicating with the other party via Skype three times per week while the child was in their respective care.
In February 2011 the parties reached an agreement for the child to spend an additional night beyond those as provided for in the orders of 18 January 2011 with the father. On 9 July 2014 the mother withdrew her consent for that to occur. Accordingly, as at the date of the hearing, the parenting arrangements were in accordance with the orders made by Federal Magistrate Scarlett on 18 January 2011.
interim orders made at conclusion of final hearing
On the final day of the hearing, 27 October 2017, orders were made which included following interim orders agreed to by the parties:
2. That X born … 2006 ('the child') shall spend time with the Applicant Father:
a. from 5:00pm on Tuesday 12 December 2017 until 9:00am on 27 December 2017;
b. from 5:00pm on 18 January 2018 until 5:00pm 28 January 2018
3. That the child shall time with the Respondent Mother:
a. For two hours on Christmas day from 2:00 p.m. to 4:00pm, or as otherwise agreed between the parties;
b. From 9:00am on Wednesday 27 December 2017 until 5:00pm on Thursday 18 January 2018;
c. From 5:00pm 28 January 2018 until the commencement of school on Wednesday 31 January 2018;
4. That the child be permitted to travel to Perth during the time she spends with the Respondent Mother over the Christmas holiday period.
Competing applications
The father’s application
The father sought orders in terms of a document titled Amended Minute of Final Orders tendered to the Court on 27 October 2017 (Exhibit H7). The proposed orders sought by the father are set out in Attachment A.
Most significantly, for the purpose of these proceedings, the father sought an order that the mother shall be restrained from relocating the child's residence from Sydney.
The mother’s application
The mother sought parenting orders as set out in her case outline document provided to the Court on 4 September 2017 (exhibit W1). Those proposed orders are set out in Attachment B.
Most significantly, for the purpose of these proceedings, the mother sought an order that she be permitted to relocate the child to live with her in Perth at the beginning of 2019.
The Independent Children’s Lawyer’s proposed orders
The ICL sought orders as set out in the case outline document provided to the Court on 27 October 2017 (Exhibit ICL6). Those proposed orders are set out in Attachment C.
Again, most significantly, for the purpose of these proceedings, the ICL sought an order that the parties be restrained from relocating the child from Sydney without the written consent of the other party.
Evidence and witnesses
The father relied upon the following documents:
a)Case outline received 30 August 2017;
b)Amended Minute of Final Orders sought received 26 October 2017;
c)Further Amended Initiating Application filed 4 July 2017;
d)Affidavit of the father filed 23 August 2017;
e)Affidavit of Ms E (the paternal grandmother) filed 21 August 2017.
The mother relied upon the following documents:
a)Case outline provided to the Court on 4 September 2017;
b)Amended Response to Initiating Application filed 18 March 2016;
c)Affidavit of the mother filed 31 August 2017;
d)Affidavit of Mr AA Waddell filed 30 August 2017;
e)Affidavit of Mr U filed 28 August 2017;
f)Affidavit of Ms BB filed 25 August 2017;
g)Affidavit of Ms CC filed 29 August 2017;
h)Affidavit of Ms DD filed 28 August 2017; and
i)Affidavit of Ms EE filed 27 August 2017.
The ICL relied upon:
a)The single expert report of Dr H dated 22 August 2017;
b)The Family Report of Y dated 26 October 2015; and
c)The ICL tender bundle provided to the Court (Exhibit ICL2).
The Law - Concepts and Principles
Parenting proceedings involving relocation
Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children. In Zahawi & Rayne,[8] the Full Court noted:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[8] [2016] FamCAFC 90, [47] – [48]; citing U v U (2002) 211 CLR 238 [92].
In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[9]
[9]AMS v AIF (1999) 199 CLR 160, 191.
In that context, in Adamson & Adamson (2014) FLC 93-62 at 79,700 [65] – [66] the Full Court said:
It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
(Emphasis in original)
In U v U (2002) 211 CLR 238 (“U v U”) at 278 [44], Kirby J said that to require the party seeking to relocate to show “compelling” reasons “stacks the cards unfairly against the custodial/residence parent.” [10]
[10] Noting that Kirby J was in the minority, but the statement was adopted by the Full Court in Jurchenko & Foster (2014) FLC 93-598 at 79,415 [100].
More generally, parenting proceedings are to be determined in accordance with Part VII of the Act. Section 60CA of the Act makes the best interests of the child the paramount consideration in this matter. In Walker & Walker,[11] Thackray CJ said at paragraph 81:
In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[11][2013] FCWA 85.
Those objects referred to by Thackray CJ are set out in section 60B of the Act. Of further relevance are the principles set out in section 60B(2) which relevantly include:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Other sections of the Act which are of relevance include:
·Section 60CA, which provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration.
·Section 64B(2), which provides that a parenting order may include orders about the person or persons with whom a child is to live, the time a child is to spend with another person, the allocation of parental responsibility for a child and the communication a child is to have with another person or persons.
·Section 61DA(1), which provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for him or her. The presumption however may be rebutted if:
·there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of a child), has engaged in abuse (61DA(2)(a)) or family violence (61DA (2)(b)); or
·evidence is presented which satisfies the Court that it would not be in the best interests of the child for the presumption to be applied (61DA(3)).
·Section 60CC(2), which sets out the primary considerations in determining what is in the child’s best interests. Those primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents (60CC(2)(a)); and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (60CC(2)(b)).
·Section 60CC(2A) directs the Court to give greater weight to the consideration set out in section 60CC(2)(b).
·Section 60CC(3), which sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed in greater detail below. They can conveniently be grouped under the following topics:
i.Issues relating to the children – their views, level of maturity, culture and relationships.
ii.Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility.
iii.Issues of family violence.
iv.Effect of change.
v.Practical difficulty of implementation of orders.
vi.Avoiding further proceedings.
vii.Other relevant matters.
·Section 65DAA(1), which requires the Court to consider whether the child spending “equal time” with each of the parents is in their best interests and is reasonably practicable.
·Section 65DAA(2), which provides that, if the Court does not make an order for the child to spend “equal time” with each of the parents, the Court is required to consider whether the child spending “substantial and significant time” with each of the parents is in the child’s best interests and is reasonably practicable.
