Brown and Kaule
[2017] FamCA 434
•22 June 2017
FAMILY COURT OF AUSTRALIA
| BROWN & KAULE | [2017] FamCA 434 |
| FAMILY LAW – CHILDREN – best interests – whether equal time with the parents is in the best interests of the child – where it is not in the best interests of the child to spend equal time with his parents – where order made for the child to live with the father and spend substantial and significant time with the mother – whether the presumption of equal shared responsibility is rebutted in relation to education – where the presumption is not rebutted – order for equal shared parental responsibility. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A) 60CC(3), 61B, 61C, 61B, 61DA(1), 61DA(4), 64B(2)(i), 65DAA, 65DAC Evidence Act 1995 (Cth) s 140 |
| Kaule & Brown [2015] FamCA 480 MRR v GR (2010) 240 CLR 461 Poisat & Poisat [2014] FamCAFC 128 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Brown |
| RESPONDENT: | Mr Kaule |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 4757 | of | 2014 |
| DATE DELIVERED: | 22 June 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 25, 26 & 27 October 2016 and 19 & 21 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dickson QC and Mr Matta |
| SOLICITOR FOR THE APPLICANT: | Mitchell Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Blackwood Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED BY THE COURT THAT
All previous parenting orders in relation to the child B born … 2013 (“the child”) be discharged.
The Father and the Mother have equal shared parental responsibility for the child.
IT IS ORDERED BY CONSENT THAT
The parties be and are hereby restrained from relocating the child's residence from the greater Melbourne Metropolitan Area without the written consent of the parties or court order.
Living arrangements
IT IS ORDERED BY THE COURT THAT
Failing agreement between the parties in writing:
the child live with the father.
Subject to the mother living in Melbourne, the child spend time with the mother as follows:
(a)From the date of these Orders:
(i)each alternate weekend from 9.00am Friday to 5.30pm Sunday; and
(ii)each Wednesday from 5.30pm to 5.30pm Thursday.
(b) Commencing Term 3 in 2017 during the Victorian gazetted school year:
(i)each alternate weekend from 9.00am Friday to the commencement of kindergarten/child care Monday (or 9.00am if the child is not in kindergarten/childcare); and
(ii)each Wednesday from 5.30pm until 5.30pm Thursday.
(c)Commencing Term 2 in 2019 during the Victorian gazetted school year:
(i)in Week One, from 5.30pm Thursday until the commencement of kindergarten/school on Monday (or 9.00am if the child is not in kindergarten/school); and
(ii)in Week Two, from 5.30pm Wednesday until 5.30pm Friday.
Holiday time
(d)From 9.00am on 13 July 2017 until 5.30pm on 17 July 2017.
(e)Commencing Term 3 in 2017:
(i)During the Victorian Gazetted School Term 1, 2 & 3 holiday periods
A.For six nights commencing from the conclusion of kindergarten/child care (or 5:30pm if the child is not in kindergarten/child care) on the last day of the Victorian gazetted school term until 5.30pm on the sixth day of the holiday period; and
B.For two nights commencing from 5.30pm on the last Friday of the holiday period until 5.30pm on the last Sunday of the holiday period.
(ii)During the Christmas/long summer school holiday periods
A.In 2017:
1. From 5.30pm on 26 December until 5.30pm on 31 December;
2. For six nights commencing from 5.30pm on 8 January and concluding at 5.30pm on 14 January; and
3. For six nights commencing from 5.30pm on 22 January and concluding at 5.30pm on 28 January.
B.In 2018:
1. From 5.30pm on 21 December until 5.30pm on 26 December;
2. For six nights commencing from 5.30pm on 31 December and concluding at 5.30pm on 6 January; and
3. For six nights commencing from 5.30pm on 14 January and concluding at 5.30pm on 20 January.
(f)Commencing Term 1 in 2019:
(i)During the Victorian Gazetted School Term 1, 2 & 3 holiday periods
A.In 2019:
1. For one week commencing at 5.30pm on the middle Friday of each school term holiday period and concluding 7 nights thereafter at 5.30pm; and
B.In 2020:
1. For one week commencing at the conclusion of school on the last day of the school term (or 5:30pm if the child is not in school) and concluding 7 nights thereafter at 5.30pm.
(ii)During the Christmas/long summer school holiday period
A.In 2019:
1. From 5.30pm on 26 December until 5.30pm on 31 December; and
2. For one week commencing at 5.30pm on 7 January and concluding 7 nights thereafter at 5.30pm and continuing on in a week about arrangement thereafter for the remainder of the holiday period SAVE AND EXCEPT THAT any time that the child would otherwise be spending with the mother pursuant to this Order shall conclude at 5.30pm on the last day of the holiday period.
B.In 2020:
1. From 5.30pm on 21 December until 5.30pm on 26 December; and
2. For one week commencing at 5.30pm on 31 December and concluding 7 nights thereafter at 5.30pm and continuing on in a week about arrangement thereafter for the remainder of the holiday period SAVE AND EXCEPT THAT any time that the child would otherwise be spending with the mother pursuant to this Order shall conclude at 5.30pm on the last day of the holiday period.
(g)Commencing Term 1 in 2021:
(i)During the Victorian Gazetted School Term 1, 2 & 3 holiday periods
A.In 2021 and each alternate year thereafter (“odd years”):
1. For the second half of the school term holiday periods, commencing at 5.30pm on the middle day of the holiday period and concluding at 5.30pm on the last day of the holiday period.
B.In 2022 and each alternate year thereafter (“even years”):
1. For the first half of the school term holiday periods, commencing at the conclusion of school on the last day of the school term (or 5.30pm if the child is not in school) and concluding at 5.30pm on the middle day of the holiday period.
(ii)During the Christmas/long summer school holiday period
A.In 2021 and each alternate year thereafter (“odd years”):
1. For the second half of the Christmas/long summer holiday period, with the mother’s time to commence at 5.30pm on the middle day of the holiday period and conclude at 5.30pm on the last day of the holiday period (such holiday period deemed to commence at 5.30pm on 21 December for the purposes of calculating the mother’s time pursuant to this Order).
B.In 2022 and each alternate year thereafter (“even years”):
1. For the first half of the Christmas/long summer holiday period, with the mother’s time to commence at 5.30pm on 21 December and conclude at 5.30pm on the middle day of the holiday period (such holiday period deemed to commence at 5.30pm on 21 December for the purposes of calculating the mother’s time pursuant to this Order).
(h)At all other times as agreed between the mother and father in writing.
Paragraphs 5(a), (b) and (c) hereof shall be suspended for all Victorian Gazetted school term holiday periods and the Christmas/long summer holiday periods and recommence after any school holiday period in the same sequence as if the school holiday period had not taken place.
Unavailability of either parent
IT IS ORDERED BY THE COURT THAT
In the event that either parent is unable or unavailable to personally care for the child for a period in excess of 48 hours, that parent must provide the other parent with at least 3 days' written notice (except in the event of an emergency in which case as much notice as is reasonably practicable must be given) and the other parent will have the first opportunity to care for the child provided that the other parent advises the unavailable parent within 1 day of receiving the notice (or as soon as practicable in the event of an emergency).
Kindergarten arrangements
IT IS ORDERED BY CONSENT THAT
The parties are to do all things necessary to enrol the child at and ensure he attends the VM kindergarten in 2017 and 2018 in the Monday, Wednesday, Friday program.
Communication
IT IS ORDERED BY THE COURT THAT
The parent with whom the child is not spending time will communicate with the child by Skype at 6.00pm for up to 30 minutes on the following days:
(a)Christmas Day;
(b)Easter Sunday;
(c)the child's birthday;
(d)The birthday of either parent;
(e)Mother's Day if the child is not otherwise spending time with the mother;
(f)Father's Day if the child is not otherwise spending time with the father; and
(g)Each Thursday and Sunday in periods where the child has not spent time with that parent for a period of 6 days.
The parent with whom the child is living or spending time is to initiate the call and both parties to do everything necessary to facilitate the child participating in the call.
Handover
IT IS ORDERED BY CONSENT THAT
For the purposes of handover:
(a)If the child is at child care, kindergarten or school, the party or nominee will collect the child at child care, kindergarten or school;
(b)If the child is not attending child care, kindergarten or school, the Mother or her nominee will collect the child from the Father's home at the start of the time that the child spends with his Mother and the Father or his nominee will collect the child from the Mother's home at the end of the time that the child spends with the Mother;
(c)Handover arrangements be otherwise agreed by the parties in writing.
Overseas and other travel
IT IS ORDERED BY CONSENT THAT
Before a parent takes the child outside of the greater Melbourne metropolitan area, that parent must advise the other parent in writing of:
(a)their intention to do so;
(b)the flight number, date and time of any flights departing from and returning to Melbourne; and
(c)the addresses at which the child will be saying when he is outside of Melbourne.
In relation to travel with the child outside the Commonwealth of Australia, the following provisions apply:
(a)Overseas travel will take place during the child's time with the travelling parent pursuant to these orders, unless otherwise agreed by the parties in writing.
(b)The travelling parent provides to the other parent:
(i)no less than 3 calendar months' notice in writing of the travelling parent's intention to take the child out of the Commonwealth of Australia including the country or countries to which the travelling parent intends to take the child and the approximate dates on which it is proposed the child will travel.
(ii)at least 28 days before the proposed departure date, the parent who is taking the child for an overseas holiday shall supply the following information to the other parent:
A.the dates of the proposed holiday;
B.a full itinerary of the trip;
C.flight itineraries; and
D.the address, email address and phone number of the accommodation.
(c)Neither the Mother nor the Father may take the child to any country which is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction without the prior written consent of the other parent.
(d)Except with the prior written consent of the other parent, the child is not to travel to a destination which is subject to one of the following categories of risk travel advices from the Commonwealth Department of Foreign Affairs and Travel:
(i)Reconsider your need to travel; and
(ii)Do not Travel.
