BROWN and BROWN
[2017] FCWA 43
•31 MARCH 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BROWN and BROWN [2017] FCWA 43
CORAM: O'BRIEN J
HEARD: 7 MARCH 2017
DELIVERED : 31 MARCH 2017
FILE NO/S: PTW 6688 of 2012
BETWEEN: MR BROWN
Applicant
AND
MS BROWN
Respondent
Catchwords:
PARENTING - where major issues agreed - narrow disputes as to handover, special events, holidays and other matters - turns on own facts.
Legislation:
Family Law Act 1975 (Cth), s 60CC, s 65D
Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Mr R Hooper SC
Solicitors:
Applicant: Self-Represented Litigant
Respondent: DCH Legal Group
Case(s) referred to in judgment(s):
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Brown] (“the husband”) and [Ms Brown] (“the wife”) began living together in October 2001 and were married in August 2002.
2Their son [Child A] was born in November 2003 and their daughter [Child B] was born in July 2005 (“the children”).
3The parties separated in July 2012. In November 2012, the husband commenced the present proceedings. Since then the parties and their children have been embroiled in litigation in this court, in relation to both parenting arrangements and financial matters.
4Self-evidently, the proceedings have been protracted. They have also been difficult and strongly contested. Prior to the commencement of the trial on 7 March 2017, there had been 36 separate court events during the life of the proceedings.
5To their credit, the parties were eventually able to resolve their difficult financial dispute. Orders were made by consent finalising the financial proceedings on 17 August 2016. The parenting proceedings remained unresolved and were programmed on that day to trial.
6To their further credit, albeit not without difficulty, the parties were also able to resolve most aspects of their dispute in relation to the children. As a result of those efforts, very few matters remained in dispute so as to require determination by the court.
7The issues requiring determination are summarised further below. The parenting orders to which the parties agreed will be incorporated in the orders to be set out at the end of these reasons. In each instance, I regard the agreements reached as appropriate and supported by the evidence.
8Most of the remaining issues between the parties arise at least in part because of issues to do with geography and the sporting and other commitments of the children. The husband is a [labourer] who lives on his farm outside [Country Town A]. The wife is a [secretary] who works full-time and lives in [Suburb A]. The children are heavily involved in [Sport A], [Sport B] and in Child B’s case [Sport C].
Matters not in dispute
9The parties agreed that there should be an order for equal shared parental responsibility and that the children should live with the wife.
10They also agreed that during school term, and subject to issues relating to the children’s sporting and other commitments discussed further below, the children should spend time with the husband each alternate weekend from 4.30 pm on Friday to 4.30 pm on Sunday.
11They further agreed that in the event that Child B has a Sport C match or the children are participating in Sport A on a Saturday when they would otherwise be scheduled to spend time with the husband, the husband’s time with the children should commence no later than two hours following the completion of the relevant sporting event.
12The parties agreed in principle that the children should not be required to miss special sporting events if those events fall on a weekend where they would otherwise be with the husband. They were not able to agree as to what events would be sufficiently “special”.
13They further agreed that the husband should be at liberty to nominate a particular number of weekends on which Child B’s attendance at Sport C, or the children’s attendance at Sport A, should be suspended so as not to interfere with their time with him. Consistent with their disagreement as to just what would constitute a “special” sporting event, they were not able to agree whether the husband could exercise that nomination if the effect of it would be that a “special” sporting event would be missed.
14In broad terms, the parties agreed that the children should spend half of the mid-term school holidays with the husband and three weeks of the summer school holidays with him. They were not able to agree the precise arrangements in that regard.
15Similarly, the parties were agreed as to the arrangements for the children to spend time with each of them on most special occasions, save for a disagreement about the precise arrangements to be made for Easter.
16The parties agreed that they should share the transport of the children for the purposes of them spending time with the husband. They were not able to agree the precise arrangements for handover.
17While it was previously a matter of dispute between them, by the conclusion of the trial the parties were able to agree that the children should be afforded privacy in their telephone communications with each parent and that neither parent should record those conversations.
18The parties were not able to agree orders in relation to the question of potential overseas travel for the children and the issue of passports in their names.