·Section 65DAA(3), which defines “substantial and significant time” as including days that fall on weekends and holidays, days that do not fall on weekends or holidays, time that allows the parent to be involved in the child’s daily routine and occasions special to the child and/or the parent. It should be noted that “equal time” is not defined.
·Section 65DAA(5), which provides that the determination of reasonable practicality is “not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant”.[12]
[12]Cowley & Mendoza (2010) 43 Fam LR 436, 441 [24].
By their very nature, cases where there is a proposed relocation of a child’s residence away from one parent raises challenges in respect to the time the child is then able to spend with that non-resident parent. Accordingly, when, as in this case, the presumption of equal shared parental responsibility is to be applied, the concept of reasonable practicability as set out in section 65DAA(5) then becomes a significant consideration.
Best interests and reasonable practicability
In MRR v GR (2010) 240 CLR 461, the High Court considered the interrelationship between sections 61DA and 65DAA in the context of the Court’s obligation to regard the child’s best interests as the paramount consideration pursuant to section 60CA of the Act. The High Court held that:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides, in that respect, that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[13]
[13] At 465 [9].
The High Court then stated:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.[14]
[14] At 466 [13].
Further, in that case it was held that;:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable[15].
(emphasis added)
[15] At 467 [15].
In summary, in addition to considering whether it is in the best interests of the child to spend equal time with each parent, a finding of reasonable practicability is a precondition to making a parenting order for a child to spend equal time with each parent. This means that, before such an order can be made, there must be a finding that such an arrangement is reasonably practicable having regard to the circumstances of the parties. If the Court cannot make such a finding, then the Court must repeat the exercise in relation to the child spending substantial and significant time with a parent.
Paramountcy principle and rights and interests of the parties
The best interests of the child are the paramount consideration in this matter but it is not the sole consideration. The Court also needs to take into consideration the circumstances of the parties. In undertaking that exercise I must also to take into account the right of the parties to choose where they would like to live.
The failure to do so may constitute a serious injustice. This is particularly so for the parent with whom the child spends the greatest amount of time and for the parent with whom the child has the closest bond. In this case that is the mother. If the mother does not want to move away from the child she will be compelled, against her wishes, to continue to reside in Sydney. The father contended that, irrespective of the mother’s stated intention to relocate without the child if she fails with her application, as a result of the closeness of the mother and child relationship, the court should infer that she will not relocate without the child. In that context in U v U[16] at 278 [142] Kirby J observed:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court[17] and courts in other jurisdictions,[18] significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
[16] (2002) 211 CLR 238; [2002] HCA 36 at 278 [142].
[17] AMS v AIF (1999) 199 CLR 160 at 208 [145].
[18] Poel v Poel [1970] 1 WLR 1469 at 1473 per Winn LJ; sub nom P v P [1970] 3 All ER 659 at 662; Burns v Burns (2000) 182 NSR (2d) 101 at 113 [36] citing Wall v Wall (1997) 163 NSR (2d) 81.
In terms of the potential impact on the child, in AMS v AIF[19] Kirby J further observed at paragraph 145:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves,[20] to control their own future destinies[21] and, where desired, to form new relationships[22], free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.[23] This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[24]
[19](1999) 199 CLR 160; [1999] HCA 26.
[20] In the Marriage of Cullen (1981) FLC 91-113 at 76,848.
[21] In the Marriage of Craven (1976) FLC 90-049; Poel v Poel [1970] 1 WLR 1469; P v P [1970] 3 All ER 659.
[22]In the Marriage of I and I (1995) FLC 92-604 at 82,025.
[23] Poel v Poel [1970] 1 WLR 1469, 1473; P v P [1970] 3 All ER 659, 662.
[24] In the Marriage of Holmes (1988) FLC 91-918 at 76,664; B and B [1997] FLC 92-755 at 84,197. Most earlier authority was addressed to the correct question,see Re Davis & Councillor (1981) 7 Fam LR 619; Thorpe v McCosker (1983) 8 Fam LR 964.
The Full Court in Bolitho & Cohen[25] confirmed that the proper approach to be adopted in relocation cases, as held by the High Court in U v U,[26] is one involving the:
…weighing of competing proposals, having regard to relevant [s60CC(3)] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[25] (2005) FLC 93-239, 79,699 [72].
[26] (2002) 211 CLR 238; [2002] HCA 36.
In summary, the authorities confirm that cases involving an application for a child to permanently relocate to another city should not be classified as a discrete type of parenting case. The focus, or as Kirby J described, the “touchstone” throughout the proceedings must be on the best interests of the child. However, the circumstances of the parties including their right of freedom of movement are a relevant consideration. Moreover, the authorities recognise that, whether or not a parent is permitted to relocate in accordance with their wish, may have a significant impact on the parties’ future relationship as well as their individual happiness and sense of well-being. These matters may, in turn, impact upon the best interests of the child.
Approach
In Sayer & Radcliffe and Anor,[27] the Full Court said:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider thecompeting proposalsof both parents: see Palmer (No 2) at [76]; Morgan at [80] – [81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[27] (2012) 48 Fam LR 298 [48].
However, the Court is not bound by those proposals in determining what is in the child’s best interests.[28]
[28]U v U at 260 [80].
In terms of approach, in Malcolm & Monroe and Anor[29] the Full Court said:
We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
(emphasis added)
[29] (2011) FLC 93-460, 85,515.
In Re: TC and JC (Children: Relocation),[30] Mostyn J suggested that undertaking that task might be assisted by asking the following questions:
a)Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?
b)Is the application realistically founded on practical proposals both well researched and investigated?
c)What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?
d)Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
e)What would be the extent of the detriment to him and his future relationship with the child were the application granted?
f)To what extent would that detriment be offset by the extension of the child's relationships with the applicant family and homeland?
[30] [2013] EWHC 292, [11].
The parties competing proposals
The determination of this matter therefore requires careful consideration of the parties competing proposals. In that respect in U v U at 248-9 Gaudron J said;
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF[31]. …
The trial judge’s failure to separately evaluate the three proposals and, hence, to properly determine what was in N’s best interests was almost certainly the result of his Honour’s erroneous understanding of the counsellor’s statement that “[i]deally, [N’s] best interests would be served by her having frequent and liberal contact with both parents”. Clearly, his Honour understood the statement to mean that such contact was more important than any other consideration. It may be that a finding that frequent contact with both parents was more important than any other matter could properly have been made by the trial judge but, if so, it could only be made by separately evaluating each of the proposals.