In relation to the child’s passport:
(a)The parent who wishes to take the first overseas holiday with the child will be responsible for doing all things necessary to obtain a passport, visas and other documentation required for the child to travel overseas.
(b)The parties will sign all documents and do all things necessary to obtain or renew the child's passport within 7 days of receiving a request from the other party. The costs associated with the renewal of the child's passport will be shared equally by the parties.
(c)The costs associated with the issue of a passport for the child will be shared equally between both parties.
(d)Each party will release the child's passport to the other within 7 days of a request being made, subject to the requesting party's compliance with this paragraph.
IT IS ORDERED BY THE COURT THAT
(e)The father will hold the child’s passport except during periods that the mother travels with the child overseas in accordance with these orders.
(f)The father is to provide the mother with a certified copy of the child’s passport within 14 days of a written request by the mother.
IT IS ORDERED BY CONSENT THAT
With the consent of both parents, the child may participate in group overseas trips organised by educational, sporting or cultural institutions, for example, school, scouts, choirs and the like.
Other matters
IT IS ORDERED BY CONSENT THAT
Each party will keep the other informed as to his or her residential address, mobile telephone number and email address and advise the other party of any change to those details within 24 hours of such change.
Each party is at liberty to request from the Principal of any school, child care or kindergarten attended by the child, copies of any day care/school reports, newsletters, events notices and school photographs at his or her respective cost.
Each party is at liberty to attend all school/day care events, concerts, parent/teacher interviews, sporting and extracurricular competitions and events and any other school function ordinarily attended by parents.
Each party shall advise the other as soon as practicable of any serious injury or significant health concern for emergency medical or dental treatment concerning the child whilst the child is in that party's care.
IT IS ORDERED BY THE COURT THAT
Each parent must be named with contact details on any kindergarten/school enrolment form providing that they are the emergency contacts.
IT IS ORDERED BY CONSENT THAT
The Father and Mother be and are hereby restrained by themselves, their servants and /or agents from:
(a)denigrating, criticising and/or otherwise demeaning the other party or any other member of that party's family in the sight and/or hearing and/or the presence of the child; and
(b)discussing these proceedings with or in the presence or hearing of the child.
Each party is at liberty to provide the kindergarten, child care facility or school attended by the child from time to time with a copy of those orders.
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 Brown & Kaule 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 MELBOURNE |
FILE NUMBER: MLC 4757 of 2014
| Ms Brown |
Applicant
And
| Mr Kaule |
Respondent
REASONS FOR JUDGMENT
Introduction
Three year old B (the child ) born in 2013, has been living in Melbourne in the primary care of his father from the age of about 18 months when his mother, who is a medical professional, moved to Brisbane to undertake training after final parenting orders were made on 29 May 2015 following a trial in February 2015. The parents have equal shared parental responsibility for the child.
At the time of this trial, the mother planned to return to Melbourne to live in January 2017 and brought an application to increase the time that the child spends with her on a gradual basis so that he is spending equal time with each parent on a week about basis from 26 January 2020 by which time he will be six years old, turning seven on 19 December 2020. The mother has employment in Melbourne commencing June 2017 but may be unemployed for the first half of the year. The mother’s contract is for 12 months but may be extended. The trial was conducted on the basis that the mother will continue to live in Melbourne.
The father opposes the mother’s proposals for increasing the spend time arrangements and makes his own proposals which do not provide for equal shared care.
An Independent Children’s Lawyer was appointed to independently represent the interests of the child.
The mother is aged 38 and the father is aged 40 and is a medical professional who works 3 days per week. Historically, final parenting orders were made by Macmillan J after a 5 day trial on 29 May 2015 which restrained the mother from relocating the residence of the child from the Greater Melbourne Metropolitan area without the written consent of the father or court order. The detailed reasons for judgment of Macmillan J delivered on 29 May 2015 set out the background.[1]
[1] [2015] FamCA 480
The parties were married in 2013 and the child was born later that year. Less than six months after the birth of the child the parents had separated under the one roof and were involved in litigation in this Court.
During the five day trial before the final parenting orders were made in 2015, the mother had informed the Court that should she be unsuccessful in her application to relocate to Brisbane with the child that she would remain in Melbourne with the child. On 30 June 2015 the mother relocated to Brisbane leaving the child in the full time care of the father.
The child has been spending time with the mother in Melbourne under interim consent orders made by Macmillan J in July 2015 and further interim orders made by Bennett J in September 2015.
The parties ultimately reached agreement during the trial about the enrolment of the child in three-year-old kindergarten commencing in 2017.
The regime proposed by the mother increases the spend time arrangements as follows:
· from the current arrangement of 4 nights per fortnight with only 2 consecutive nights each alternate weekend to 4 nights per fortnight but with 3 consecutive nights each alternate weekend from 1 July 2017 to 28 January 2018;
· to 5 nights per fortnight from 29 January 2018 until 27 January 2019;
· to 6 nights per fortnight from 28 January 2019 until 26 January 2020 being two nights in week one and four nights in weeks two; and
· equal time on a week about basis from 5:30 pm Sunday, 26 January 2020.
The father opposes the mother’s proposals for increasing the time that the child spends with her in Melbourne and instead proposes a reduction in time from the interim consent orders (to which he maintained that he had mistakenly agreed) to 3 nights per fortnight from 1 January 2017 to 31 December 2017. From 1 January 2018 onwards, he proposes 5 nights per fortnight, being each Wednesday night and three nights each alternate weekend, without any increase in time thereafter.
The father seeks sole parental responsibility for the child’s enrolment in kindergarten and school but proposes consultation with the mother. The mother seeks that there be equal shared parental responsibility for the child in accordance with the historical orders made. The parties cannot agree on the arrangements for the child during holiday time and on special occasions.
The Independent Children’s Lawyer proposes that the child live with the father and spend time with the mother on the basis of interim orders agreed between the parties of 4 nights per fortnight until the commencement of term 3 in 2017 when the time should be increased to 5 nights per fortnight until the commencement of term 2 in 2019 when the child should spend 6 nights per fortnight with the mother, being 4 nights in week one and two nights in week two.
The proposals of each of the parents and Independent Children’s Lawyer for holiday time are outlined in detail later in these reasons and were contentious.
The parents have agreed that both parties be restrained from relocating the residence of the child from the Greater Melbourne Metropolitan Area without the written consent of the other party or court order. Other matters were agreed at the conclusion of the trial and noted by the parties and the Independent Children’s Lawyer in a minute of final orders sought.
There were no submissions made addressing the principle in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) and each of the parties and the Independent Children’s Lawyer appeared to accept that there was a change in the circumstances which required the Court to consider afresh how the welfare of the child should best be served.
I am satisfied, that because the mother’s move to Brisbane was not contemplated when the final parenting orders were made, that the mother’s subsequent move to Brisbane and imminent return to Melbourne is a change in circumstances which warrants consideration of the parenting issues afresh in the best interests of the child.[2]
[2]Poisat & Poisat [2014] FamCAFC 128, [8]-[15], [43]
Background
The career and employment issues for the mother in Melbourne are detailed in the reasons for judgment of Macmillan J and need not be repeated here.
The maternal extended family live in Brisbane and the paternal extended family live in Melbourne.
On 2 July 2015, the mother filed an Application in a Case, seeking orders for the child to spend time with her.
On 9 July 2015, Interim Consent Orders were made by Macmillan J for the child to live with the father and spend time with the mother on various dates in July and August 2015 (such periods of time ranging from 5½ hours on one occasion to up to a six night block period on another occasion).
On 10 September 2015, Bennett J made interim orders for the child to live with the father and spend time with the mother up to 3 nights per fortnight as follows:
5.… (a)In Melbourne, from 5.30 pm Friday until 5.30 pm Sunday commencing on 28 August 2015 and repeating every 4 weeks thereafter.
(b) In Melbourne, from 9 am Friday until 5.30 pm Sunday commencing on 11 September 2015 and repeating every 4 weeks thereafter.
(c) For the purposes of paragraphs 5(a) and (b), if the mother gives the father 7 days written notice of her ability to remain in Melbourne on the Monday immediately following time pursuant to paragraphs 5(a) and/or (b), [the child’s] time with the mother will extend to her departure or 5.30 pm Monday, whichever is earlier.
Before the trial had commenced, interim orders in relation to holiday time had been in place since 10 September 2015. The interim orders made by Bennett J provided as follows:
IT IS ORDERED UNTIL FURTHER ORDER
…
BY THE COURT:
5(e)(i)the mother will spend holiday time with [the child] for a period up to 7 consecutive days from 6.30 pm on the first day until 6.30 pm on the eight day (holiday time) up to 4 times a year save that if the dates proposed by the mother conflict with any prior arrangement, the father shall advise the mother within 7 days and she shall then nominate another period to accommodate the arrangement which shall be binding on the parties. [The child] is to spend at least 2 consecutive nights in the care of his father in Melbourne between a block of holiday time and any other time [the child] is spending with the mother pursuant to these orders; and
BY CONSENT:
(ii) for the purposes of paragraph 5(e)(i), the parties agree one of the periods of holiday time with the Mother will be the period from 6.30 pm on 27 December 2015 until 6.30 pm on 3 January in 2016, pending final order.
On the evidence of the father, the child has spent blocks of time of seven days with the mother in October 2015, December 2015, April 2016 and July 2016 when she took the child to Brisbane. The child has also spent eight days with the mother in February 2016 when the father travelled to Asia.[3] On the evidence of the mother the child has spent time with her on six, week-long blocks commencing on 4 August 2015, 14 October 2015, 27 December 2015, 20 February 2016, 13 April 2016 and 5 July 2016. On the evidence of both parties the child has spent substantial and significant blocks of time with the mother.