19The wife sought an order that each party refrain from using corporal punishment to discipline the children; the husband did not agree to such an order, expressing concern that if he, for example, grabbed one of the children by the arm while making a point in verbally disciplining them, he might be accused of acting in breach of the order.
20The competing proposals of the parties in relation to each of the matters in dispute will be set out further below, in the context of my determination of each issue.
The law
21Section 65D of the Family Law Act 1975 (Cth) (“the Act”) provides that the court may make such parenting order as it thinks proper.
22As the High Court recently observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402 at [32]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
23As an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each of their parents would be in their best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
24Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent, I am required to consider whether spending substantial and significant time with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.
25While neither party sought orders that the children live equally with both parents, nor orders which would have the effect of them spending substantial and significant time with each parent as that term is defined in the Act, I must nevertheless undertake the decision-making process in the manner required by the legislation.
26Section 60CC provides as follows:
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
27Given the narrow parameters of the disputes between the parties, many of the factors listed in s 60CC are of little or no relevance to the issues for determination. It is not necessary, therefore, to traverse them in detail in these reasons; it is sufficient to note that I have turned my mind to each of the considerations listed in the section and will address them in detail to the extent they are relevant.
The husband as a self-represented litigant
28The wife was represented by Senior Counsel. The husband was self-represented.
29At the status hearing listed of the court’s own motion on 1 March 2017 I addressed with the husband his failure to that point to file an updated trial affidavit and Papers for the Judge pursuant to orders which had earlier been made. I explained the process to him and extended the time for him to comply.
30The husband complied with the orders as amended and filed an updating affidavit setting out in some detail the evidence upon which he relied in relation to the matters remaining in dispute.
31At the commencement of the trial, I explained to the husband the steps that I was required to take to ensure procedural fairness. I informed him of the manner in which the trial was to proceed, the order in which evidence would be given and submissions made, and his right to cross-examine the wife. At the status hearing, I explained to him the importance of cross-examination and the likelihood that evidence that was not challenged on cross-examination would be accepted.
32I explained to both parties the principles by which child-related proceedings are conducted.
33I also ensured that the husband understood that the usual rules of evidence were not to be applied and that I would explain to him if any change in the usual procedure was requested by the wife’s counsel in such a way that might cause him any disadvantage. I told him that I would advise him of his right to object to any such course, in which case I would determine any objection on its merits.
34I explained to the husband my obligation to attempt to clarify the substance of any submissions he might make, so as to ensure that I properly understood his case as he wished it to be put. He had earlier been provided with the handbook produced by the court for the assistance of self-represented litigants and had by that process had the relevant provisions of the Act drawn to his attention.
35The husband had no hesitation in asking me questions when he felt it necessary. I am satisfied that he understood the information that I provided to him, and that the trial proceeded in a manner which afforded procedural fairness to both parties.
The evidence at trial
36The husband relied on the following affidavits:
1)his initial trial affidavit filed on 27 August 2015;
2)his updated trial affidavit filed on 3 March 2017;
3)affidavit of [Witness A] filed on 10 December 2015;
4)affidavit of [Witness B] filed on 27 August 2015;
5)affidavit of [Witness C] filed on 15 June 2015; and
6)affidavit of [Witness D] filed on 15 June 2015.
37The wife relied on the following affidavits:
1)her initial trial affidavit filed on 4 December 2015;
2)her affidavit in response to specific questions filed on 28 June 2016; and
3)her updated affidavit filed on 23 February 2017.
38Both parties relied on the two affidavits of the Single Expert Witness Darin Cairns filed on 13 August 2014 and 18 May 2016.
39The wife did not require the husband’s witnesses to present for cross-examination. Her counsel cross-examined the husband and the husband cross-examined the wife.
40Neither party required Mr Cairns to present for cross-examination.
Observations as to the oral evidence at trial
41I am satisfied that both parties endeavoured to give their evidence honestly.
42While it was apparent that some of the husband’s answers to questions in cross-examination were coloured by his strong sense that he has been treated unfairly in various ways in the past, I nevertheless formed the view from his answers, the various admissions and concessions that he made and from his submissions that he has endeavoured to compromise regarding the arrangements for the children to the best of his ability, and to focus on their needs.