[31] (1999) 199 CLR 160 at 191 [95] per Gaudron J, 226 [196] per Kirby J, 232 [218]-[219] per Hayne J.
While Gaudron J was in the minority in terms of the outcome in U v U, significantly, in Jurchenko & Foster[32] (“Jurchenko”) at 79,421 [127] the Full Court commented that Her Honour’s observations were “not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to ‘relocate’”.
[32] (2014) FLC 93-598
In this matter the mother has indicated that she intends to relocate to Perth irrespective of whether or not the court permits the child to relocate with her. The observations of Gaudron J are nonetheless pertinent although, to some extent, in this case, the task is more focused in so far as the mother’s proposal is not expressed in the alternative as was the situation in U v U.
I will subsequently provide a detailed explanation of my consideration of the parties’ proposals in the context of my obligation to focus upon the best interests of the child and in particular the considerations set out in section 60CC of the Act. The parties’ proposals are also relevant in considering whether it is reasonably practicable for an order to be made that the child spends equal or substantial and significant time with both parents.
The totality of the parties proposals are set out in the three Attachments to this judgment. At this point it is sufficient to outline the parties’ proposals with particular focus upon the issue of relocation.
The mother’s proposal
The details of the mother’s proposal are set out in Attachment B and are explained in paragraphs 28 through to 41 of her affidavit dated 31 August 2017. Broadly, the mother’s proposal is as follows;
·That the parties have equal shared parental responsibility.
·That the mother be permitted to relocate the child to Perth at the beginning of 2019.
·That prior to the end of 2018 the child spend effectively equal time with both parents together with an equal split of school and public holidays.
·that from 2019 onward:
oThe child live with the mother in Perth.
oThe child is to spend half of school holidays and the whole of the July holiday with the father.
oThe child is to spend one week per school term in Sydney undertaking supervised study during Terms 1, 2 and 3.
oThe mother will bear the costs of transport between Sydney and Perth.
In terms of education the mother proposed;
·that the child be enrolled at the F School until the end of 2018 and thereafter, for high school the child be enrolled in a school in Perth being
oCC School until 2021.
oDD School from 2022 onward, subject to a successful application; or
oAnother appropriate school located in Perth.
·The child is to spend one week per term in Sydney in Terms 1, 2 and 3, undertaking supervised home study or with the permission of a school in Sydney.
In terms of medical issues the mother proposed that
·The parties notify each other of any serious condition or injury within four hours.
·Parties inform each other of any medical practitioner who is being consulted.
·The parties authorise the other party to receive information on any medical treatment being provided to the child.
The mother also proposed that formal orders are made to facilitate Skype communication and telephone calls between the child and the father.
The mother proposed that, in the event of the court declining to make an order permitting the child to relocate to Perth with the mother, the reverse of what she has proposed in respect to the child living in Perth would apply. That is, the child would live in Sydney and spend time with the mother in Perth on an equivalent basis to what the mother proposed the child would spend with the father in Sydney if the child had moved to Perth.
The mother did not propose any orders in respect to the possibility of her remaining in Sydney beyond the commencement of 2019.
The father’s proposal
The father also supports the parents having equal shared parental responsibility. He opposes the child’s relocation to Perth. His primary application is based on an assumption that the mother will not travel to Perth without the child. In that event the father proposes;
·the child is to spend seven nights per fortnight living with the father and seven days living with the mother. Consistent with that position the father effectively proposes an equal split of school and public holidays.
·that changeovers occur at the child’s school or, on non-school days at the parent’s home with whom the child has been staying.
·the child spend some time with each parent on Christmas Day and, also, their birthdays. The orders also propose for the child to spend some time with the other parent on that parent’s birthday and, in the case of the father, Father’s Day and in the case of the mother, Mother’s Day.
·the child spend some time with her half siblings on their respective birthdays.
In terms of education the father proposes;
·the child continue to be enrolled at F School until the end of 2018. Thereafter the father proposes that the child be enrolled in a “mainstream” high school, specifically excluding other forms of education from the F School concept.
·the father proposes nominating three schools from which the mother is to choose one and in the event of the mother failing to choose one, that the father shall have sole responsibility in selecting the school .
In terms of medical treatment the father proposes;
·each party be obliged to notify the other of any serious condition or injury within four hours.
·the parties are to inform each other of any medical practitioner who is being consulted and the child is to continue to obtain counselling from Ms G in respect to her condition of OCD.
·That both parties be restrained from administering mood, mental health, or mind altering medication unless by consent or order of the court.
·That the father pay for the child’s health insurance until she turns 18.
In terms of miscellaneous matters the father proposes that irrespective of orders determining where the child should live that orders should be made to provide for;
·The parties sharing the cost of the child’s travel.
·The parties sharing the cost of the child’s school fees.
·the father continuing to pay for the child’s private health insurance until she reaches 18 years of age.
·The facilitation of the child’s communication with the other parent.
·enrolling the child in a mainstream high school with a mechanism for that to be determined in the absence of the parties being unable to agree.
·The provision of information concerning the child’s education and medical treatment.
·The continuation of the child’s counselling with Ms G in respect to the child’s condition of OCD.
·A restraint on either party having the child assessed in respect to ADHD.
·A restraint on the parties using illicit substances.
The father proposed that, in the event of the mother relocating to Perth without the child, that the child live with him and spend time with the mother in accordance with an agreement reached between them and in the absence of agreement for the child to spend half of each school holiday with each parent in the city in which the parent resides.
The orders proposed by the father also provide for the mother to have additional time with the child upon the proviso that the mother gives 28 days’ notice of intended travel to Sydney. In which case it is proposed;
·During the Term 1, 2 and 3 school holiday periods that the mother spend 80 per cent of that holiday with the child as agreed or, in the absence of agreement for the first 14 nights of the 18 night period.
·During the summer school holiday that the mother spend 80 per cent of that holiday with the child as agreed or in the absence of agreement for the first four and a half weeks of the six week period.
