BYFIELD & BYFIELD
[2019] FCCA 3586
•17 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYFIELD & BYFIELD | [2019] FCCA 3586 |
| Catchwords: FAMILY LAW – Parenting – whether child should live in the City A area or the Town B area – parental responsibility – allegations of violence – orders in best interests of the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 4AB |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS BYFIELD |
| Respondent: | MR BYFIELD |
| File Number: | WOC 880 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 3 October 3 October 2019, 4 October 2019, 22 November 2019 & 28 November 2019 |
| Date of Last Submission: | 28 November 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 17 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| The Respondent appeared in person |
ORDERS
Subject to Order 2, the Mother shall have sole parental responsibility for the Child X born … 2013 (“the Child”).
In exercising her responsibility pursuant to Order 1, the Mother shall;
(a)Notify the Father, in writing, of any decision required to be made by her, and proposals she is considering;
(b)Notify the Father of the date by which such decision is required to be made;
(c)Provide the Father with as much notice as is possible in the circumstances relating to the decision to be made;
(d)Take into account any proposals or views expressed by the Father;
(e)Notify the Father, in writing, of the decision made; and
(f)Be restrained from making an application to change the Child’s name.
The Father shall provide to the Mother, in writing, his views or proposals in respect of the decision to be made, within the time reasonably requested by the Mother.
The Mother and the Child be permitted to reside in the Town B District.
The Child shall live with the Mother.
The Child shall spend time with the Father;
(a)During school terms in a four-weekly cycle (with Week 1 commencing on the first Monday of school term 1 2020) as follows:
Week 1 –
(i)In Town B, from the conclusion of school Friday until the commencement of school Monday.
Week 3 –
(ii)In Town B, from the conclusion of school Friday until the commencement of school Monday, or alternatively;
(iii)Should the Father provide the Mother with ten (10) clear days written notice, in City A from 8:00pm Friday until 3:00pm Sunday.
School Holidays
(b)During the term 1 and 3 school holiday periods, if the Father was ordinarily to have the Child on the first weekend of the school holiday period in accordance with Order 6(a) then the Father will spend time with the Child from the conclusion of school on the last school day of the relevant term until 3:00pm on the second Saturday of the school holiday period. If the Father was not scheduled to have the Child on the first weekend of the school holiday period in accordance with 6(a) then, the Father will have the Child from 3:00pm on the second Saturday in the school holiday period to 3:00pm on the last Saturday prior to the commencement of the school term:
(c)During the term 2 school holiday period, from the conclusion of school on the last day of term 2 until 3:00pm on the last Saturday of the school holiday period.
During the term 4 school holiday period;
(d)In an odd year, commencing at 3:00pm Boxing Day and concluding at 3:00pm seven days thereafter and then on a week about basis until the last week of the school holiday period whereby the Child will spend time with the Mother from 3:00pm on the last Saturday of the term 4 school holiday period up to the commencement of school in term 1.
(e)In an even year, commencing at 3:00pm Christmas Eve and concluding at 3:00pm seven days thereafter and then on a week about basis until 3:00pm on the last Saturday of the school period where the Mother will then have the Child up to the commencement of school in term 1.
All changeovers pursuant to Order 6 above to occur at 3:00pm.
Such other times as may be agreed between the parents in writing.
Subject to order 6(a)(iii), during school terms if any order herein provides for a parent’s time to conclude or commence at the conclusion of school or commencement of school, then changeover shall occur at the Child’s school, except in circumstances where changeover does not fall on a school day in which case changeover is to occur at Town B McDonalds or such other place that the parties might agree in writing.
During school terms if any order herein provides for a parent’s time with the Child to conclude at the commencement of school and the relevant day is not a school day, the parent’s time will conclude at 9:00 am on that day.
During school terms if any order herein provides for time with the Child to commence at the conclusion of school and the relevant day is not a school day, the parent’s time with the Child shall commence at 3:00 pm on that day.
For the purposes of Order 6(a)(iii) and school holiday time where changeover cannot occur at school, changeover is to be facilitated at City A McDonalds.