43The wife was cross-examined only briefly and of course did not make submissions on her own behalf as she was represented by Senior Counsel. Nevertheless, I am satisfied that she too gave her evidence honestly and endeavoured to sensibly compromise to the best of her ability. By way of simple example, in response to a question from me she readily acknowledged that notwithstanding the orders sought in her minute filed for the purposes of trial, it was entirely unnecessary for Sport C games for which Child B might be designated captain for the day to be included in the definition of “special sporting events”, as it would be easy for her to liaise with Child B’s coach to ensure that such games fell on weekends when Child B would not be spending time with the husband.
44For reasons which will become apparent below, the resolution of the dispute between the parties does not turn in any meaningful sense on any assessment of the credibility of either of them.
Equal shared parental responsibility and the considerations that flow from it
45As already noted, the parties agree that an order for equal shared parental responsibility is in the best interests of the children and should be made. The evidence supports the conclusion reached by the parties. It is not, therefore, necessary to consider whether the statutory presumption in favour of equal shared parental responsibility applies in this case.
46It is, however, necessary for the court to comply with the mandatory provisions of s 61DA.
47Neither party has sought an order that the children live equally with each parent. The evidence supports the conclusion reached by the parties that such an arrangement would not be in the best interests of the children, nor would it be reasonably practicable.
48The term “substantial and significant time” is defined in the Act in the following manner:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
49Again, neither party sought orders which would have the effect of the children spending time with the husband that would meet that definition. Again, the evidence supports the conclusion reached by the parties that such an arrangement would not be in the best interests of the children, nor would it be reasonably practicable.
50It falls then to determine the parenting orders to be made in relation to matters which remain in dispute, by reference to the relevant considerations under s 60CC. The legislation makes it clear that the considerations set out in that section are an inclusive rather than exclusive list, by sub-s 60CC(2)(m) which provides that the court shall consider “any other fact or circumstance that the court thinks is relevant”.
The primary considerations
51It is common ground between the parties that the children have a meaningful relationship with each of them and that those relationships are in their best interests and to their benefit.
52While issues have been raised earlier in the proceedings in relation to family violence, and there are factual disputes between the parties in that regard, neither party suggested that orders now need to be crafted with a view to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations
53As already noted, it is common ground that the children have close and loving relationships with each parent.
54I am also satisfied that each parent has appropriately taken the opportunity to participate in making decisions about major long-term issues in relation to the children, and to spend time and communicate with them.
55Both parties have fulfilled their obligations to maintain the children. An agreement has been formalised in relation to the payment of child support.
56Both parties have established an appropriate capacity to provide for the needs of the children, including their emotional and intellectual needs. It is also common ground that, apart from some historical difficulties which have hopefully now been put behind them, each has demonstrated an appropriate attitude to the children and to the responsibilities of parenthood.
57The disputed history of family violence between the parties does not, as already noted, impact on the orders which need to be made given the narrow parameters of the issues which are unresolved between the parties and the nature of the matters not agreed.
58It is clear from the long and sad history of this litigation, and both parties agree, that to the extent possible orders should be made which would be least likely to lead to the institution of further proceedings in relation to the children.
59The court is also required to consider any views expressed by the children and any factors relevant to the weight that should be given to those views, the practical difficulty and expense of the children spending time with and communicating with each parent, whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis and any other fact or circumstance that the court thinks relevant.
60Those considerations will be discussed further as relevant below.
The first issue – what should constitute a “special sporting event”?
61In her minute of orders sought at trial, the wife proposed the following definition:
“Special Sporting Events” means any of the following [Sport A], [Sport B] and [Sport C] events:
·Carnivals;
·Mid-season championships, including Club, Zone and State finals and Championships;
·End-of-season championships, including Club, Zone and State finals and Championships;
·End-of-season wind up functions;
·Presentation functions (uniforms, trophies, awards);
·Invitation-only training clinics;
·Try-outs for Zone, District, State and National teams;
·A [Sport C] match when [Child B] is the rostered team captain.
62The husband’s position may be summarised as follows:
1.As noted above, the [Sport C] matches when [Child B] is the rostered team captain should be excluded from the definition;
2.He agrees that the children should not have to face a choice about potentially missing championship events, finals or trophy presentations when they themselves are receiving a special award, and that those events should be included in the definition;
3.He would say that other presentation functions, invitation only training clinics, tryouts for representative teams and end of season windup functions should be included in the definition but subject to the children’s wishes. He would not want the children to miss out on those events if they want to attend them, but said that there have been times when they have indicated to him that they would prefer to come to the farm; and
4.He would say that “carnivals” should be excluded from the definition as being too broad and open-ended.