The father’s proposed orders also provided for the mother to spend time with the child in either Perth or Sydney on the following occasions;
·the Easter period
·the mother’s day weekend
·on a weekend proximate to the mother’s birthday
·on a weekend proximate to the child’s birthday in either Perth or Sydney
·on the Mother’s Day weekend in either Perth or Sydney
The father further proposed that the child spend an additional week with the mother in each of Terms 1, 2, 3 and 4 as agreed between the parties in either Perth or Sydney and, in the absence of agreement, during the last week of term.
The father proposed quite detailed arrangements in respect to the facilitation of the child’s travel to and from Perth and, further, that the parties share the cost of the child’s flights to and from Perth.
In the event of orders being made permitting the child to relocate to Perth with the mother the father proposed orders, in respect to the child spending time with the parties, that are the reverse to those which I have described above.
Orders proposed by the Independent Children’s Lawyer
The ICL also proposed that the parents have equal shared parental responsibility. The ICL opposed the orders sought by the mother and proposed that the parties be restrained from relocating the child from Sydney without the written consent of the other party.
In terms of the spend time arrangements if the mother remains in Sydney, the ICL proposed;
·the child is to spend seven nights per fortnight living with the father and seven nights a fortnight living with the mother.
·that there be an effective split of the time the child spends with each parent during school holidays and public holidays.
In the event of the mother relocating to Perth the ICL proposed;
·the child live with the father.
·the child is to spend half of the school holidays in Perth.
·the child is to spend Easter, Mother’s Day and her birthday weekend with the mother.
·that there should be an equal split of travel costs.
In terms of education the ICL proposed;
·The child be enrolled at F School until the end of 2018.
·The child be enrolled in a mainstream high school, specifically excluding other forms of alternate education.
·The father is to nominate three schools from which the mother is to choose one, if the mother fails to choose the father shall have sole responsibility.
In terms of medical treatment the ICL proposed;
·The parties notify each other of any serious condition or injury within four hours.
·The parties inform each other of any medical practitioner is being used.
·The child is to continue to attend Ms G for therapy in respect to her OCD.
·The parties are restrained from seeking to have the child assessed for ADHD for a period of six months.
·The parties are to seek advice from Ms G as to whether the child needs to be assessed for ADHD.
In terms of miscellaneous matters the ICL proposed;
·The parties are each to notify the other of a change of address within seven days.
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Sub-sections 65DAC(2) and (3) provide that, in the event of an order being made for the parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child;
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Both parties acknowledge that, during the course of their relationship there were incidents of family violence. A significant incident of family violence occurred on 7 August 2010. Following that incident, which is described in greater detail below, the mother decided to separate from the father.
It is also relevant that the parties have been engaged in legal proceedings that have spanned seven years. During that period there have been significant issues of dispute between the parties including in respect of the child’s education, health and travel. I will also refer to evidence indicating poor communication between the parties.
Nevertheless, each of the parties and the ICL contend that an order for equal shared parental responsibility should be made. Despite some reservation, in circumstances where it was not contended otherwise, I have found that the presumption set out in section 61DA(1) has not been displaced..
As an order for equal shared parental responsibility will be made, the pathway set out in section 65DAA of the Act applies and the Court is obliged to consider equal time or substantial and significant time.
Accordingly, I intend to apply the approach suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115 at [38] by:
1.Considering the relevant section 60CC factors;
2.Based on findings made in relation to the section 60CC factors, then consider whether equal time or substantial and significant time is in the children’s best interests; and
3.Considering whether such arrangements are reasonably practicable by addressing those matters referred to in section 65DAA(5).
This will include considering the parties proposals for relocation in greater detail.
Applying Section 60CC Considerations
Primary considerations
Meaningful relationship
As noted by Brown J in Mazorski v Albright (2008) 37 FamLR 518 (“Mazorski v Albright”) at 526 and endorsed by the Full Court in Blinko and Blinko,[33] “the word ‘meaningful’ [as used in section 60CC(2)(a)] is a qualitative adjective, not a strictly quantitative one”.
[33] [2015] FamCAFC 146, [29]
In Sigley & Evor (2011) 44 Fam LR 439, the Full Court provided guidance in considering the concept of a “meaningful relationship”. Relevantly, for the purpose of these proceedings, the Full Court cited Brown J in Mazorski v Albright that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”[34] The Full Court further noted the statement of Kay J in Godfrey & Sanders [2007] FamCA 102 that the Act “aspires to promote… a meaningful relationship, not an optimal relationship”.[35]
[34] Sigley & Evor (2011) 44 Fam LR 439 at [132] citing Mazorski & Albright (2007) 37 Fam LR 518, [26].
[35] Ibid at [135] citing Godfrey & Sanders [2007] FamCA 102 [36].
In this matter, both parties acknowledged that it is in the child’s best interests to have a meaningful relationship with both parents in terms of section 60CC(2)(a). I accept that to be the case.
The primary basis upon which the father opposes the mother’s application for orders permitting the child to relocate to Perth with the mother is that it would adversely impact upon the child having a meaningful relationship with him.
In Jurchenko at 79,420 [125] the Full Court criticised the approach taken by the trial judge, in that case, because the trial judge had approached the matter:
… with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s refusal to consider moving to Town D was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in [City K]…
The Full Court stated that, as result of that error:
… [His Honour] was diverted to determination of the location in which the child could maintain a “meaningful relationship” with both parents, rather than determining which of the proposals was better for the child.[36]
[36] Jurchenko at 79,418 [112].
As I will explain, while the character of the child’s relationship with the father will change if the child moves to Perth, I am nonetheless satisfied that the child can maintain a meaningful relationship with both parents if that occurs.
Unacceptable risk
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
For reasons which I will discuss, this is not a case where the court is concerned that the child would face an unacceptable risk, in terms of 60CC(2)(b), in respect to any of the proposals by the parties or the ICL.
In that respect both parties make allegations against the other in respect to substance abuse. The father alleges that the mother has a propensity to abuse alcohol and the mother alleges that, having regard to a pattern of cash withdrawals, the court should infer that the father continues to use illicit substances.
The mother acknowledges that she has adopted strategies to minimise her consumption of alcohol including placing ice in a glass of wine to dilute the percentage content of alcohol. Dr H seriously questions the validity of such a strategy and cautions that over indulgence in alcohol is something that the mother will have to guard against.