Issues and proposals
[3] Father’s affidavit filed 11 August 2016, par 45.
Interim consent orders
The trial was part heard between 27 October 2016 and 19 December 2016 when it became apparent on 27 October 2016 that there was insufficient time to complete the trial in the Court’s schedule. The Independent Children’s Lawyer also proposed that the parties have mediation before the trial resumed and this was followed up by the parties without success. On the morning of 27 October 2016, detailed interim orders were negotiated outside court between counsel and were agreed and signed by the parties and the Independent Children’s Lawyer. The interim orders were made by consent that day and made provision for the spend time arrangements during the summer holidays which were imminent and from 30 January 2017 until further order (pending final judgment). These orders amongst other things provided for the child to live with the father and spend time with the mother in Melbourne commencing 1 February 2017 for one overnight each Wednesday and for 2 overnights from Friday to Sunday each fortnight. These orders effectively provided for the child to spend time with the mother in Melbourne for 4 nights per fortnight commencing 1 February 2017.
The interim consent orders amongst other things, also provided for the child to spend time with the mother under a heading ‘Holiday time’:
…
(vi)From 9am Thursday 6 April 2017 to 5:30 pm Monday 10 April 2017.
(vii)From 9am Thursday 18 May 2017 to 5:30 pm Monday 22 May 2017
(viii)From 9am Thursday 13 July 2017 to 5:30 pm Monday 17 July 2017.
The interim consent orders also provided that in the event that the father is unable or unavailable to personally care for the child for a period in excess of 48 hours that the father will provide the mother with not less than 14 days’ written notice (except in the event of an emergency) and the mother will have the first opportunity to care for the child:
(A)If the period is greater than 48 hours and less than 96 hours: in Melbourne;
(B)For a period in excess of 96 hours: at any location of the mothers choosing;
providing that the mother advises the father of her intention to do so within 2 working days of receiving the notice.
Despite interim orders having been made by consent between the parties and settled in a typed and hand written minute of proposed orders with counsel on 27 October 2016 and later engrossed, the father on 19 December 2016 indicated through his counsel that the orders did not properly reflect his intentions concerning the arrangements from April 2017. Because these interim orders had been settled through negotiations between the parties with their respective counsel and instructing solicitors together with the Independent Children’s Lawyer and consigned to writing on the basis that they would apply until final judgment was delivered and further, the orders made provision for the spend time arrangements until July 2017 which were not inconsistent with the recommendations of the family consultant, I considered it appropriate to maintain those orders pending the delivery of final judgment.
When the trial resumed in December 2016, the final proposals of both parties and the Independent Children’s Lawyer were refined in a single written document, reflecting the proposals in different colours, on day 5 of the trial. The main issues between the parties were ultimately the progression in time that the child should spend with the mother after her return to Melbourne in January 2017, holiday arrangements and parental responsibility concerning the enrolment of the child in kindergarten/school.
Parental responsibility
Parental responsibility in relation to the child’s enrolment in kindergarten/school was also in issue. The mother and the Independent Children’s Lawyer proposed that the parents have equal shared parental responsibility for the child.
The father seeks sole parental responsibility concerning the child’s enrolment in kindergarten and school. He proposes that before making a decision in exercise of his sole parental responsibility, that he consult the mother and seek her views. In the alternative, he seeks that he be at liberty to enrol the child in a bilingual primary school to commence in 2019. He also proposes an order that the mother shall ensure that the child continues to attend his usual child care, kindergarten or school in Melbourne during the Victorian gazetted school terms during any time that the child spends with the mother, except if the child is ill or if otherwise agreed by the parties in writing.
Final proposals for the living and spend time arrangements for the child
The Independent Children’s Lawyer and father both proposed that the child live with the father.
The mother proposed that the child, subject to orders providing for holiday time, live with the mother and father as follows:
(a)From 1 July 2017 to Sunday 28 January 2018:
(i)in week 1, with the mother from 5:30 pm Wednesday until 5:30 pm Thursday;
(ii)in week 2, with the mother from 5:30 pm Friday until 5:30 pm Monday; and
(iii)with the father at all other times.
(b)From Monday 29 January 2018 to Sunday 27 January 2019
(i)in week 1, with the mother from 5:30 pm Wednesday until 5:30 pm Friday;
(ii)in week 2, with the mother from 5:30 pm Friday until 5:30 pm Monday; and
(iii)with the father at all other times.
(c)From Monday 28 January 2019 to Sunday, 26 January 2020:
(i)in week 1, with the mother from 5:30 pm Wednesday until 5:30 pm Friday;
(ii)in week 2, with the mother from 5:30 pm Thursday until 5:30 pm Monday; and
(iii)with the father at all other times.
(d)From 5:30 pm Sunday 26 January 2020 on a week about basis.
The father proposed the following regime for the child spending time with the mother:
Subject to the orders providing for holiday time, [the child] spend time with the mother and communicate with the mother as follows:
(a)From 1 January 2017 to 31 December 2017
(i)Each alternate weekend from after childcare/kindergarten Friday (or 5:30 pm Friday if Friday is not a childcare/kindergarten/school day) to 5:30 pm Sunday.
(ii)Provided that the mother is in Melbourne, from 5:30 pm Wednesday until after childcare/kindergarten to 5:30 pm on Thursday, each alternate week; starting on the Wednesday following the weekend [the child] spends with the mother…
(b)From 1 January 2018 and thereafter:
(i)Each alternate weekend from after childcare /kindergarten/school on Friday (or 5:30 pm Friday if Friday is not a childcare/kindergarten day; to before childcare/kindergarten/school on Monday (or 5:30 pm if Monday is not a childcare/kindergarten/school day).
(ii)Provided the mother is in Melbourne, from after childcare/kindergarten/school Wednesday to before childcare/kindergarten/school Thursday (or 5:30 pm if Thursday is not a childcare/kindergarten/school day),
(c)As otherwise agreed between the parties in writing.
The Independent Children’s Lawyer did not support the mother or father’s progressive regime for the child spending time with the mother but proposed the following regime:
From Monday, 30 January 2017 [the child] spend time with the mother
(a)each alternate weekend from 9 AM Friday to 5:30 PM Sunday and
(b)each Wednesday from 5:30 PM to 5:30 PM Thursday.
Commencing term 3 in 2017, [the child] spend time with the mother;
(a)each alternate weekend from 9 AM Friday to the commencement of kindergarten or 9 AM Monday; and
(b)each Wednesday overnight from 5:30 PM until 5:30 PM Thursday
Commencing term 2 in 2019, [the child] spend time with the mother;
(a)in week one from Thursday at 5:30 PM to Monday at the commencement of kindergarten or 9 AM; and
(b)in week two from Wednesday at 5:30 PM to Friday at 5:30 PM.
Holiday time
Christmas
The parties asserted that they required detailed orders and their proposals reflected the reason why their communication has been historically difficult. The following are the proposals of each party in relation to Christmas.
The mother proposes that the child spends time with each party as follows:
(a)Commencing with the Father in 2017 and alternating between each party each year thereafter from 5.30 pm 21 December until 5.30 pm on 26 December.
(b)Commencing with the Mother in 2017 and alternating between each party each year thereafter from 5.30 pm 26 December until 5.30 pm on 31 December.
The drafting of the father’s proposals in relation to Christmas, was confusing referring to incorrect paragraph numbers in the proposal. So doing the best I can the proposals of the father for Christmas are that the child spends time with each party as follows:
(a)With the mother:
(i)In 2016 and 2018, from 5.30 pm Christmas Eve until 5.30 pm on 30 December.
(ii)In 2020 and each alternate year thereafter, from 5.30 pm Christmas Eve until 5.30 pm Boxing Day (to continue into the child’s holiday time with the mother pursuant to the proposal that in December 2020 the child spend time with the mother from 5.30 pm on 26 December until 5.30 pm on 5 January and from 5.30 pm on the penultimate Friday of the Victorian gazetted school summer holidays until 5.30pm on the Sunday before Term 1 commences).
(b)With the father in 2017 and each alternate year thereafter, with the father from 5.30 pm Christmas Eve until 5.30 pm Boxing Day.
The Independent Children’s Lawyer proposes:
The arrangements for Christmas in each alternate year should provide for a block of time to allow the mother to travel with [the child] to spend time with her family in Queensland, with the father having such block of time in the alternate years.
Other holidays
Concerning other holiday time, the drafting of the proposals of both parents in relation to holiday time were confusing referring to incorrect paragraph numbers in the document provided to the Court. So doing the best I can I have set out below the respective proposals of both the mother and father.
The mother’s proposal is as follows:
·For Easter 2018 the child spend time with the mother from 5.30pm Thursday 29 March until 5.30pm Thursday 5 April 2018
·From 30 January 2017, or the commencement of these orders, until 28 January 2018, the child is to spend holiday time with each party on up to 3 occasions with each party for up to 5 consecutive nights from 9.00 am on the first day until 5.30 pm on the last day of each period, subject to:
(a)Each party provide to the other no less than 2 months’ written notice of their intention to exercise holiday time on the nominated dates;
(b)The nominating party must not nominate a period that will result in the child being away from the other party for more than 6 consecutive nights.
·From 29 January 2018 until 27 January 2019, the child is to spend holiday time with each party on up to 3 occasions with each party for up to 7 consecutive nights from 9.00 am on the first fay until 5.30 pm on the last day of each period subject to:
(a)Each party provide to the other no less than 2 months’ written notice of their intention to exercise holiday time on the nominated dates;
(b)The nominating party must not nominate a period that will result in the child being away from the other party for more than 8 consecutive nights.
·Commencing in the 2019 school year, the child is to spend holiday time with each party as agreed and failing agreement for half of the Term 1, 2 and 3 school holiday period as set by the child’s school, with the Father to have the first half of the holiday periods in 2019 and the Mother the second half and alternating each year thereafter.