If the Father is spending time with the Child in accordance with Order 6(a), and there is a public holiday;
(a)On the Friday that the Father’s time is ordered to commence, then the Father’s time is extended to commence at 8:00pm on the night before with changeover at Town B McDonalds; or
(b)On the Monday immediately after the Sunday that the Father’s time was ordered to conclude, then the Father’s time be extended to 3:00pm on that Monday with changeover at Town B McDonalds.
For the purpose of facilitating communication between the parents, each parent shall communicate regarding the Child via or such other application or website as the parties agree in writing (“the website”), except in the case of emergency.
To facilitate the preceding order, within 7 days of the making of these Orders, each parent will establish a parent account on the website and shall do all things necessary, including paying any necessary fee, to enrol in the program for a one year subscription by completing the online signup process AND shall thereafter, conduct all parental communication using the website’s features save for communication which must be acted upon in less than 24 hours.
The parties shall use Calendar, Info Bank and Expense features (“other features”) and shall use the Messaging feature only when the information cannot be conveyed in the other features.
The parties shall not communicate by telephone or text message except regarding matters of an emergency nature regarding the Child that must be acted upon in less than 24 hours, and in the case of such emergency, the parties shall record the subject and content of the communication by a journal entry in the calendar feature of the programme.
Unless otherwise agreed in writing, or further Order of this Court, each parent will renew and keep current their subscription to the program during the Child’s minority.
Each parent facilitates the Child having liberal telephone or video call communication with the other parent:
The parent who has care of the Child shall facilitate the child speaking with the other parent upon the Child’s request to do so but calling the other parent’s mobile telephone; and
Unless otherwise agreed, each Tuesday, Thursday and Sunday at between the hours of 5:00pm to 6:00pm with the parent who does not have care of the Child telephoning the mobile telephone of the parent with whom the Child is living or spending time.
Both parents refrain from making critical or derogatory remarks about each other or members of each other’s family or household in the presence or within the hearing of the Child and shall immediately remove the Child from the presence and hearing or any third party who does so.
In cases of an emergency relating to the Child, communication between the parties is to take place by way of text messages or telephone call to the other parent’s mobile telephone.
The parties shall ensure that they keep each other informed, in writing, as soon as is reasonably practical of:
(a)Any serious illness, injury or hospital admission while in that parent’s care including, but not limited to:
(i)The name and address of any attending medical practitioner or facility;
(ii)Date of consultation
(iii)Diagnosis
(iv)Treatment rendered and
(v)Prognosis
(vi)Any medications that have been prescribed for the Child;
(vii)Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the Child;
(b)Any significant social, school or religious functions or activities which the Child is to attend;
(c)The name and date of birth of others who may reside in the same household the Child from time to time; and
(d)Any other important matter relevant to the welfare of the Child.
Each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child directly from the treating medical practitioner, health service provider or institution.
Each parent will advise the other parent immediately in the event that the Child suffers a serious illness, injury or hospital admission while in that parent’s care.
This Order acts as an authority of the Mother for the Father to obtain any information about the Child that he may seek from the Child’s school including, school report, curricular newsletters, school photo order forms, invitations to any school activities which parents are invited to attend and any other information the school might otherwise ordinarily release to parents of their students.
This Order operates as authority of the Mother to the Child’s medical professionals, school or day care, sporting organisations or other extra-curricular organisations to provide the Father information that parents are ordinarily entitled to receive in relation to the child.
Notwithstanding who the Child might be living with/ or spending time with each parent is permitted to attend all extra-curricular events involving the Child including but not limited to:-
(a)Extra-curricular activities or sporting events that allow for parental attendance or participation; and
(b)Any functions or events held at the Child’s school, pre-school or kindergarten that allow for parental attendance or participation.
The parties will, within 14 days of a written request from the other party do all things reasonably required to obtain and/or renew a Passport for the Child.
The costs of any Passport Application or renewal be borne equally between the parties.