63The husband’s position in that regard is sensible and appropriately child focused. He does not want the children to miss sporting events which are particularly important to them, but by the same token he does not want the definition of what might constitute a “special” event to be so broad as to be open to manipulation by the wife. His approach in that regard is reflected in the orders to which he has otherwise agreed in relation to a delayed start for the children’s weekend time with him so as to accommodate their sporting commitments.
64I propose to make orders broadly in the terms proposed by the husband.
School camps
65The wife sought an order in the following terms:
Notwithstanding any Order in these Orders (sic), the Applicant shall permit and facilitate the children’s attendance at all school camps and Special Sporting Events which occur during the Applicant’s scheduled time with the children.
66The husband’s position in relation to special sporting events is largely addressed by my determination as to the appropriate definition of those events. The husband raised no particular difficulty in relation to the question of school camps, acknowledging that the children should be able to attend them.
67Helpfully, in closing, Senior Counsel for the wife suggested that the agreed order which directs the parties to schedule as far as is practicable the husband’s time with the children for weekends when they do not attend Sport B should have added to it reference to school camps and special sporting events. In that way, the wife will be obliged to do what she can to ensure that such events occur on weekends when the children would be with her, minimising to the extent possible the disruption of their time with the husband.
Nomination of weekends when the children are to spend time with the husband regardless of sporting commitments
68The parties agreed that, provided he gives 14 days’ notice, the husband should be at liberty to nominate two weekends in each of Terms 2 and 3 during which Child B’s Sport C attendance will be suspended so as to ensure that the children spend the whole weekend with him.
69Similarly, the parties agreed that in each of Terms 1 and 4, again on 14 days’ notice, he should be at liberty to nominate one weekend during which the children’s attendance at Sport A will be suspended so as to ensure that they spend the whole weekend with him.
70In each case, the wife sought an additional order that the husband not be permitted to exercise the nomination on a weekend when a special sporting event is scheduled.
71Bearing in mind the definition to be adopted in relation to special sporting events, and the amended position of the husband, I do not regard the additional order sought by the wife as necessary.
Timing of School holidays – holidays at the end of Terms 1, 2 and 3 each year
72The husband sought orders in the following terms:
9That during the school holidays, the children spend time with the Applicant as follows:
9.1For the first half of the Term 1 school holidays, including any public holidays and pupil-free days immediately prior to or after the Term 1 school holidays, commencing at 4.30 pm on the last day of school;
9.2For the second half of the Term 2 and Term 3 holidays, including any public holidays and pupil-free days immediately prior to or after the relevant school holiday period, commencing at 4.30 pm on the first day of the second half of the relevant school holiday period and concluding 4.30 pm on the commencement of the new school term;
73In relation to those holidays, and Christmas school holidays, he sought a further order as follows:
10That if either party wishes to change the arrangements for the children during school holidays that are provided for in these Orders, the party seeking to make that change must give the other party a minimum of fourteen (14) days’ written notice and the other party must not unreasonably withhold their consent to such a change.
74The wife sought orders in the following terms:
10During the school holidays, the children spend time with the Applicant as follows:
In 2017 and each alternate year thereafter:
10.1For the first half of the Term 1 school holidays commencing at 4.30 pm on the last day of school term and concluding at 4:30pm on the second Saturday of the vacation;
10.2For the second half of the Term 2 and Term 3 school holidays commencing at 4.30 pm on the second Saturday of the vacation and concluding at 4.30 pm on the last Sunday of the vacation;
In 2018 and each alternate year thereafter – reverse of the above
10.3For the second half of the Term 1 school holidays commencing at 4.30 pm on the second Saturday of the vacation and concluding 4.30 pm on the last Sunday of the vacation;
10.4For the first half of the Term 2 and 3 school holidays commencing at 4.30 pm on the last day of school and concluding at 4:30pm on the second Saturday of the vacation;
75The parties agreed that in the event that a public holiday or pupil free day occurred immediately after the husband’s scheduled time with the children, that time would be extended to 4.30 pm on the relevant extra day.