The mother tendered bank records of the father indicating that he regularly withdraws several hundred dollars of cash from his bank account. The mother contended that some of those withdrawals resemble a similar pattern of withdrawal that occurred during the period from 2004 until 2010 when the father acknowledged he had a problem with substance abuse.
On the other hand the father contends that the cash withdrawals have been made to obtain funds to meet his daily living expenses.
An inference cannot properly be drawn unless there are “positive proved facts from which [it] can be made” [37]
[37] Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152, 169–170; see also Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [80]–[91] per Spigelman CJ; and Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775; [2013] FCAFC 26 at [88].
In the absence of evidence establishing that the father has purchased illicit substances and in the context where the father has tested negative to several court ordered drug tests I am unable to infer, merely as a result of the father’s pattern of cash withdrawals that he has a problem with substance abuse.
In the circumstances I do not conclude that the child is at physical or emotional risk as a result of either parent having an issue with substance or alcohol abuse.
During the course of these proceedings both parents presented as having periods of emotional fragility with there being several occasions where both parents were reduced to tears. In that respect I note that a trial judge is entitled to take account of observations of a witness, or party, in the courtroom including whilst not giving evidence.[38]
[38] Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, 323 (Clarke JA, Hope AJA agreeing)
However, as the Court of Appeal stated in Chaina v Alvaro Homes Pty Ltd:[39]
That exercise must be approached with caution, whether the [witness] is in the witness box or not. Reasons for caution include the possibility that a condition may fluctuate; that a person unfamiliar with a courtroom environment may react differently in the courtroom and outside it, and that the judge does not have medical expertise.
[39][2008] NSWCA 353 [31].
24. That the father and the mother shall have equal shared parental responsibility for X born … 2006 ('the child').
LIVE-WITH/SPEND-TIME WITH
25. That the child shall live with the father.
26. That the mother shall be restrained from relocating the child's residence from Sydney.
27. That the child shall spend time with the mother as follows:
a. During the Term 1, 2 and 3 School holiday period:
i. For half of the school holiday period in Perth as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, for 80 per cent of that school holiday period as agreed between the parties and failing agreement, for the first 14 nights of that 18 night period in Sydney;
b. During the Summer School Holiday period:
i. For half of the school holiday period in Perth as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her:
1. for 80 per cent of the school holiday period as agreed between the parties and failing agreement, for the first four and a half weeks of the six week holiday period in Sydney; and
2. From 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in even numbered years, and from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years in Sydney;
c. During the Easter Period, defined as the conclusion of school on Holy Thursday to the commencement of school after Easter Monday:
i. From after school Holy Thursday until 1:00pm Easter Monday in Perth; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, from after school on Holy Thursday until the commencement of school after Easter Monday.
d. During the Mother's day weekend, defined as the conclusion of school Friday to the commencement of school Monday on that weekend:
i. From the conclusion of school Friday until 1:00pm Sunday in Perth; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, from the conclusion of school Friday until the commencement of school Monday in Sydney.
e. On a weekend proximate to the child's birthday, defined as the conclusion of school Friday until the commencement of school Monday:
i. From the conclusion of school Friday until 1:00pm Sunday in Perth; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, from the conclusion of school Friday until the commencement of school Monday in Sydney.
f. On a weekend proximate to the Mother's birthday, defined as the conclusion of school Friday until the commencement of school Monday:
i. From the conclusion of school Friday until 1:00pm Sunday; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, from the conclusion of school Friday until the commencement of school Monday in Sydney.
g. For one (1) week in each of Terms 1, 2,3 and 4 as agreed between the parties and failing agreement the last week of each term, commencing at the conclusion of school Friday in the penultimate week until the following Friday:
i. in Perth; or
ii. If the mother gives the father 28 days' notice of her intention to travel to Sydney for the child to spend time with her, in Sydney,
h. Such other times as agreed between the parties.
28. That the parties are to facilitate telephone calls or communications via Skype between the child and the other party at 7.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care or as such other time as the parties may agree.
EXPENSES
29. That the cost of the child's travel shall be incurred by the parties equally and on an alternate basis with the:
a. Father responsible for the child's travel to Perth on the first occasion and each alternate trip thereafter; and
b. Mother responsible for the child's travel to Perth on the second occasion and each alternate trip thereafter.
30. That the parties bear the cost of their own travel.
31. That the parties shall equally share the cost of the child's school fees.
32. That the father shall continue to pay for the child's private health insurance until she attains the age of 18 years.
SCHOOLING
33. That the parties shall do all things necessary and execute all documents necessary so as to cause the child to continue to be enrolled in F School until the completion of primary school.
34. Prior to the completion of the child's primary school, the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in a mainstream high school.
35. That for the purposes of Order 34 herein Mainstream school is taken to mean a school that is not an alternative school including but not limited to TT Schools or other alternative education.
36. That in the event the parties are unable to agree on what mainstream high school the child shall be enrolled in prior to when typical mainstream high schools are commencing enrolments, or on written request of either party, the father shall provide a list of 3 schools to the mother and the mother shall select which mainstream high school the child shall attend within 28 days of receiving the father's 3 nominations.
37. That in the event the mother fails or refuses to nominate the school the child shall be enrolled in pursuant to Order 36 above, the father is at liberty to nominate the school the child attends and shall be solely responsible for her enrolment.
38. That the parties shall authorise any school attended by the child to provide each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
MEDICAL
39. Each party shall notify the other as soon as possible and in any event within (4) hours of any serious injury or illness suffered by the child whilst in the party’s care.
40. Each party shall inform the other of the names and addresses of any medical professionals or other health professionals who treat the child whilst in their care within 24 hours of treatment and, on request, authorise them to provide all necessary information to the other party about the health and treatment of the child.
41. That the parties will ensure that they and the child attend on Ms G as and when directed by Ms G and follow any reasonable request, direction or requirement of Ms G, including attending on appointments and the frequency of such appointments.
42. Both parties are restrained from administering, or causing to be administered, any mental health medication or mood or mind altering medication to the child without the written consent of the other party or by order of the court.
MISCELLANEOUS
43. That the parties do all things necessary and execute all documents necessary to comply with the airlines 'unaccompanied minor' policy including but not limited to:
a. Paying any extra travel fee;
b. Dropping the child to the departure gate; and
c. Collecting the child from the arrival gate.