·In the 2019 long summer holidays and each long summer holiday thereafter, the child is to spend half of the remaining school holiday period (“the remaining holiday period”) after the operation of the order relating to Christmas as agreed and failing agreement as follows:
(a)For the first half of the remaining holiday period, with the parent in whose care the child will already be pursuant to the order whereby the child spends time with the parent from 26 December to 31 December ; and
(b)For the second half of the holiday period, with the parent in whose care the child will be in on Christmas Day pursuant to the order whereby the child spends time with the parent from 21 December to 26 December
The father’s proposal is as follows:
· the child will spend holiday time with the mother as follows:
(a)Upon providing 45 days’ notice to the father, the mother will spend block holiday time with [the child] during the Victorian gazetted school holiday periods as follows:
(i)From 1 August 2017 to 18 December 2017 (when the child is 3 years old), the time provided by the paragraph relating to the mother spending time with the child each alternate weekend from after childcare/kindergarten/school on a Friday (or 5:30pm Friday if Friday is not a childcare/kindergarten/school day) until before childcare/kindergarten/school Monday (or 5:30pm if Monday is not a childcare/kindergarten/school day) will extend on one occasion at the mother’s election so that the child returns to the father on Monday that week at 6.30 pm.
(ii)When [the child] is 4 years old, the time provided by the paragraph relating to the mother spending time with the child each alternate weekend from after childcare/kindergarten/school on a Friday (or 5:30pm Friday if Friday is not a childcare/kindergarten/school day) until before childcare/kindergarten/school Monday (or 5:30pm if Monday is not a childcare/kindergarten/school day will extend on 4 occasions at the mothers election so that the child returns to the father on Tuesday that week at 6.30 pm (and the mother will not spend time with [the child] on that Wednesday night)
(iii)When the child is 5 years old, the time provided by the paragraph relating to the mother spending time with the child each alternate weekend from after childcare/kindergarten/school on a Friday (or 5:30pm Friday if Friday is not a childcare/kindergarten/school day) until before childcare/kindergarten/school Monday (or 5:30pm if Monday is not a childcare/kindergarten/school day) will extend on 4 occasions at the mothers election so that the child returns to the father on Wednesday that week at 6.30 pm (and the mother will not spend time with [the child] on that Wednesday night). Time will not to abut [sic] the mother’s Christmas block time with the child in 2018.
(iv)From 19 December 2019 (when [the child] is 6) to the start of the Victorian gazetted school year in 2020, the time provided by the paragraph relating to the mother spending time with the child each alternate weekend from after childcare/kindergarten/school on a Friday (or 5:30pm Friday if Friday is not a childcare/kindergarten/school day) until before childcare/kindergarten/school Monday (or 5:30pm if Monday is not a childcare/kindergarten/school day), will extend on one occasions at the mothers election so that [the child] returns to the father on Thursday that week at 6.30 pm.
(b)From the start of Term 1 of the Victorian gazetted school year in 2020, and thereafter, for the first half of the Term 1, 2 and 3 Victorian gazetted school holidays commencing at 5.30 pm on the first day of each holiday period (which is usually a Friday) and concluding at 5.30 pm on the middle day of the holiday (which is usually a Saturday).
(c)Commencing from December 2020, during each Victorian gazetted summer school holiday:
(i)From 5.30 pm 26 December until 5.30 pm 5 January,
(ii)From 5.30 pm on the penultimate Friday of the Victorian gazetted school summer holidays until 5.30 pm on the Sunday before Term 1 commences.
· the child will spend holiday time with the father as follows:
(a)From 1 January 2017 to the start of Term 1 in the 2020 Victorian gazetted school year (when [the child] commences Grade 1), the child’s time with the mother will suspend on 4 occasions each calendar year at the father’s election.
(b)In 2020 (when [the child] commences Grade 1) and each year thereafter, during the second half of the Term 1, 2 and 3 Victorian gazetted school holidays, commencing at 5.30pm on the middle day of the holiday (which is usually a Saturday) and ending at the start of the next school term.
(c)Commencing from December 2020, during the Victorian gazetted summer school holiday
(i)From 3 pm on the last day of Term 4 until 5:30 pm on 24 December,
(ii)From 5:30 pm on 5 January to 5:30 pm on the penultimate Friday of the Victorian gazetted school summer holidays,
(iii)From 5:30 pm on the Sunday before Term1operates.
· For the purpose of determining the pattern of [the child’s] care arrangements pursuant to the father’s proposals for the spend time arrangements with the mother, the cycle of the child’s time with the parties shall be suspended during holiday time taken by either party and recommenced thereafter as if there has been no intervening holiday time.
The Independent Children’s Lawyer proposes:
· Commencing Term 1 2017, during term kindergarten/school holiday periods for a break of two weeks (16 days/nights) six nights with the mother, eight nights with the father, two nights with the mother then return to the usual term arrangements; and
· When the child commences school, the Independent Children’s Lawyer proposes a week about arrangement during all school holidays for the first two years of school and afterwards a half holiday arrangement including for summer holidays.
Schooling and kindergarten arrangements
The Independent Children’s Lawyer, mother and father agreed that the mother and father are to do all things necessary to enrol the child at and ensure he attends the VM kindergarten in 2017 and 2018 in the Monday, Wednesday and Friday program.
The mother proposed that the child attend a primary and high school as agreed by the mother and father.
As outlined above, notwithstanding the agreement reached about the VM kindergarten, the father seeks sole parental responsibility concerning the child’s enrolment in kindergarten and school. He proposes that before making a decision in exercise of his sole parental responsibility that he consult the mother and seek her views. In the alternative, he seeks that he be at liberty to enrol the child in a bilingual primary school to commence in 2019. The father also proposes an order that the mother shall ensure that the child continues to attend his usual child care, kindergarten or school in Melbourne during the Victorian gazetted school terms during any time that the child spends with the mother, except if the child is ill or if otherwise agreed by the parties in writing. This is despite the father having previously agreed to interim consent orders on 27 October 2016 that provided that until 21 July 2017, the mother is not obliged to take the child to the VM kindergarten on Fridays.[4]
[4] Consent orders made on 27 October 2016, Order 10.
Other contested proposals
The mother, supported by the Independent Children’s Lawyer, proposes that in the event that either parent is unable or unavailable to personally care for the child for a period in excess of 48 hours, that parent must provide the other parent with at least 3 days' written notice (except in the event of an emergency in which case as much notice as is practicable must be given) and the other parent will have the first opportunity to care for the child provided that the other parent advises the unavailable parent within 1 day of receiving the notice (or as soon as practicable in the event of an emergency). The making of this order is opposed by the father.
Communication
The parties advanced competing proposals in relation to communication with the child when the child is not in the care of the other parent.
The mother proposes that the parent without the child in his or her care, will communicate with the child by Skype at 6 pm on:
·Christmas Day;
·Easter Sunday;
·the child's birthday;
·The birthday of the parent in whose care the child is not in;
·Mother's Day if the child is not in the care of the Mother;
·Father's Day if the child is not in the care of the Father;
·Each Thursday and Sunday in periods where the child will be a way from that parent for periods of 6 days or longer.
The mother also proposes that the parent who has the care of the child is to initiate the call and both parties do everything necessary to facilitate the child in participating in the call.
The father proposes communication by Skype as follows:
·In 2017 and 2018 at 6 pm each Thursday when the child is not in the care of the mother;
·The father or his nominee will initiate the Skype call to the mother and the father will do everything necessary to facilitate the child participating in the call with his mother;
·The Skype call will be no more than 20 minutes long.
The Independent Children’s Lawyer proposes there be set times for Skype communication during the week and holiday periods with each parent as appropriate and that telephone communication or Skype communication is to occur at least twice in any seven-day period where the child is away from the other parent.
Handover
The arrangements for handover (changeover) were agreed as follows:
(a)If the child is at child care, kindergarten or school, the party or nominee will collect the child at child care, kindergarten or school;
(b)if the child is not at or going to child care, kindergarten or school, the mother or her nominee will collect the child from the father's home at the start of the time that the child spends with his mother and his father or his nominee will collect the child from the mother's home at the end of the time that the child spends with the mother;
(c)Handover arrangements may otherwise be agreed to by the parties in writing.
Travel and passport
The mother, father and Independent Children’s Lawyer agreed that before either the mother or the father takes the child outside of greater Melbourne metropolitan area, that party must advise the other in writing of:
(a)Their intention to do so;
(b)The flight number, date and time of any flights out of and returning to Melbourne; and
(c)The addresses at which the child will be saying when he is outside of Melbourne.
The father proposes an order that the mother shall not travel with the child outside Melbourne:
(a)From 1 January 2017 to 31 December 2019, more than 4 times each calendar year.
(b)In 2020 and each year thereafter, not more than 5 times each calendar year.
The Independent Children’s Lawyer proposes that the mother should be permitted to travel to Brisbane with the child during school term holiday periods but that interstate travel be restricted to those periods.
In relation to overseas travel the mother, father and Independent Children’s Lawyer agreed on the following proposal:
(a)Overseas travel will take place during the child's time with the travelling parent pursuant to these orders, unless otherwise agreed by the parties in writing;
(b)The travelling party provides to the other party:
(i)no less than 3 calendar months' notice in writing of the travelling party's intention to take the child out of the Commonwealth of Australia including the country or countries to which the travelling party intends to take the child and the approximate dates on which it is proposed the child will travel;
(ii)at least 28 days before the proposed departure date, the parent who is taking the child for an overseas holiday shall supply the following information to the other parent:
·The dates of the proposed holiday,
·A full itinerary of the trip,
·Flight itineraries,
·The address, email address and phone number of the accommodation;
(d)Neither the mother nor the father may take the child to any country which is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction without the prior written consent of the other party;
(e)Except with the prior written consent of the other parent, the child is not to travel to a destination which is subject to one of the following categories of risk travel advises from the Commonwealth Department of Foreign Affairs and Travel:
(i) Reconsider your need to travel; and
(ii) Do not travel.