76Self-evidently, the parameters of the dispute in relation to this aspect of the matter are extremely narrow. The husband’s argument, in effect, was that the current arrangements pursuant to interim orders providing for him to have half the school holidays have been working well and that he sees no need to change. He says also that he has been seeking extra time with the children throughout the proceedings and that he would not like to see any alteration to the orders which might have the effect of him losing even one day. He notes also that on occasions there are sporting events at the end and beginning of terms which, bearing in mind the other orders, might have an impact.
77The wife submits that given the communication difficulties between the parties the more precise form of orders proposed by her is preferable, particularly bearing in mind the legislative requirement that I consider making orders least likely to lead to further applications to the court. She points to a potential difficulty in agreeing just what would constitute “half” of the relevant school holiday period if there was an uneven number of days.
78On balance, I consider the more precise arrangement proposed by the wife to be preferable.
Easter
79The dispute between the parties in relation to arrangements for Easter was similarly narrow. They agreed that the children should spend time with the wife in alternate years from 4.30 pm on Maundy Thursday to 4.30 pm on Easter Saturday, and in each intervening year from 4.30 pm on Easter Saturday to 4.30 pm on Easter Monday.
80The wife said that arrangement should apply every year regardless of when Easter falls. The husband contended that the arrangement should only apply in the event that Easter falls outside the school holidays.
81The wife gave evidence, which the husband did not dispute, to the effect that Easter will only infrequently fall outside mid-term school holidays. The husband accepted that the wife is in employment and has time off over Easter; he acknowledged also that he often has to work on Easter Sunday. The wife gave evidence that she has not spent an Easter Sunday with the children since 2012.
82Neither party suggested that religious issues were a factor.
83Given the wife’s employment and her availability every year at Easter, and the husband’s evidence to the effect that, entirely understandably, his commitments on the farm continue regardless of whether or not they fall on the Easter weekend, I regard the wife’s proposals as preferable.
Timing of School holidays – summer each year
84The parties agree that the children should spend time with the husband during the summer school holidays. The husband proposes that should occur in one block at the end of the holidays, in the following terms:
9.3For the second half of the Christmas school holidays, including any public holidays and pupil-free days immediately prior to or after the Christmas school holidays, commencing at 4.30 pm on the first day of the second half of the Christmas school holidays and concluding at 4.30 pm on the second last day of the Christmas school holidays.
85The wife proposes that it should occur in two separate non-consecutive blocks, with an order in the following terms:
In every year
10.5During the Christmas school holidays for one week in December and two weeks in January, such time to be exercised in two non-consecutive blocks and to conclude no later than 3 days before the first day of school and on dates to be notified by the Applicant in writing not less than 42 days prior to the commencement of the vacation.
86The husband submitted that having the children with him for three weeks at the end of the holiday gave him the best opportunity to spend time with them in circumstances where they would be more settled. He said that he would generally have less work to do on the farm at that time of year, as harvest generally starts in late October or early November and runs to the first week of January. He would, accordingly, be more personally available to the children although he acknowledged that the precise timing of his farming commitments necessarily varies from year to year depending on conditions outside his control.
87The wife pointed to the views of the children as reported by the Single Expert Witness. Mr Cairns reported that “The overall picture Child A painted was that he enjoyed the farm for small periods but over time it became boring and he longed for more to do.”
88He went on to say:
Based on the children’s reports, especially Child A, it seems that in shorter periods of time they enjoy stays there a great deal more, as the novelty’s (sic) such as riding the motorbike do not get repetitive. These challenges to sustain interest are due to their father having to work the farm whilst the children are there, but also the lack of other children or activities being there to entertain them.
It seemed readily apparent, in speaking with both of them, that the longer the time they spent there on the farm the harder it became to stay entertained...As a consequence of the children’s expressed concerns and challenges, I would suggest that they would prefer a 1 week – 2 week split at their father’s and a preference for one of those periods to involve an outing, perhaps to their cousins in [a nearby town] or a fishing trip or the like.
89On balance, I consider the wife’s proposal to better reflect the children’s views and to be in their best interests.