44. The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
45. The parties are restrained from administering to themselves any illicit drug at any time.
46. The father is to undertake hair follicle testing for the presence of illicit drugs during the months of January, April, July and October until the child attains the age of 18 years and shall provide the results of such testing to the mother within seven (7) days of receiving such results.
Notations:
1. That upon the child attaining the age of 16 years, the parties shall have regard to the child's wishes as to whether she wishes to live in Sydney with the Father or live in Perth with the Mother.
2. For the purposes of these Orders, the parties will use their best endeavours to put the child on a flight during school term periods:
a. prior to 6pm for a Sydney departure; and
b. prior to 1pm for a Perth Departure, should the following day require the child's attendance at school.
OR IN THE ALTERNATIVE AND IN THE EVENT THE MOTHER IS RESIDING IN PERTH AND THIS HONOURABLE COURT ORDERS THE CHILD TO LIVE IN PERTH, THE FOLLOWING ORDERS SHALL APPLY:
47. That the father and the mother shall have equal shared parental responsibility for X born … 2006 ('the child').
LIVE-WITH / SPEND TIME-WITH
48. That the child shall live with the Mother.
49. That the child shall spend time with the Father as follows:
a. During the Term 1, 2 and 3 School holiday period:
i. For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, for 80 per cent of that school holiday period as agreed between the parties and failing agreement, for the first 14 nights of that 18 night period in Perth;
b. During the Summer School Holiday period:
i. For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him:
1. for 80 per cent of the school holiday period as agreed between the parties and failing agreement, for the first four and a half weeks of the six week holiday period in Perth; and
2. From 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in even numbered years, and from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years in Perth;
c. During the Easter Period, defined as 1:00pm on Holy Thursday to the commencement of school after Easter Monday:
i. From 1:00pm on Holy Thursday until before 6:00pm on Easter Monday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from after school on Holy Thursday until the commencement of school after Easter Monday in Perth.
d. During the Father's day weekend, defined as 1:00pm on Friday to the commencement of school Monday on that weekend:
i. From 1:00pm Friday until 6:00pm Sunday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
e. On a weekend proximate to the child's birthday, defined as 1:00pm Friday until the commencement of school Monday:
i. From 1:00pm Friday until 6:00pm Sunday in Perth; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
f. On a weekend proximate to the Father's birthday, defined as 1:00pm Friday until the commencement of school Monday:
i. From 1:00pm Friday until 6:00pm Sunday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
g. On a weekend proximate to C's birthday, defined as 1:00pm Friday until the commencement of school Monday:
i. From 1:00pm Friday until 6:00pm Sunday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
h. On a weekend proximate to D's birthday, defined as 1:00pm Friday until the commencement of school Monday:
i. From 1:00pm Friday until 6:00pm Sunday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
i. On a weekend proximate to E's birthday, defined as 1:00pm Friday until the commencement of school Monday:
i. From 1:00pm Friday until 6:00pm Sunday in Sydney; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, are traveling to Perth, from the conclusion of school Friday until the commencement of school Monday in Perth.
j. For one (1) week in each of Terms 1, 2,3 and 4 as agreed between the parties and failing agreement the last week of each term, commencing at the conclusion of school Friday in the penultimate week until the following Friday:
i. in Perth; or
ii. If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, in Sydney
k. Such other times as agreed between the parties.
TELEPHONE CONTACT
50. That the parties are to facilitate telephone calls or communications via Skype between the child and the other party at 7.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in the respective care or as such other time as the parties may agree.
51. That the child is to have telephone calls with the Paternal Grandmother, Ms E, at 7:00pm (Sydney time) on Mondays in each week.
52. That the child is to have telephone calls with her siblings, C and D, on Wednesdays at 7:00pm (Sydney time) on Wednesdays in each week.
EXPENSES
53. That the cost of the child's travel shall be incurred by the parties equally and on an alternate basis with the:
a. Father responsible for the child's travel to Sydney on the first occasion and each alternate trip thereafter; and
b. Mother responsible for the child's travel to Sydney on the second occasion and each alternate trip thereafter.
54. That the parties bear the cost of their own travel.
55. That the parties shall equally share the cost of the child's school fees.
56. That the father shall continue to pay for the child's private health insurance until she attains the age of 18 years.
SCHOOLING
57. That the parties shall do all things necessary and execute all documents necessary so as to cause the child to continue to be enrolled in F School until the completion of primary school.
58. Prior to the completion of the child's primary school, the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in a mainstream high school.
59. That for the purposes of Order 58 herein Mainstream school is taken to mean a school that is not an alternative school including but not limited to TT Schools or other alternative education.
60. That in the event the parties are unable to agree on what mainstream high school the child shall be enrolled in prior to when typical mainstream high schools are commencing enrolments, or on written request of either party, the mother shall provide a list of 3 schools to the father and the father shall select which mainstream high school the child shall attend within 28 days of receiving the mother's 3 nominations.
61. That in the event the father fails or refuses to nominate the school the child shall be enrolled in pursuant to Order 60 above, the mother is at liberty to nominate the school the child attends and shall be solely responsible for her enrolment.
62. That the parties shall authorise any school attended by the child to provide each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
MEDICAL
63. Each party shall notify the other as soon as possible and in any event within (4) hours of any serious injury or illness suffered by the child whilst in the party’s care.
64. Each party shall inform the other of the names and addresses of any medical professionals or other health professionals who treat the child whilst in their care within 24 hours of treatment and, on request, authorise them to provide all necessary information to the other party about the health and treatment of the child.
65. That the parties will ensure that they and the child attend on Ms G as and when directed by Ms G and follow any reasonable request, direction or requirement of Ms G, including attending on appointments and the frequency of such appointments.
66. Both parties are restrained from administering, or causing to be administered, any mental health medication or mood or mind altering medication to the child without the written consent of the other party or by order of the court.
MISCELLANEOUS
67. That the parties do all things necessary and execute all documents necessary to comply with the airlines 'unaccompanied minor' policy including but not limited to:
a. Paying any extra travel fee;
b. Dropping the child to the departure gate; and
c. Collecting the child from the arrival gate.