Both parents are permitted to travel with the Child outside of the Commonwealth of Australia provided that:-
(a)The parent proposing the holiday will notify the other parent, in writing, at least 60 days prior to the departure date of such proposed trip of the following:-
(b)The dates that the parent intends to travel with the Child;
(c)Details of where the parent intends to travel with the Child; and
(d)A contact phone number on which the other parent can contact the Child while she is overseas;
(e)Copies or details of any proposed itinerary
The parents are restrained from causing the child to travel to or through any country that has been deemed by the Department of Foreign Affairs and Trade as “Do not travel” or “Reconsider your need to travel” or equivalent.;
The proposed travel is not to occur outside of time the Child would otherwise be spending with that parent unless express written consent is given by the non-travelling parent;
The non-travelling parent must indicate their consent or otherwise to the proposed travel in writing within 28 days of receiving written notification of the proposed travel and may not unreasonably refuse their consent to the Child's proposed travel;
If the proposed travel is consented to, the parents must then do all things necessary and provide any necessary consents for the Child to obtain any travel authorisations and/or visas that may be required by the intended destination countries;
At least 14 days prior to the Child’s departure the parent travelling with the Child will provide the other parent with:
(a)A final itinerary including contact telephone numbers and full street addresses of where the Child will be staying; and
(b)Copies of return airline tickets and details of flights or other departure means.
In the event that the parties agree to the child travelling overseas during any time that the Child would otherwise be living with/ spending time with the non-travelling parent, the Child will spend additional time with that parent to make-up for any time missed with such make-up time to occur prior to and/or following the Child travelling overseas as agreed in writing by the parents and in any event within 60 days of the Child’s return to Australia.
In the event that the Father intends to travel outside of the Commonwealth of Australia with the Child, the Mother will provide the Father with the Child’s passport at least 20 days prior to the notified date of departure and the Father will return the Child’s passport to the Mother within 7 days of the Child’s return to Australia.
Subject to Order 39 above the child’s passport will otherwise be retained by the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Byfield & Byfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 880 of 2018
| MS BYFIELD |
Applicant
And
| MR BYFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born … 2013. X is six years old, currently lives with her mother, and spends time with her father. This case is about where X should live, not just in the sense of with which of her parents, but whether she should live in the City A region, or the Town B region. It is also about what time she should spend with the parent with whom she is not living. The Applicant is X’s mother. She is 42 years old, currently lives in the City A area and is a professional. X’s father is the respondent. He is 43 years old, lives in the City A area, and is a public servant. This has been a very difficult case to decide, and it was finely balanced.
Background
When the parents first met in about 2001, they were both living in the Town B area. They started living together in 2003 and moved to City A so that the Mother could complete her studies at the University of City A. Shortly thereafter she commenced employment, and her career, as a professional. In 2008 the Father commenced his career as a public servant. They married in 2009, and X was born in 2013. Since 2013, therefore, all of X’s life has been centred around City A. A close connection was retained with the Town B area but in terms of where X has lived, and gone to school, and the community with which she has had the greatest connection, this has been City A. That is not to minimise, however, the importance of the connection to the Town B.
The parents have slightly different versions about when, exactly, their separation took place. Nothing really turns on this, but there were periods when the Father left the home, and when he returned to the home, but it is clear that the relationship was either ending or ended. From X’s perspective, the Court can safely conclude that by 2018 her parent’s relationship was ending in substance, if not in form. In fact, when the evidence of both parents is examined carefully, it is apparent that their relationship was an unhappy one from as early as 2011. It is quite possible that most of X’s life has taken place in the context of the unhappiness of her parents. As the parental unhappiness grew, and the relationship increasingly floundered, it is highly likely that X became increasingly exposed to the conflict of her parents.
There are contested issues between the parents about family violence, whether and if so, when it occurred, and its nature.
The present proceedings were commenced on 31 August 2018. The first consent orders were made on 5 November 2018. By way of summary, these consent orders provided for X to live with the Mother and spend time with the Father one night per week and for 6 hours each alternate Sunday. Once X commenced school in 2019 X was to spend Thursday night through to Friday morning with the Father and on alternate weeks from Friday afternoon through to Sunday afternoon.
The Mother contends that in April 2019 the Father agreed for X and herself to move to Town B. The Father disputes this.
On 1 February 2019 the Court dismissed the Mother’s Application a Case seeking orders that X and the Mother relocate to Town B. The Court ordered that X continue to attend Town C Public School, and that the orders made 5 November 2018 continue. The matter was listed for hearing on 3 and 4 October 2019.