Handover
90The parties agreed orders to be made in the event that a special sporting event occurred during time when the children would otherwise be with the husband and he elected to have handover occur at or about the event.
91They were unable to agree their regular handover arrangements.
92The husband sought orders in the following terms:
14That all handovers of the children be shared equally between the parties, in so far as is practicable, in the following manner;
14.1In the event that handovers occur on a day that the Respondent is working at her primary job, the Applicant shall collect the children from [Suburb B] at the commencement of his time with them and deliver the children to [Country Town C] at the conclusion of his time with them, provided that the Respondent give the Applicant a copy of the Respondent’s work roster confirming that she is working at her primary job on the day of handover by no later than fourteen (14) days prior to the relevant day of handover; and
14.2Otherwise, the Respondent shall deliver the children to [Country Town C] at the start of the Applicant’s time with the children and the Applicant shall deliver the children to [Suburb B] at the conclusion of his time with them.
93The wife sought orders in the following terms:
14.Subject to paragraph 15 below, all handovers of the children shall occur as follows:
14.1At the [X Road] car park at the commencement of the Applicants time with them;
14.2At [Suburb B] BP Service station at the conclusion of the Applicants time with them.
94In essence, the dispute between the parties was as to whether handover is to take place (other than at Suburb B) at the Country Town C BP service station located on [Country Town C Highway] or at the parking bay approximately 100 metres from the intersection of Country Town C Highway and the X Road.
95The husband acknowledged that for the wife to deliver the children to the Country Town C BP service station would require her to drive past the parking bay for another 20 kilometres or thereabouts. He acknowledged also that the distance from the farm to the parking bay was approximately 26 to 30 kilometres. He preferred that handover take place at the service station primarily for two reasons; firstly, there are facilities and a shop at the service station and secondly there will always be third parties present which, from his point of view, would ensure that there would be witnesses if he was to be falsely accused of behaving inappropriately. He also preferred to travel through Country Town C so as to buy fuel.
96The wife’s evidence was that the children have always preferred Suburb B as a handover location as it enables them to take the most direct route between homes, resulting in a shorter journey time. She said that when handovers occur at Country Town C the children have to be driven past the turnoff to the farm and then continue on to Country Town C, before “doubling back” to the husband’s home, adding an extra 30 minutes to their journey and an extra 20 minutes to hers.
97Frankly, either handover arrangement would be suitable from the children’s perspective. On balance, I conclude that the arrangement proposed by the wife, which will reduce their travel time, is preferable.
Travel and passports
98The wife proposed orders which would enable the children to have and maintain passports and give either party the opportunity to travel with them overseas on appropriate notice being given.
99It emerged during cross-examination that the husband’s opposition to those orders arose from a concern on his part that if the children were taken overseas by the maternal grandparents or either of them, they might not be returned to Australia. In response to a question from me he acknowledged that his fear in that regard did not extend to the children being taken overseas by the wife; after discussion, he indicated that while he would not actively consent to the order he accepted it was likely that it would be made and did not seek to argue strenuously against it.
100I propose to make the orders sought by the wife.
Corporal punishment
101The wife sought an order that on a without admission as to need basis, each party be restrained from using corporal punishment to discipline the children.
102The husband did not agree, saying that sometimes a “tap on the hand or similar” or “grabbing the child by the arm” to ensure that they are paying attention could be useful. He also expressed concern at the possibility of physical contact in the nature of grabbing the child’s arm to ensure attention was being paid being construed as corporal punishment and putting him at risk of breaching the proposed order.
103While I accept that the husband’s concern in that regard was genuinely held, the proposed order will not have the effect about which he is concerned.
104I propose to make the order sought by the wife.
Proposed orders
105Subject to any submissions as to form, I propose to make the following orders:
Nothing that for the purpose of these orders:
A.“Special Sporting Events” means any of the following [Sport A], [Sport B] and [Sport C] events:
(a)mid-season championships, including Club, Zone and State finals and Championships;
(b)end-of-season championships, including Club, Zone and State finals and Championships; and
(c)presentation functions at which either child is to receive an individual award;
B.“Optional Special Sporting Events” means any of the following [Sport A], [Sport B] and [Sport C] events:
(a)end of season wind up functions;
(b)presentation functions at which neither child is receiving an individual award;
(c)invitation only training clinics; and
(d)try outs for Zone, District, State and National teams;
C.“[Suburb B]” means the [Suburb B Full Service Station] located on [Country Town C] Highway; and
D.“The [X Road] car park” means the area signed “Parking Bay” which is approximately 100 metres from the intersection of [Country Town C] Highway and [X Road].