68. The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
69. The parties are restrained from administering to themselves any illicit drug at any time.
70. The father is to undertake hair follicle testing for the presence of illicit drugs during the months of January, April, July and October until the child attains the age of 18 years and shall provide the results of such testing to the mother within seven (7) days of receiving such results.
NOTATIONS:
1. That upon the child attaining the age of 16 years, the parties shall have regard to the child's wishes as to whether she wishes to live in Sydney with the Father or live in Perth with the Mother.
2. For the purposes of these Orders, the parties will use their best endeavours to put the child on a flight during school term periods:
a. By no later than 2:00pm when departing from Perth, to ensure she arrives at a reasonable hour in Sydney; and
b. Prior to 6:00pm when departing from Sydney, should the following day require the child's attendance at school.
Attachment B
Proposed Orders Sought by the Mother
1. All previous orders made are discharged.
2. The mother and father are to have equal shared parental responsibility for the child X (the “child”).
3. For the period until 31 December 2018:
(a) The mother is restrained from relocating the residence of the child from Sydney;
(b) The parties are restrained from removing the child from the Sydney Metropolitan Area without the written consent of the other party or order of the Court;
(c) The child is to spend time with the father as follows:
(i) In Week One of each fortnight, from after school or pre-school on Friday or 4.00pm until the commencement of school or pre-school on Monday or 9.00am, and each alternate week thereafter;
(ii) In Week Two of each fortnight, from after school or pre-school on Wednesday until before school or pre-school on Friday or 9.00am, and each alternate week thereafter;
(iii) From 9.00am on Christmas Eve 2017 until 2.00pm on Christmas Day 2017;
(iv) From 2.00pm on Christmas Day 2018 until 5.00pm Boxing Day 2018;
(v) For a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(vi) For a period of three (3) hours on the father’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(vii) From 9.00am on Father’s Day until the commencement of school or pre-school on the Monday or 9.00am;
(viii) For half of the Autumn, Winter and Spring school holiday periods as agreed between the parties and, failing agreement, for the first half of each school holiday in even numbered years and the second half of each school holiday period in odd numbered years;
(ix) For a period of two (2) weeks during the Christmas/January school holiday period commencing on 2 January in each year; and
(x) At such other times as the parties shall agree.
(d) The child is otherwise to live with the mother and, in addition, live with the mother as follows:
(i) from after school on the Friday before Mother’s Day until the commencement of school on the Monday following;
(ii) for a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother;
(iii) for a period of three (3) hours on the mother’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother; and
(iv) at such other times as the parties shall agree.
(e) For the purpose of facilitating the periods when the child is to live or spend time with each of the parties, the father must collect the child from the mother’s residence at the commencement of the time that the child is to spend with him and the mother must collect the child from the father’s residence at the conclusion of the time when the child is to spend time with the father PROVIDED THAT where these orders provide that the child is to spend time with the father or live with the mother is to commence after school or conclude before school then the parties must ensure that this changeover takes place at the child’s school.
(f) The parties are to facilitate telephone calls or communications via Skype between the child and the other party at 6.00pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care PROVIDED THAT if the child is not available at 6.00pm (Sydney time) then at such other time as the parties shall agree.
(g) The father is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in his care as provided by these Orders and the mother is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in her care as provided by these Orders.
(h) Each party must notify the other as soon as possible and in any event within four (4) hours of any serious injury or illness suffered by the child whilst in that party’s care.
(i) Each party must inform the other of the names and addresses of any medical professionals who may treat the child whilst in their care and authorise them to provide all necessary information to the other party about the health and treatment of the child.
(j) The parties must authorise any school attended by the child to provide to each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending the school.
(k) The parties must do all things to ensure that the child is enrolled in and attends the F School until the completion of Year 6.
(l) The parties are restrained from denigrating each other or using abusive or intimidating language to each other in the presence or hearing of the child the child.
4. From 1 January 2019:
(a) The mother be permitted to relocate the child’s residence from the Sydney Metropolitan are to the Perth Metropolitan area.
(b) The father spend time with the child in Sydney as follows:
(i) The weekend closest to the father’s birthday;
(ii) The weekend closest to the child’s birthday in odd numbered years;
(iii) the first half of the April school holidays;
(iv) the public Easter holidays;
(v) the whole of the July school holidays;
(vi) the first half of the September/October school holidays;
(vii) During the first half of the December/January school holidays where the December/January school holidays commence in an odd numbered year;
(viii) During the second half of the December/January school holidays where the December/January school holidays commence in an even numbered year;
(ix) For one week during each of Terms 1, 2 and 3 of the school year (“Supervised Time”). The weeks shall be determined by agreement between the parties or failing agreement, will be the last week of each term.
(x) The Respondent bear any costs of supervision during Supervised Time.
(c) The parties are to facilitate telephone calls or communications via Skype between the child and the other party.
(d) During the period that the child is residing with the father in Sydney during Supervised Time, subject to the mother being granted leave from work:
(i) The mother is permitted to pick up the child from the father’s residence, at 8.30am and drop off the child at 5.30pm to the father’s residence; and
(ii) To supervise the school work of the child during school hours.
(e) The Respondent is to bear the cost of all transportation between Sydney and Perth.
EDUCATION
5. The child continues to attend F School until the completion of Year 6.
6. From 2019 to 2021, the child attends school at CC School, WA by:
(a) Attending school; or
(b) Undertaking home studies under the supervision of an adult during Supervised Time.
7. From 2022 onward, the child is to attend, subject to a successful application, DD School, WA.
…
Attachment C
Proposed Orders sought by the ICL
1. That the mother and the father shall have equal shared parental responsibility for X born … 2006 ('the child').
2. That the parties shall be restrained from relocating the child's residence from Sydney without the prior written consent of the other party.
IF BOTH PARENTS CONTINUE TO RESIDE IN SYDNEY
3. That the child shall live with the mother and father as agreed between the parties and, failing agreement as follows:
3.1 During school terms, in a week about arrangement:
3.1.1 In week 1 with the mother from the commencement of school Monday until the end of school the following Monday.
3.1.2 In week 2 with the father after school Monday until the commencement of school the following Monday.
3.2 For half of each of the child’s school holidays,:
3.2.1 With the father for the first half of each school holiday period in even numbered years and the second half of each school holiday period in odd numbered years.
3.2.2 With the mother for the second half of the school holiday period in even numbered years and the first half of the school holiday period in odd numbered years.