An Expert Report was ordered with the interviews occurring on 25 July 2019, the report being prepared on 9 August 2019, received by the Court on 14 August, and released on 16 August 2019. The Report will be discussed below.
The competing proposals
The Mother’s proposal was contained in her case outline document filed 1 October 2019. The Mother sought an order for sole parental responsibility subject to an obligation to notify the Father of decisions made. X would live with her Mother, and the Mother and X would be permitted to reside in the Town B district. X would spend time with her Father during school terms on a four-weekly cycle. On week one X would spend time with her father from after school on Friday until the commencement of school on Monday. In week three X would spend time with her father from the conclusion of school Friday until the commencement of school Monday, or alternatively, on ten clear days written notice, from 8.00 pm Friday until 3.00 pm Sunday.
In terms of school holidays, on the Mother’s proposal, the Father would have half of the term one and term three school holidays, all of the term two school holidays and then half of the term four school holidays.
The Mother did provide for an alternative proposal, however, If the Court did not enable her to live in the Town B district then the Father would spend time with X in week one from after school on Friday to the commencement of school on Monday, and then in week two from after school on Wednesday until 6.30 pm.
The Father’s proposal is contained in his case outline document filed 30 September 2019. He sought an order for equal shared parental responsibility, and that X live with both her parents and continue to attend Town C Public School or another school within the Region M region, agreed by the parents. From term four, 2019 X would spend time with him in a two weekly cycle as follows: in the first week from the end of school on Friday to the start of school on Monday, and in the second week from the end of school on Wednesday until the commencement of school on Thursday. However, from the commencement of term one, 2020 it would be each alternate week from after school on Wednesday, until the start of school on Monday. Then, from the commencement of term three, 2020, X would live with both parents on a week about basis, Monday to Monday. School holidays would be shared. The minute of order proposed by the Father is also reproduced in the first schedule to these reasons.
The evidence
The parties all relied on their respective Case Outlines and the Expert Report prepared by Ms D dated 9 August 2019.
In the Mother’s case, she relied on the following documents;
a)Amended Initiating Application filed 24 July 2019; and
b)Affidavit of Ms Byfield filed 27 September 2019.
In the Father’s case, he relied on the following documents;
a)Amended Response filed 27 September 2019;
b)Affidavit of Mr Byfield filed 24 September 2019;
c)Affidavit of Mr Byfield filed 18 March 2019;
d)Affidavit of Mr Byfield filed 21 January 2019;
e)Affidavit of Mr Byfield filed 27 November 2018;
f)Affidavit of Ms E filed 24 September 2019; and
g)Affidavit of Ms F filed 24 September 2019.
The following documents were tendered as evidence during the court of these proceedings;
a)Ms D invoice and Bank Transfer;
b)Disc produced pursuant to subpoena on NSW Police;
c)Bundle of email correspondence between the parties;
d)Text message exchange between the parties dated 8 November 2019;
e)Redacted version of the notes made by the Mother.
The Hearing
The hearing commenced on 3 October, continued on 4 October, resumed on 22 November, and concluded 28 November 2019.
At the hearing the mother was represented by her solicitor, and Senior Counsel Ms Gillies. At the hearing the Father represented himself. The Court observes that the Father presented as a highly intelligent and articulate litigant who seemed very comfortable in the Court room, and was at all times respectful. He demonstrated himself to be a capable cross examiner. There were times when his emotional involvement in the case clouded his judgment and impeded his ability, but for the most part, particularly in cross examination, his questions were focused on relevant issues.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The Expert Report
Ms D, a clinical psychologist, prepared an Expert Report.
It is convenient to deal with Ms D’s report, and the evidence she gave in cross examination, at this point in the reasons. That is not because her evidence has any particular primacy. However, hers is the only evidence that is both expert, and independent, and is thus useful to the Court to set out her evidence first. Notwithstanding that, the Court has obviously had the benefit of hearing all of the other evidence and, therefore, where appropriate will make some relevant observations.