It is ordered that:
1.All previous parenting orders be and are hereby discharged.
2.[Mr Brown] (“the Applicant”) and [Mrs Brown] (“the Respondent”) have equal shared parental responsibility for the children of the marriage, [Child A] born [in] November 2003 and [Child B] born [in] July 2005 (“the children”).
3.The children live with the Respondent.
4.Overriding events:
(a)notwithstanding any provision in these orders, the Applicant shall permit and facilitate the children’s attendance at all school camps and Special Sporting Events which occur during the applicant’s scheduled time with the children; and
(b)notwithstanding any provision in these orders, the Applicant shall permit and facilitate the children’s attendance at all Optional Special Sporting Events which occur during the Applicant’s scheduled time with the children, if such attendance is in accordance with the children’s wishes.
5.During school term:
(a)the children spend time with the Applicant from 4.30 pm on Friday to 4.30 pm on Sunday in each alternate weekend during school terms, the rotation of which is to coincide, in so far as is practicable, with the weekends when the children do not attend [Sport B], school camps, Special Sporting Events and Optional Special Sporting Events;
(b)in the event that:
(i)[Child B]’s [Sport C] match falls on a Saturday during the Applicant’s scheduled time with the children; or
(ii)the children are participating in a [Sport A] event on a Saturday during the Applicant’s scheduled time with the children;
then subject to paragraphs 6 and 7 or these orders paragraph 5(a) of these orders be suspended and the Applicant spend time with the children commencing no later than two (2) hours following the completion of the relevant sporting event on Saturday until 4.30 pm on Sunday.
6.For the purpose of subparagraph 5(b) of these orders, the Applicant have liberty to nominate two (2) weekends in each of Terms 2 and 3 during which [Child B]’s [Sport C] attendance will be suspended and the children will spend time with the Applicant from 4.30 pm on Friday to 4.30 pm on Sunday, provided that the Applicant give the Respondent no less than 14 days’ written notice of his nominated weekend.
7.The Applicant have liberty to nominate one (1) weekend in each of Terms 1 and 4 during which the children’s attendance at [Sport A] will be suspended and the children will spend time with the Applicant from 4.30 pm on Friday to 4.30 pm on Sunday, provided that the Applicant give the Respondent no less than 14 days’ written notice of his nominated weekend.
8.For the purpose of subparagraph 5(b) of these orders, upon the children meeting their annual quota for eligibility to participate in the [Sport A] finals, subparagraph 5(b)(ii) of these orders will cease to apply for the remainder of the school terms in that year.
9.Forthwith upon the making of these orders, the Respondent sign all documents and do all things necessary to irrevocably authorise and direct the ongoing release of information from the organisers of [Sport A] to the Applicant in respect of the children, including but not limited to the children’s performance records, upcoming special [Sport A] events for the children, and the eligibility requirements for the children to participate in [Sport A] finals.
10.During the school holidays, the children spend time with the Applicant as follows:
(a)in 2017 and each alternate year thereafter:
(i)for the first half of the Term 1 school holidays commencing at 4.30 pm on the last day of school term and concluding at 4.30 pm on the second Saturday of the vacation; and
(ii)for the second half of the Term 2 and Term 3 school holidays commencing at 4.30 pm on the second Saturday of the vacation and concluding at 4.30 pm on the last Sunday of the vacation;
(b)in 2018 and each alternate year thereafter:
(i)for the second half of the Term 1 school holidays commencing at 4.30 pm on the second Saturday of the vacation and concluding 4.30 pm on the last Sunday of the vacation; and
(ii)for the first half of the Term 2 and 3 school holidays commencing at 4.30 pm on the last day of school and concluding at 4.30 pm on the second Saturday of the vacation;
(c)in every year:
(i)during the Christmas school holidays for one week in December and two weeks in January, such time to be exercised in two non-consecutive blocks and to conclude no later than three (3) days before the first day of school and on dates to be notified by the Applicant in writing not less than 42 days prior to the commencement of the vacation.