3.2.3 With the father from 9am on Christmas Eve until 2pm on Christmas Day in odd numbered years and from 2pm on Christmas Day until 5pm on Boxing Day in even numbered years.
3.2.4 With the mother 9am on Christmas Eve until 2pm on Christmas Day in even numbered years and from 2pm on Christmas Day until 5pm Boxing Day in odd numbered years.
3.2.5 Notwithstanding any other order, the child shall spend time with the mother from 9 am until 6 pm on Mother’s Day
3.2.6 Notwithstanding any other order, the child shall spend time with the father from 9 am until 6 pm on Father Day.
3.2.7 The parent who does not otherwise have care of the child on her birthday will spend time with the child from after school until 7pm if it is a school day or from 1pm to 5pm if it not a school day.
3.2.8 Notwithstanding any other order, the child shall spend time with the father on … (C’s birthday) and on …(D’s birthday) from after school to 7pm if a school day and from 1pm to 5pm if not a school day.
4. That handovers shall occur at the child’s school on days falling on a school day and otherwise the father shall collect the child from the mother’s residence at the commencement of his time with the child, and the mother shall collect the child from the father’s residence at the commencement of her time with the child.
5. That the child shall attend F School until the completion of year 6 primary school.
IN THE EVENT THE MOTHER RELOCATES OUTSIDE SYDNEY
6. That the child shall live with the father in Sydney.
7. That the child shall spend time with the mother as agreed between the parties and failing agreement as follows:
7.1 During the Term 1, 2 and 3 NSW school term holiday period:
7.1.1 For the first half of the school holiday period in Perth in even numbered years and the second half in odd numbered years.
7.2 During the Christmas/Summer School Holiday period:
7.2.1 For the first half of the school holiday period in Perth in even numbered years and the second half in odd numbered years.
7.3 The mother is at liberty to spend time with the child on one weekend in each school term upon providing the father with no less than 14 days written notice on dates to be agreed and failing agreement as follows:
7.3.1 From Easter Friday until 7:00pm Easter Monday.
7.3.2 During the Mother's day weekend, being the 2nd Sunday in May, from after school on Friday until 7:00pm Sunday.
7.3.3 On a weekend proximate to the child's birthday, being 17 June, from after school on Friday until 7:00pm Sunday.
7.3.4 On a weekend proximate to the Mother's birthday, being 25 October, from after school on Friday until 7:00pm Sunday.
8. That the parties share the cost of the child’s return flights from Sydney to Perth during each school holiday period as follows:
8.1 The mother shall be responsible for the cost of the child's flights to Perth at the beginning of the time with mother in Perth and the father shall be responsible for the cost of the child’s return flights to Sydney at the conclusion of the time in Perth.
9. That for the purpose of order 8, the party responsible for the cost of the flights shall book the flights and give the other parent 14 days notice in writing of the travel arrangements that they have made, including travel and telephone details and a notice in writing from the airline that the child has been booked to fly as an “unaccompanied minor” to travel.
10. That for the purpose of facilitating travel to Perth pursuant to these orders, the father is to deliver the child to Sydney airport for her booked flight and the mother is to collect the child from Perth airport at the commencement of her time with the child and the mother is to deliver the child to Perth airport at the conclusion of her time with the child for her booked return flight and the father is to collect the child from Sydney airport.
11. That the parent who is collecting the child from the airport shall SMS/text message the other as soon as possible after collecting the child from the airport to confirm her arrival.
12. That if the mother relocates to Perth for a period greater than 1 school term and thereafter returns to permanently reside in Sydney;
12.1 for a period of 8 weeks from the date of the mother’s return, the child is to live with the father and spend time with the mother:
12.1.1 In Week 1 from after school Monday until before school Thursday
12.1.2 In Week 2, from after school Thursday until before school Monday.
12.1.3 Thereafter the arrangements set out in orders 3 and 4 shall apply.
ADDITIONAL ORDERS APPLICABLE WHETHER THE CHILD LIVES IN SYDNEY OR PERTH
13. That the parties are to facilitate telephone calls or communications via Skype between the child and the other party at any reasonable time.
14. That on or before 1 July 2018, both parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in a mainstream high school, being a school that is not an alternative school including but not limited to TT Schools or other alternative education.
15. That in the event the parties are unable to agree on what mainstream high school the child shall be enrolled in by 20 January 2018, or on written request of either party:
15.1 That by 11 February 2018, the father shall provide a list of 3 schools to the mother.
15.2 That by 4 March 2018 the mother shall select which mainstream high school from the father's 3 nominations.
15.3 That in the event that either party fails or refuses to participate in the school nomination process, the other parent shall solely be responsible for nominating the school the child attends and for her enrolment.
16. That the parties shall authorise any school attended by the child to provide each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
17. That the parties shall both be entitled to attend the following events involving the child:
17.1 Sporting fixtures
17.2 Extra curricular activities that allow for parental attendance
17.3 School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
18. Each party shall notify the other as soon as possible and in any event within (4) hours of any serious injury or illness suffered by the child whilst in the party’s care.
19. Each party shall inform the other of the names and addresses of any medical professionals or other health professionals who may treat the child from time to time and shall authorise them to provide all necessary information to the other party about the health and any treatment provided to the child.
20. That the parties shall do all things necessary to facilitate the child’s attendance on Ms G for as long as Ms G deems necessary and each party shall follow any reasonable request, direction or recommendation Ms G, including in relation to the frequency or otherwise of scheduled consultations.
21. That for a period of no less than 6 months from date of the orders each party is restrained from seeking to have the child assessed for Attention Deficit Hyperactivity Disorder (ADHD).
22. Thereafter, in the event that either of the parties seeks to have the child assessed for ADHD the parties shall attend upon a consultation with Ms G for the purpose of receiving Ms G’s advice as to whether an assessment is required and if so to obtain her recommendation as to an appropriate child and family psychiatrist to conduct the assessment.
23. The parties shall both attend on the child and family psychiatrist conducting an assessment for ADHD and provide any information that person may request to assist in his/her assessment.
24. The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
25. That the parties are restrained form making critical or derogatory remarks about the other parent or their family in the presence or hearing of the child.
26. The father shall be restrained from using any illicit substance whilst the child is in his care.
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