The Independent Children’s Lawyer agrees with the inclusion of the proposal preventing the child travelling to countries which are not a signatory to the Hague Convention, but proposes a condition that “consent not be unreasonably withheld where the proposal is to take the child to a local frequented country by Australians, such as Indonesia (Bali).”
The Independent Children’s Lawyer proposes that the child not be taken overseas by either parent until 2020.
The mother proposed an additional order that provided:
The travelling party ensure that [the child] is available for Skype communications at the regular intervals required by [the orders in relation to Skype communication] but at reasonable times having regard to the time zones of the child and the parent who does not have [the child] in his or her care.
The mother, father and the Independent Children’s Lawyer agreed with the proposal that with the consent of both parents, the child may participate in group overseas trips organised by educational, sporting, or cultural institutions for example school, scouts, choir and the like.
In relation to the child’s passport the mother, father and Independent Children’s Lawyer were in agreement with the following:
·The parent who wishes to take the first overseas holiday with the child will be responsible for doing all things necessary to obtain a passport, visas and other documentation required for the child to travel overseas;
·The parties will sign all documents and do all things necessary to obtain or renew the child's passport within 7 days of receiving a request from the other party. The costs associated with the renewal of the child's passport will be shared equally by the parties;
·The costs associated with the issue of a passport for the child will be shared equally between both parties;
·Each party will release the child's passport to the other within 7 days of a request being made, subject to the requesting party's compliance with this paragraph.
The mother proposes that the party who holds the child’s passport and birth certificate is to provide a certified copy or copies within 14 days of a written request from the other party.
The father proposes that an order be made that he hold the child’s passport except during periods that the mother takes the child overseas in accordance with the orders.
The mother proposes orders in similar terms to the final orders made in 2015, that at the conclusion of any travel, the child’s passport is to remain in the possession of the travelling party until such time as it is requested by the other party pursuant to the agreed joint proposals.
Others matters
The Independent Children’s Lawyer proposes that the mother and father attend upon a family therapist (such as Ms LS, Mr CE, FT Group) for the purposes of assisting them with compliance with orders and with their communication as parents, with the parties to share the costs equally.
The mother, father and Independent Children’s Lawyer were also in agreement with the following proposal:
·Each party will keep the other informed as to his or her residential address, mobile telephone number and email address and advise the other party of any change to those details within 24 hours of such change;
·Each party is at liberty to request from the Principal of any school, child care or kindergarten attended by the child, copies of any day care / school reports, newsletters, events notices and school photographs at his or her respective cost;
·Each party is at liberty to attend all school/day care events, concerts, parent/teacher interviews, sporting and extracurricular competitions and events and any other school function ordinarily attended by parents.
·Each party shall advise the other as soon as practicable of any serious injury or significant health concern for emergency medical or dental treatment concerning the child whilst the child is in that party's care;
·The father and mother be and are hereby restrained by themselves, their servants and /or agents from:
oDenigrating, criticising and/or otherwise demeaning the other party or any other member of that party's family in the sight and/or hearing and/or the presence of the child; and
oDiscussing these proceedings with or in the presence or hearing of the child;
·Each party is at liberty to provide the kindergarten, child care facility or school attended by the child from time to time with a copy of those orders.
The Independent Children’s Lawyer seeks an order that both the mother and father be named with contact details on any kindergarten/school enrolment form providing that they are the emergency contacts.
Evidence
The documents relied upon by each party are listed in Annexure A. A number of exhibits were tendered by each party. I have read all of the affidavit material. I have listened to all of the oral evidence and submissions. I have considered the exhibits. It should not be assumed that because a particular piece of evidence is not referred to in these reasons that I have not considered it. The affidavit evidence of the parties also canvassed issues which were subsequently resolved.
Each parent and the family consultant were cross-examined. The expertise of the family consultant was not challenged.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[5]
[5] Evidence Act 1995 (Cth) s 140.
Evidence of the mother
In her affidavit filed 25 July 2016, regarding her employment, the mother deposed that she is a medical professional having worked for over 10 years. She deposed to currently undertaking a three year training program following which she will qualify as a specialist. She explains that she has now completed one year of training in Brisbane and that this was the only placement available to her at the time. She deposed that by January 2017 she will have 18 months left of the program and that she is returning to Melbourne permanently regardless of employment outcomes. She also deposed that in the unlikely event that she had not obtained a training position by January 2018 that she would undertake general work in Melbourne.
In the same affidavit the mother deposes to the father insisting on strict and literal adherence to orders or his right as a primary parent to make decisions on parental matters.
In a later affidavit filed 22 August 2016 the mother deposes to having been offered and accepting a 12 month position in Melbourne commencing August 2017. Counsel for the mother explained that this position was to begin in June 2017.
The mother in her affidavit material cited examples of the communication difficulties between the parents and their inability to reach agreement about many issues. She gives examples of the father’s inflexibility by insisting that the child be taken to activities such as junior activity class when the child was in her care rather than spending time with her because the father regarded these activities as part of the child’s routine. She maintained that the child was exhausted and tired when she took him to junior activity class and upset because the father had failed to communicate to her the need to bring a particular toy.[6]
[6] Mother’s affidavit filed 22 August 2016, par 36
The mother complains about the father insisting on his delegate caring for the child at times when he is unavailable to care for the child rather than allowing the child to spend time with her. By way of example, she referred to a weekend when the father was unavailable to care for the child and she requested to spend time with the child and her request was refused.[7]
[7] Ibid, par 34
The mother also complains about the father’s decision to speak to the child solely in another language after separation. She deposes to being supportive of this after separation because the child was in her primary care. However, she deposes to a number of difficulties emerging in communicating with the child which she asserts have arisen since her relocation. She attributes this to the father as his primary carer continuing to speak to the child solely in another language. The mother asserts that the child’s English development is delayed as a result. The mother argues that an increase in the time that she spends with the child will assist in improving his English language skills.
The mother in her affidavit material cited examples in April 2016 when the father reported that the child was unsettled but failed to respond to her request for more information.[8]
[8] Ibid, par 37
It was the mother’s evidence that generally when the child spent time with her for longer periods he was more settled. She maintained that she had not seen the distress reported by the father in his affidavit material except on the occasions when the child was returned to him after spending shorter periods of time with her. She maintained that she proposed to reside permanently in Melbourne and that her sister had purchased a property in a suburb which was more convenient to the father’s home which might overcome any concerns about travel for the child between the respective homes of the parents.
The mother stated that she is committed to living in Melbourne because that is where her child lives. She acknowledged that she has property in Brisbane and the Northern Territory. She stated that she proposes to purchase her own property in Melbourne when she has a job. The mother described the property her sister purchased as a first floor two-bedroom unit which is located about 3 km from the husband’s residence. She explained that her sister assisted her by purchasing this unit and that it is available indefinitely.
The mother deposes that she has the support of some friends in Melbourne and various networks and interests which she proposes to re-establish. She deposes to taking great comfort from the fact that her sister and her children now live in AB Town and that she proposes to spend time with them and to take the children camping.
The mother confirmed that the first that she heard about the distress of the child was in the affidavit of the father despite extensive email correspondence between the parents about many matters.
In response to questions about matters with which she disagreed in the report of the family consultant, she stated that the report is “not really about the child” but just children in general terms. She indicated that her observations of the child were not appropriately reflected in the report and do not appear to have been considered. She expanded on this to explain that she had not emphasised clearly enough to the family consultant that the only issues at changeover occurred when the child was returned to the father and not the other way round.
She gave the example of the child being very settled after spending seven days with her in Brisbane and returning to the father very happily in comparison to other occasions when changeover had occurred after the child had spent a shorter period of time with her. She reiterated that the difficulty only arose for the child in separation from her, rather than from the father, at times when the child had only spent short periods of time with her.
She pointed out that the family consultant had only seen the child for about one hour in an artificial setting and that her own observations of the child were that he was more settled at changeover after spending a block period of time with her. When cross examined about the evidence of the family consultant that “the trilogy of consistency, stability and predictability is all-important” for the child the mother agreed. She did not dispute in general, that equal care of children of a tender age is strongly contraindicated. However she maintained that the family consultant had not considered the child’s particular circumstances.
In response to the proposition that equal care does not “work well” for children under six or seven, the mother conceded that she sought equal shared care from about the time the child is five. However she stated that it is different in this case because she was the primary carer in the past and that spending time with her does not erode the father’s time or detract from his relationship with the child because “more involvement with each of us will benefit the child from what I have observed”.
The mother denied that she had “drawn out” changeovers causing them to be more emotional for the child. She emphasised that changeovers had been brief and that they have improved in recent times.
The mother also complained that an example of the inflexibility of the father was the occasion of a family event in Sydney whereby the mother sought to take the child to Sydney during a weekend that the child was in her care to attend her uncle’s 80th birthday celebration and a family reunion but the father refused her permission to travel with the child.[9]
[9] Mother’s affidavit filed 25 July 2016, par 73; Mother’s affidavit filed 22 August 2016, par 101.
Evidence of the father
The father’s proposals in his affidavit material were not exactly the same as the proposals he made at the conclusion of the trial. The father made criticisms about the proposals of the mother for holiday time but her proposals also changed during the course of the trial.
The father deposes to the child experiencing significant upheaval in his young life at 18 months old when his primary care was transferred from the mother to the father and that the child spent his first overnight in his care on 30 May 2015 after being in the primary care of the mother since separation.