Ms D set out her understanding of the relevant background facts, and the competing proposals. At 5.1(a) Ms D observed of the mother that she “… presented as resilient and adaptive in the face of most stressors and described herself as having a large number of individuals to whom she can turn for support when needed”.
Ms D observed the interactions between X and both her parents. These observations were positive. From the Court’s perspective it was interesting to observe just how much X told her father about aspects of her life with her mother including, for example, the times they spend at the maternal grandfather’s home. There was no suggestion that X was uncomfortable in telling her father about her life when she was with her mother.
Ms D met with X alone, and this is summarised at 11.8 - 11.11 of Ms D’s report.
X was not sure why she had to talk to me. After I explained, she told me that she found the current arrangement “hard” explaining, “cos I’m away from my mum”. X told me that she missed her mother. When asked if she had a good time at her father’s and about what she did there, X said that she played in her room and said that her father sometimes played games with her such as Limbo. She said that her father did not take her out to places very often. X told me that her father had a new partner called Ms F but said she did not know what Ms F was like and said she did not like her. She said Ms F did not talk to her when she was there and said she did not know why this was.
When asked what she liked about when she was with her mother, X told me that she liked riding horses, playing with her dog at her grandfather’s and playing with the lambs. She could not think of anything that she did not like at her mother’s house. X told me that she went to Pony Club. X said she had been riding since she was two on a little Shetland. X said she used to have a horse called N. When asked what the good things about her father’s house were, X responded, “not much”. She could not think of anything she did not like at her father’s house.
If she had three wishes, X said that she would like to stay in Town B, to stay with her family, explaining that she meant her mother, and to stay with her pets.
X assured me that neither of her parents had told her what to say to me. X told me that she was not naughty and said that if she was her mother did not do anything much. She said her father did not do anything either. When she missed her mother at her father’s, X said she was allowed to call her. However, she said she did not do this very often. When she was at her mother’s, X told me she did not miss her father.
Ms D’s evaluation commences at section 12 of her report, from page 33. In considering the benefits to X of having a meaningful relationship with her parents, Ms D set out some background history at 12.1.1, some more recent research at 12.1.2, and concluded at 12.1.3 that, based on the accounts from the parents, and presumably from X, both of X’s parents have been significantly involved in her care and both want to be very involved. The Court observes the very generalised nature of Ms D’s conclusion at 12.1.3. The evidence before the Court presents a different, more complex picture. The issue of the Father’s precise involvement in X’s life is very much contested by the Mother. It is possible that Ms D’s conclusion goes too far, certainly as regards the period when the parental relationship was deteriorating, and then from separation.
Ms D considered the need to protect X from harm, from being exposed to abuse, neglect or family violence. She observed at 12.2.1 that children exposed to domestic violence are typically anxious children, and referred to research in this regard. At 12.2.2 she observed that despite the Mother’s allegations of physical and verbal abuse, and the Father’s allegations of verbal abuse, X did not show signs of anxiety, and related to each parent and to Ms D in a comfortable, confident manner. Indeed, Ms D observes “… she confidently referred to her mother in her father’s presence and Mr Byfield responded appropriately”.
The Court accepts that the totality of the evidence before it confirms Ms D’s impression that X does not appear to be an anxious child, and does relate to each parent in a comfortable and confident manner. Insofar as Ms D was suggesting, however, that X’s presentation was inconsistent with the allegations of family violence made by both parents, the Court does not agree. X presents as a resilient child, but that does not mean that she has not been exposed to family violence as broadly defined in the Family Law Act, and it certainly does not mean that there is no need to protect her from the same. Indeed, one of the most remarkable, and reassuring features of this case is that X has remained so resilient despite the toxic conflict that exists between her parents.
Ms D did consider X’s views, noting that she did express a wish to stay in Town B, but Ms D’s comments warns against placing too much weight on this, given her age. The Court agrees. Insofar as the Mother’s case, either implicitly, or explicitly asserted that weight should be given to X’s views, the Court does not accept this.
At 12.4 Ms D considered the nature of X’s relationships with her parents, and significant others. She noted that X presented as comfortable with each of her parents, but she was of the professional view that X’s strongest current relationship was with her mother. That is unsurprising, on the facts, and it was not a matter that was seriously put in contention by the father.