11.In the event of public holidays or pupil-free days for the children occurring immediately after the Applicant’s scheduled time with the children, the Applicant’s time with the children on that weekend be extended to 4.30 pm on the public holidays or pupil-free days.
12.Orders for the children to spend time with the Respondent be suspended and the children spend time with the Applicant for special occasions as follows:
(a)in each alternate year commencing 2017, from 4.30 pm on Holy Thursday to 4.30 pm on Holy Saturday and in each intervening year commencing 2018, from 4.30 pm on Holy Saturday to 4.30 pm on Easter Monday;
(b)on Father’s Day weekend, from 4.30 pm on the day before Father’s Day to 4.30 pm on Father’s Day;
(c)on the children’s birthdays and on the Applicant’s birthday, for up to four (4) hours, at a time to be agreed between the parties;
(d)in even years, from 4.30 pm on Christmas Eve to 4.30 pm on Christmas Day; and
(e)in odd years, from 4.30 pm on Christmas Day to 4.30 pm on Boxing Day.
13.Orders for the children to spend time with the Applicant be suspended and the children spend time with the Respondent for special occasions as follows:
(a)in each alternate year commencing in 2017, from 4.30 pm on Holy Saturday to 4.30 pm on Easter Monday and in each intervening year commencing in 2018, from 4.30 pm on Holy Thursday to 4.30 pm on Holy Saturday;
(b)on Mother’s Day weekend, from 4.30 pm on the day before Mother’s Day to 4.30 pm on Mother’s Day;
(c)on the Respondent’s birthday for four (4) hours, at a time to be agreed between the parties;
(d)in even years, from 4.30 pm on Christmas Day to 4.30 pm on Boxing Day; and
(e)in odd years, from 4.30 pm on Christmas Eve to 4.30 pm on Christmas Day.
14.Subject to paragraph 15 below, all handovers of the children shall occur as follows:
(a)at the [X Road] car park at the commencement of the Applicant’s time with them; and
(b)at [Suburb B] BP service station at the conclusion of the Applicant’s time with them.
15.If the children have sport, a Special Sporting Event or an Optional Special Sporting Event during the Applicant’s time with them, the Applicant may choose to effect handover at the venue where the sport or Event is being held, as follows:
(a)the Applicant shall provide the Respondent with seven (7) days’ written notice;
(b)handover following an event shall occur immediately upon the conclusion of the event, notwithstanding subparagraph 5(b) of these orders; and
(c)handover before an event shall occur not less than 25 minutes prior to the commencement of the event, to enable the children to participate in team warm-up exercises, notwithstanding subparagraph 5(b) of these orders.
16.Each of the parties be at liberty to attend the children’s school assemblies, carnivals, sporting events and other events relating to the children.
17.The children be at liberty to communicate by telephone with the party with whom they are not then staying with at all reasonable times.
18.The party with whom the children are not staying be at liberty to communicate with the children on Tuesdays and Thursdays between 6.30 pm and 7.30 pm and the other party do all things reasonable to ensure that the children are available to speak to that parent at those times, including but not limited to returning any missed calls that the other party may have received from the absent party during that time.
19.Each party shall ensure the children are afforded privacy in their telephone communications with the other party.
20.On a without admission basis, each party refrain from making any visual or audio recording of the children’s telephone communications with the other party.
21.The parties do all things and sign all documents necessary to cause the children to maintain current valid Australian passports.
22.A party may travel with the children outside the Commonwealth of Australia during that party’s scheduled time with the children, provided no Special Sporting Events fall during that period.
23.A party who travels with the children in accordance with the preceding order must provide the other party with the following, within 21 days of the intended date of travel;
(a)a copy of the air tickets;
(b)the address(es) where the children will be staying; and
(c)a telephone contact number on which the children can be contacted during that period.
24.On a without admission as to need basis, each party shall refrain from using corporal punishment to discipline the children.
25.Each party shall inform the other as soon as possible in the event that either of the children sustain a serious injury or is seriously ill while in their care, including notice of any hospitalisation.
26.All outstanding applications and responses otherwise be and are hereby dismissed.
27.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
28.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
I certify that the preceding [105] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
31/03/2017
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