The father deposes that he relied upon the support of the paternal grandparents when the child was suddenly left in his primary care without “discussion nor forewarning”. He deposes that he is employed three days a week on Mondays, Wednesdays and Thursdays. He deposes that his parents and their partners stepped in to assist him with childcare on the days that he was employed whilst he was awaiting a childcare place and that the child began childcare for one day a week in November 2015 on Wednesdays and added a second day being Thursdays in April 2016. He deposes that the child is cared for by the paternal grandparents on the third day of his employment. The father deposes to the paternal grandmother and her partner living close by and the child also being cared for by the paternal grandfather and his partner who live about 1.5 km from him. He deposes to the three households being close to each other and providing a cooperative sharing of the care of the child, with all three houses being set up for the child.
The father deposes to the child’s routine during the week which includes taking the child to a playgroup where no English-speaking adults attend on Tuesdays, being cared for by one or other of his paternal grandparents on Mondays, and being in child care on Wednesdays and Thursdays when he is at work and spending Fridays with the mother one Friday in four or with him because he is not working on that day. During school term he also takes the child to a junior activity class on Friday mornings. The father complains that the mother has only taken the child to the junior activity class on one occasion since she moved to Brisbane and that she proposed to comply with his wishes for her to attend if he agreed to an additional long block holiday time or agreed to extending the child’s Friday time with her.[10]
[10] Father’s affidavit filed 11 August 2016, par 63.
Regarding his employment responsibilities, the father deposes that his usual hours of work are seven hours per day being up to 21 hours per week usually between 9 am and 4 pm. He is usually only required to be on call or required to be available to be called back to work for emergencies after-hours for two continuous seven-day periods per year.
The father deposes to having a very close bond and attachment with the child which has eased the child’s transition into his primary care and that it is not in the child’s interest “for that security to be interrupted or undermined. Given his history, [the child] is sensitive and vulnerable in his attachment security”.[11]
[11] Ibid, par 69.
At paragraph 92 of his affidavit, the father deposes to the child showing signs of the stress of separating from his primary attachment figure in the weeks immediately after the mother’s departure and the child’s transition into his primary care and described the following:
(a)[the child] often woke once or twice a night screaming.
(b)He needed soothing, rocking and cuddling to settle. He wanted to sleep on my chest rather than in his cot. I have a rocking chair in [the child’s] room and rocking in the chair with [the child] on my chest seemed to comfort him.
(c)He was clingy and dependent on me. If I went into another room, [the child] would protest and call out “Papa”.
(d)When I left for work he protested and cried. I was told by my parents, who were looking after [the child] while I was working during that time, that they were able to sooth him and [the child] settled soon after I left.
The father deposes to having agreed to the child spending extra day time with the mother on occasions but acknowledges that he did not agree to extra overnights. He deposed at paragraph 99 of his affidavit:
[The child] already spends 4 week long blocks a year away from me as his primary carer and his home. I have focused on providing as much stability in [the child’s] routine as possible. When [the child’s] routine is disturbed, such as around holiday blocks, I have observed [the child] copes less well as a result of these changes to his routine.
The father deposes to the mother seeking additional block holidays with the child and changes to the spend time arrangements which he has resisted because he felt that it would undermine the child’s routine and the need for consistency, stability and predictability in his life. He refers to this having caused ongoing conflict between the parties.
The father acknowledges that the child has ultimately coped well with the transition into his primary care. However he complains about the conduct of the mother at changeover making it more difficult for the child than it needed to be and gives examples of the mother:
· wanting to engage in discussions with him about medical and other matters relating to the child at changeover;
· not having the child ready for changeover or having to return to fetch an item;
· bringing the child outside and then returning him to farewell one of the maternal grandparents who usually accompany her;
· engaging in lengthy, emotional and repeated goodbyes with the child which tend to prolong and exacerbate his distress; and
· engaging in continual waving whilst the child is carried down the outside steps of the mother’s unit.[12]
[12] Father’s affidavit filed 11 August 2016, par 103.
The father deposes to the child taking a long time to settle back to a routine with him when he has been separated from him for significant periods. He cites as an example that when the child is away from him for more than two days, he can take up to a week to settle back to usual behaviours and routine.[13]
[13] Ibid, par 158.
The father deposes to the child being particularly destabilised during the March/April 2016 period when he spent extensive holiday blocks of time with the mother. He gave examples of the following behaviour of the child when returning to his care:
(a)Experienced disturbed nights (waking at night saying papa) for sometimes 2 to 3 nights at a stretch after returning to [the father’s] care.
(b)Appeared overtired, including shouting or crying episodes, poor concentration, refusal to listen to stories, and was easily upset. Even playing with his previously favoured toys did not really appeal to [the child] during this period,
(c)There were some instances of deliberately disruptive behaviour such as banging on objects despite repeated requests not to,
(d)He was clinging more to time with [the father],
(e)[The child] was distressed more and more often at changeovers during this period.[14]
[14] Father’s affidavit filed 11 August 2016, par 164.
The father deposes to his concern that the mother will move away from Melbourne into the future further disrupting the stability of the child and relies upon the evidence of the mother in the original trial as to many reasons why she could not contemplate living in Melbourne including that she had few friends in Melbourne, her family do not live in Melbourne and there was no suitable work in Melbourne.
The father doubts the mother’s commitment to living in Melbourne on a long-term basis and highlights the fact that the mother has not provided any information about how she will practically manage the care of the child on days when she is engaged in employment and the child is in her care. He deposes to the mother’s family history and the fact that the mother was born in the United States and is a US citizen having lived in a variety of places including spending several years in Northern Territory and BC Town. He refers to the mother having chosen to do training and registrar placements in a range of locations including Brisbane, Canada, Queensland, the Northern Territory and Tasmania. He deposes to the mother working in regional and interstate places after qualifying as a consultant. The father refers to the mother unequivocally stating in evidence during the original trial that she would remain living in Melbourne if the court declined her application to remove the child from Melbourne to Brisbane and then only 10 days after judgment was delivered informing him that she would be moving to Brisbane without the child.
The father maintains that the mother’s confidence that there is work for her in Melbourne is in complete contradiction to the position she asserted throughout the original trial namely that she had been unable to find “suitable” work in Melbourne despite her attempts to do so.[15]
[15] Ibid, par 275.
The father also complains about the mother’s choice of living in Suburb CD rather than in a suburb located close to the child’s home in Suburb DE which he states imposes on the child the time and stress of a 30 minute commute across the city for changeover, child care and school.
The father deposes to the child starting three-year-old kindergarten in 2017 and that for this reason he proposes that the mother spend time with the child for holiday blocks during the gazetted school holidays which would have the benefit for the child of distributing the block holiday time between both parents evenly throughout the year minimising the disruption to his usual home life routine. The father notes that playgroups and other extension activities also follow the school terms. At paragraph 171 of his affidavit, the father proposes that the child spend 4 one week block holiday periods during the Victorian Gazetted school holidays with each parent, increasing to half holidays when the child commences school.
However during the trial, the father appeared to change his position in relation to the “one week holiday blocks…, increasing to half holidays when [the child] commences school”. In the document handed up in the trial outlining the parties’ respective final proposals, the father’s proposal for holiday time with the mother was a gradual increase in the time the child would ordinarily spend with the mother under the usual alternate weekend spend time arrangements (being each alternate weekend from Friday to Sunday until 31 December 2017 and Friday to Monday from 1 January 2018), such that during the Victorian gazetted school holiday periods, the child spend additional time with the mother, at the mother’s election, as follows:
(a)From 1 August 2017 to 18 December 2017 (when the child is 3 years old and attending 3 year old kindergarten), for one additional night (constituting three consecutive nights from 5.30pm Friday to 6.30pm Monday);
(b)When the child is 4 years old, for one additional night on 4 occasions (constituting four blocks of four consecutive nights from 5.30pm Friday to 6.30pm Tuesday), however the child will not spend time with the mother on the Wednesday night that week under the usual spend time arrangement, thereby representing no overall increase in the mother’s time but rather providing for a larger block of time;
(c)When the child is 5 years old (and commences prep at school), for an additional two nights on 4 occasions (constituting four blocks of five consecutive nights from 5.30 Friday to 6.30pm Wednesday), however the child will not spend time with the mother on the Wednesday night that week under the usual spend time arrangement; thereby representing an overall increase in the mother’s time to one additional night only;
(d)From 19 December 2019 (when the child turns 6 years old) to the commencement of Term 1 in 2020 (when the child commences Grade 1), for an additional three nights (constituting six consecutive nights from 5.30 Friday to 6.30pm Thursday); and
(e)From the start of Term 1 in 2020 (when the child commences Grade 1), for half holidays.
This proposal is inconsistent with and represents a reduction in the holiday time that the father deposed to in paragraph 171 of his trial affidavit as well as the holiday time that the father previously agreed to in the interim consent orders made 27 October 2016 whereby the child was to spend “holiday time” of four consecutive nights with the mother on six occasions between early November 2016 and mid-July 2017 (save for the Christmas 2016 period, which was 6 consecutive nights).[16]
[16] Consent Orders made 27 October 2016, order 5(c).
The father deposes to the child communicating with the mother by Skype at 6 pm each Tuesday, Thursday and alternate Sunday when he is not spending time with the mother. He deposes to this being a big commitment for both him and the child and seeking to limit the length of time on Skype because the child’s attention span does not sustain the length of time which the mother likes to link on Skype and often includes extended family at other locations which caused technical problems.
The father deposes to the lack of communication by the mother with him about how the child spends time with her when he is in her care and complains that at times the mother has been working and the child has been in the care of the maternal grandmother without his knowledge.
The father deposes to fundamental differences between the parents concerning the implementation of changeover and his preference to raise the child in a bilingual setting. He deposes to continuing to experience hostility in his interactions with the maternal grandparents at changeover or on Skype and a combined attitude from the mother and the maternal grandparents that his role in the child’s life is not important.
Regarding the Christmas period, the father deposes at paragraph 252 of his trial affidavit:
…
(b)I propose that we continue with the 3 day alternating Christmas period the current orders provide. My proposal is that I always take the first few days from end of year school breakup till Christmas Eve. Then comes the 3 day Christmas Eve to Boxing Day period (which we each enjoy in rotation).
(c)Under my proposal, during the period Boxing Day evening to the evening of 5 January, [the mother] could take a week’s holiday with [the child]. For the next two years until [the child] reaches school age, because of [the child’s] young age, [the mother] and I are both restricted to taking [the child] away for only 7 days at a time during our respective designated holiday allocation. (emphasis in original)
(d)My orders propose that the number of times [the mother] may take [the child] away increase from 4 weeks a year (2017), to 5 weeks away (2018), then half the school holiday periods once he is 5. [The mother]’s proposal by contrast, gives her 5 x 7 day blocks per year immediately (2017 and 2018) until he is 5, when she progresses to half school holidays. I say that is too much for [the child], too soon. I believe it is highly undesirable for [the child] at his young age, and given the multiple upheavals he has experienced in his life, to be expected immediately to spend 5 x 7 day blocks away from me his primary carer when he is still consolidating his routine with me.
(e)I disagree with [the mother]’s proposal to split summer holiday periods down the middle. [the child] will be away from one parent for a continuous long period of around 3 weeks from the time he is 5, which would be too much.
The father’s statement at paragraph 252(d) of his affidavit that half holidays commence once the child is 5 years old is again inconsistent with the father’s final proposal handed up at the trial, whereby the father proposed that half holidays commence in 2020 when the child is 6 years old.
The father’s attitude is summed up at paragraph 213 of his trial affidavit where he deposes that he does not agree with the mother’s account of the effect of her relocation to Brisbane on the child. He deposes at paragraphs 213 and 214 :
213.…[The mother] has underplayed the enormous stress she imposed on [the child] and that it is now part of his psychological history. [The mother’s] sudden departure and her greatly reduced availability to [the child] has fundamentally altered his sense of attachment. [The child’s] relationship with [the mother] is still no doubt strong, however it is now a different relationship to the one they had before she moved away.
214.[The mother’s] often repeated proposed solution to any problem we encounter with [the child’s] behaviour is that [the child] spend more time with her. I disagree with [the mother’s] view. My experience has been that [the child] has managed best when there is consistency and predictability in his routine. [The child] struggles when there are changes which disrupt his usual routine, such as around the holiday blocks.
Regarding the mother’s complaints about his refusal to allow her to take the child to a family reunion in Sydney, the father deposed that the child had already travelled interstate six times in the 12 months prior to the mother’s request and that she only informed him of the plans for the family reunion at the eleventh hour despite the fact that the plans had been made long before the mother sought his permission to attend with the child.
At paragraphs 255 and 256 of his affidavit, the father complains about the mother’s protracted email communication seeking holiday time and the potential for conflict created by orders which provide for nominating holiday block times. He complains that it has been exhausting to constantly negotiate changing arrangements and other demands from the mother. He also deposes at paragraph 247(e) of his affidavit:
Nominating holiday blocks at random times has also lead to unnecessary disagreement between [the mother] and me… Set holiday periods will remove that potential for conflict.
In cross-examination the father conceded that the mother is pursuing her position because she genuinely believes that it is in the best interests of the child. He described the mother as being “goal directed” and stated that she is “not uninsightful” that she is not “selfish” but that there are some “distortions” about how she justifies her position.
The father confirmed and was unshaken in his position that there should not be an increase in the time the child spends with the mother in 2017 from three nights per fortnight until 2018 when he proposed that the child should spend five nights per fortnight with the mother. For this proposal he relied upon the recommendations of the family consultant but conceded that the family consultant recommended four nights per fortnight initially.
He was unshaken in his view that there should not be equal shared care of the child until after the child begins school and around the age of six or seven years. He stated that “principles of caution” needed to be applied to transitioning too quickly to equal shared care and that the transition should not be abrupt. He stated that relying on the recommendations of the family consultant, there are risks of “exposing the child to developmentally challenging” circumstances in equal shared care before the age of six or seven. He maintained that if the child were to spend seven nights per fortnight with the mother when he began school, that there would be an increased risk of psychological harm from repeated time away from the primary carer.
The notation to those interim orders which were made 27 October 2016 and continued pending the delivery of judgment were as follows:
These orders are all without prejudice to each party’s position as advanced in their respective final orders sought in their outline of case.
The father has consented to these orders on the basis that the mother has indicated she intends that overnight travel with the child out of Melbourne but within Victoria during her time will be infrequent.
The interim consent orders provided for holiday time for the child to spend with the mother for 5 nights from Christmas Eve 2016, 5 nights from 25 January 2017, 5 nights from 6 April 2017 and 5 nights from 18 May 2017 and 13 July 2017.
The interim consent orders provided for the child to live with the father and to spend time with the mother provided she is living in Melbourne, each Wednesday from 5.30 pm until 5.30 pm on Thursday commencing 1 February 2017 and from 9 am Friday until 5.30 pm Sunday each fortnight from 10 February 2017. The interim consent orders continued until the delivery of judgment. This then effectively provided for the child to spend 4 nights per fortnight with the mother and block periods of 5 days for holidays until 17 July 2017.
In general terms, it was the opinion of the family consultant that equal shared care does not tend to work well for children under six or seven years of age. I accept the evidence of the family consultant on his latest assessment that the child would not be ready to move to a position of shared care earlier than the age of six or seven years. I am not satisfied that on the balance of probabilities there is evidence that it is in the best interests of the child to make orders for equal shared care commencing 26 January 2020.
On the whole of the evidence, I am satisfied that the proposals of the Independent Children’s Lawyer for the living arrangements for the child are an appropriate progression in the time which the child should spend with the mother and on the evidence of the family consultant those proposals are in the best interests of the child. The Independent Children’s Lawyer did not propose an equal shared care living arrangement by 2020 (as sought by the mother) but instead proposed that the child spend time with the mother for six nights per fortnight commencing in term 2 of 2019. The evidence of the family consultant did not support an equal shared care living arrangement by the commencement of 2020. He was also of the view that the parents should reassess the child independently before moving to an equal shared care arrangement.
In these circumstances, on all the evidence I am not satisfied that the mother has established that it is in the best interests of the child to make an order for an equal shared care living arrangement throughout the year in accordance with her proposals commencing 26 January 2020.
Although the evidence of the family consultant and the proposals of the Independent Children’s Lawyer did not support the mother’s proposal in this regard, in cross-examination the family consultant was of the view that the parents should be working towards an equal shared care arrangement.
The parents in this case parent at a high level and have the capacity to assess the child as he matures. Despite their firm views, these parents are in a position to resolve the future timing of the progression to an equal shared care arrangement. Hopefully this can be achieved without resorting to further litigation which would not be in the best interests of the child.
Holidays other than Christmas/long summer holidays
The parents agreed on the enrolment of the child in the VM program for 2017 when the child will commence 3 year old kindergarten and in 2018. The Independent Children’s Lawyer’s proposals for the child to spend holiday time with the mother reflect school terms notwithstanding that the child is not yet in school, but this is appropriate so that the holidays are evenly distributed and the father supports the concept of using the gazetted school holidays as a framework.
The proposals of each parent for holiday time (other than Christmas and Easter) were detailed and in my view present difficulties in terms of enforcement. The mother’s proposal also provides for her or the father to make an election for the child to spend holiday time with her or the father and includes that the child spend a block period of holiday time with each parent on up to three occasions during the year of 5 nights in 2017, 7 nights in 2018 and half holidays from 2019.
The father’s proposals provide for the mother to make an election for the child to spend additional time with the mother during the term holidays whereby the child’s time with the mother under the usual spend time arrangement be extended during the respective holiday periods to 3 nights on one occasion between 1 August and 18 December 2017, 4 nights on four occasions during the 2017 Christmas/long summer holiday period and the 2018 term holidays, 5 nights on four occasions during the 2018 Christmas/long summer holiday period and the 2019 term holidays. Thereafter, the father proposes a half holiday arrangement from 2020.
Given the historical difficulties experienced by the parents and their firm views, the mechanics of the orders require considerable attention and need to be precise but also enforceable. The proposals of the parents which provide for the parties to make elections for holiday time invite further opportunities for protracted disagreement. For these reasons, notwithstanding that the child is not yet at school, I prefer the proposals of the Independent Children’s Lawyer which specify that these holidays be taken during term school holiday periods unless the parties agree otherwise. This will ensure that any block holiday periods of time other than Christmas/long summer holidays are evenly distributed throughout the year and this should accommodate the concerns of the father as the primary carer.
On all the evidence I accept that the proposals of the Independent Children’s Lawyer regarding term holidays throughout the year are supported by the evidence of the family consultant as outlined previously and are in the best interests of the child. These provide for the child to spend time with the mother for 6 nights returning to the father for 8 nights and then a further 2 nights with the mother. In 2019 and 2020 the Independent Children’s Lawyer proposed week about which I accept is in the best interests of the child.
Easter
Concerning the competing proposals for the child spending time with the mother each alternate Easter, I prefer the proposals of the Independent Children’s Lawyer for term holidays to be maintained. In most years, the Easter holidays occur during school term holidays and should be accommodated during term holidays as outlined above.
Christmas/long summer holidays
It is important to note that the interim orders for the long summer holiday period made by Bennett J on 10 September 2015 provided for a block period of seven consecutive nights with the mother before the trial even took place.
On all the evidence the child has spent many block periods of seven days with the mother in October 2015, December 2015, April 2016, July 2016 and eight days in February 2016 when the father travelled to Asia. I accept the evidence of the father that he has observed some changes in the child’s behaviour on return from the block holiday periods that the child has spent with the mother but on the evidence of the family consultant the child is of a maturity and resilience where the block holiday time is in his best interests.
The father’s proposal for the post-Christmas summer holiday period is more restrictive than the historical arrangements. The father’s proposals restrict the child’s time with the mother to a block of 4 nights in 2017, 5 nights in 2018 and 6 nights in 2019. (However from 2020 the father proposes 2 block periods of 12 nights and 9 nights in even years and 10 nights and 9 nights in odd years).
The Independent Children’s Lawyer did not propose any specific orders for Christmas 2017 and 2018 but instead proposed at paragraph 12(e):
The arrangements for Christmas in each alternate year should provide for a block of time to allow the mother to travel with [the child] to spend time with her family in Queensland, with the father having such block of time in the alternate years.
The father’s proposals for Christmas did not appear to allow for travel time other than on Christmas Eve and for this reason I prefer the mother’s proposals for the Christmas period of 2017 and 2018 which begin on 21 December and conclude on 26 December being 5 nights because it would allow for travel time in 2018 when the child will spend time with the mother and in alternate even years thereafter. The child spent time at Christmas in 2016 with the mother so the orders I propose to make will provide for the child to spend Christmas with the father in 2017. The last day of the school year for the following years concludes before 5.30 pm on 21 December so that there is merit in the mother’s proposal to commence the Christmas spend time period from 21 December in each even year.
I am satisfied that it is appropriate to continue this arrangement each year so that the child begins all Christmas holiday time on 21 December.
Both parties’ proposals for holiday time during the long summer holidays prior to 2020 (on the father’s case) and 2019 (on the mother’s case) included that the parties elect a number of consecutive nights three or four times per year. Having regard to the litigious history of the parties, it would be inviting further disagreement about holiday periods if the orders provided for each party to elect a time. This also assumes that there will be agreement in response to the elections made which provides fertile ground for further dispute.
Implementing the proposal of the Independent Children’s Lawyer that the child spend time with the mother for a block period of 6 consecutive nights during the school term holiday periods throughout the year is not a change from what has already occurred historically. For the long summer holiday period beginning in 2018, it is appropriate to extend the 6/8 holiday regime proposed by the Independent Children’s Lawyer for the term holidays until a week about holiday arrangement is implemented in 2019. This in effect adopts the proposals of the Independent Children’s Lawyer that the block period of time with the mother remains generally restricted to 6 nights in any holiday period until the week about holiday regime commences in Term 1, 2019.
Proposals for 2021, 2022 and thereafter
The Independent Children’s Lawyer’s proposals for Christmas are that there be a “block period of time to allow the mother to travel with the child to spend time with [the mother’s] family in Queensland” (paragraph 12(e) of final proposal) and that for 2021 and thereafter, a half holiday arrangement including summer holidays be implemented (paragraph 22 of final proposal).
On all the evidence including the evidence of the family consultant, I accept that the broad proposal of the Independent Children’s Lawyer that a half holiday arrangement including summer holidays commencing Term 1 in 2021 is in the best interests of the child. This would also result in less interstate travel and minimise the changeovers for the child. This also takes account of the fact that both parents agree that the summer holiday period should be shared equally at that time. In any event, the parents do not seek that the child spend time with each parent on Christmas Day. Rather, their proposals are that the child spend time with the mother on Christmas Day each alternate year.
Consistent with the commencement time for the previous Christmas periods which would be in place and given that neither parent seeks that the child spend time with the mother any earlier than 21 December (on the mother’s proposal) or 24 December (on the father’s proposal), it is appropriate that the half holiday period be calculated each year to commence on 21 December 2021 for the reasons outlined earlier.
The orders I propose to make for the Christmas/long summer holiday periods from 2021 do not ultimately alter the amount of time that the child would spend with each parent under their proposals.
Whilst the family consultant pointed out that ideally the child should be reassessed, I am obligated to consider the additional considerations and make orders that would be least likely to lead to the institution of further proceedings in relation to the child.
In summary, the orders I propose to make essentially reflect the proposals of the Independent Children’s Lawyer which were supported by the family consultant but I have set them out in more detail having regard to the father’s criticism that they were unclear. These would result in the child spending time with the mother during the long summer holidays beginning in 2017 on the basis of six nights with the mother, eight nights with the father and a further 6 nights with the mother before the child was returned to the father. By the time the child commences school, the child should be spending equal time with the parents during the long summer holidays in a week about arrangement in 2019 and 2020 and from grade 2 (in 2021), in a half holiday arrangement. It would appear the father was proposing that the child spend a larger block period of time with the mother during the Christmas/long summer holiday period in 2020, but this is not supported by the proposals of the Independent Children’s Lawyer which do not support the child spending more than 7 consecutive nights with the mother during holidays until 2021. In any event, at any time it is open to the parents to agree to the child spending any block period of time with the mother.
Overseas and other travel
Regarding the orders sought by the father restraining the mother from travelling with the child outside Melbourne which were not agreed, there is no basis for the making of an injunction and on the evidence of the clinical psychologist there should be no restrictions on travel for the child. The family consultant was of the view that there would be no difficulties for the child travelling to Brisbane with the mother to visit family even for a weekend. Accordingly I do not consider it appropriate to make an order restricting the mother from travelling with the child outside Melbourne when the child is in her care.
Both parents agreed to orders for a passport and overseas travel for the child but the Independent Children’s Lawyer proposed that an order be made that the child not be taken overseas by either parent until 2020. This was not really addressed in final submissions and I do not propose to make such an order where the parents have clearly contemplated and agreed to some overseas travel presumably being only a short distance destination.
The Independent Children’s Lawyer also proposed that there be a condition that neither parent unreasonably withhold consent for the child to travel to “a local frequented country by Australians, such as Indonesia (Bali)”. There was insufficient evidence in the trial about this condition as an issue and the proposal of the Independent Children’s Lawyer was not supported by any evidence of the family consultant. I find that there is no evidence to support the need for this condition.
Concerning the child’s passport, having regard to the history of general disagreements between the parents, I consider it appropriate for the father to hold the child’s passport except during periods that the mother takes the child overseas in accordance with the agreed conditions. This is largely because the father is the primary carer. However I accept the proposal of the mother as reasonable that an order be made for the father to provide the mother with a certified copy of the passport within 14 days of a written request.
Other matters
Notwithstanding the opposition of the father, I regard the evidence of the family consultant as being consistent with the proposal of the Independent Children’s Lawyer, that in the event that either parent is unable or unavailable to personally care for the child for a period in excess of 48 hours, that parent must provide the other parent with at least three days written notice (except in the event of an emergency in which case as much notice as is practicable must be given) and the other parent will have the first opportunity to care for the child provided that the other parent advises the unavailable parent within one day of receiving the notice (or as soon as practicable in the event of an emergency).
It was the evidence of the family consultant that the child will benefit from spending as much time as possible with either parent in the event that one of them is available to care for him instead of other family members or day-care. The proposal of the Independent Children’s Lawyer for 2017 and 2018 is in line with this. Accordingly, the commencement time of the orders I propose to make for the child to spend time with the mother each alternate weekend in 2017 and 2018 give effect to this in that the child’s time with the mother will begin at 9 am on the alternate Friday, as proposed by the Independent Children’s Lawyer. This evidence of the family consultant applies to the time that the child spends with either parent because I regard each parent as having the necessary skills to decide when the child should attend childcare/kindergarten. Both parents on all the evidence parent at a high level but both have strong views which is the source of the persistent disagreements.
On the evidence of the family consultant, the communication by Skype is helpful and I accept the mother’s proposal in preference to that of the father because the mother’s proposal includes special days such as the child’s birthday. The father’s proposal restricting communication to 6 pm each Thursday does not provide for communication on special days that fall on other days of the week. Further, the father’s proposal is not supported by the Independent Children’s Lawyer who proposes that Skype communication take place at least twice per week.
I regard the mother’s further proposal for an order that:
The travelling party ensure that [the child] is available for Skype communications at the regular intervals required by [the orders in relation to Skype communication] but at reasonable times having regard to the time zones of [the child] and the parent who does not have [the child] in his or her care
as being unnecessary and inappropriate because of the difficulties of enforcement.
The Independent Children’s Lawyer also proposes orders for the parents to attend a family therapist for the purpose of assisting them with communication and compliance with these orders. She proposes that the parties share the costs of that therapy equally. Unfortunately having regard to the evidence of the family consultant about the strongly held views of each parent and the fact that the parties do not support this proposal, I do not consider it appropriate to make an order to impose such an obligation on the parties. Should there be an improvement in the attitude of each parent then this would be a sensible proposal which would undoubtedly be in the best interests of the child.
Hopefully, both parents will reflect on the evidence of the family consultant that even at this stage and age the child has an awareness of the subtle conflict between his parents and would be assisted by witnessing his parents demonstrating some cooperation, particularly at changeover.
The parents must bear in mind that the child will begin to have his own views as he matures and they will have to make adjustments and allowances for this. Just as they will have to make adjustments, as all parents do, should there be changes made in the requirements of the workplace for either parent.
I certify that the preceding two hundred and seventy-seven (277) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 22 June 2017.
Associate:
Date: 22 June 2017
Annexure A
Documents relied upon by the applicant mother:
Further Amended Initiating Application filed 25 July 2016;
Affidavit of the mother filed 25 July 2016;
Affidavit of the mother filed 22 August 2016; and
Report of Mr EF dated 14 September 2016.
Documents relied upon by the respondent father:
Second Further Amended Response to Initiating Application filed 6 October 2016;
Affidavit of the father filed 11 August 2016;
Affidavit of Mr EF filed 20 October 2016;
Reasons for Judgment of the Honourable Justice Macmillan dated 29 May 2016; and
Interim orders made 10 September 2015.
Document relied upon by the Independent Children’s Lawyer:
Affidavit of Mr EF filed 20 October 2016.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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