In her terms of reference, Ms D was asked to consider the willingness and ability of each of X’s parents to facilitate and encourage a close and continuing relationship between X and the other parent. The Court accepts that this is a relevant consideration, even if not expressly articulated as an additional consideration under section 60(c)(c)(3). This matter emerged as one of the most important factors for the Court to consider in deciding what orders are in X’s best interests. Ms D’s observations at 12.5.1 - 12.5.5 will be reproduced below
Although she was seeking to relocate, Ms Byfield had paid attention to the need to facilitate as close a continuing relationship as possible for X with her father. Ms Byfield said that X would always ask how many sleeps she had to spend with her father and would tell her that she did not want to go. Ms Byfield said she certainly believed the children should see both parents and acknowledged that Mr Byfield loved X as well. In her initial proposal, if X was allowed to relocate, Ms Byfield proposed that for one weekend a month, Mr Byfield travelled to Town B where his mother still lived and for another alternate weekend a month, proposed she would drive X up to Canberra. This would mean that X only had one weekend a month traveling. Ms Byfield estimated that it was about four hours’ travel each way. Ms Byfield noted that X was used to traveling because they would go to shows every weekend or every second weekend anyway. Ms Byfield said she also proposed that Mr Byfield had extra holiday time with X, more than half, if she was allowed to relocate to Town B to make-up for having less time during the term time. She said she had proposed Mr Byfield had X for the whole of the June school holidays and half of the other school holidays to make up for the midweek Wednesdays he would be missing. She had proposed that X go to her father’s week about during the long school holidays. Ms Byfield reiterated that it was important for X to see her father.
Mr Byfield remained hostile and suspicious about Ms Byfield’s ability to facilitate and promote his time with their daughter. This was demonstrated by his recent approach of not telling Ms Byfield that he was going overseas because “I knew what she’d do”. He went on to say that once Ms Byfield found out, she had done exactly what he had anticipated she would, that was to get him to do whatever she could to get him to breach the AVO before it was withdrawn. Mr Byfield was concerned that once she knew that he was out of the country, Ms Byfield was going to do something to his property. Mr Byfield said Ms Byfield had drawn up a whole list of items that were apparently at the house and gone around to the house to try to get them.
Mr Byfield appeared perplexed when asked why his mother would care for X when he was not there and pointed out that the order was for him or his agent to care for his daughter. Mr Byfield pointed out that X would be spending time with her grandmother and defensively asked, “I can’t go on a holiday?”
Displaying no confidence at all in Ms Byfield’s intentions, Mr Byfield believed Ms Byfield tried to create scenes to alienate X from him. He described this as very challenging and frustrating for somebody who was trying to be a devoted father and for somebody who was a public servant who saw this stuff all the time. Wryly, he said that now this was happening to him.
In terms of how their communication could be improved, and how could they co-parent if X remained in City A, Mr Byfield said that Ms Byfield could not get along with him. Mr Byfield said that he wanted to try and said that he wanted Ms Byfield to move on and wanted them to have a businesslike relationship as parents. He said their joint task now should be to make sure that X was safe and was looked after. Up to this point, Mr Byfield said Ms Byfield had not done this with him despite him having gone through various different strategies and tried various different things to try to get their parenting to work together. Mr Byfield alleged Ms Byfield, aided by her solicitor, was trying not to be able to cooperate so that then they could relocate. Mr Byfield said that he was more than happy to get along with Ms Byfield.
The evidence that the Court heard from the Mother is entirely consistent with Ms D’s observations at 12.5.1. Despite being rigorously tested on this issue in cross examination, the Court remains firmly of the view that the Mother does consider it is important for X to have a relationship with her father, and will support and facilitate this if an order for relocation is made. Some of the Mother’s previous actions were probably inconsistent with this. The Court will find that the Father had, historically, a good reason to suspect that the Mother was not facilitating and encouraging X’s relationship with him. Since orders have been made, however, there is no evidence of any such lack of willingness.
Ms D’s observation of the Father’s hostility and suspicion about the Mother, in 12.5.2, is consistent with the evidence before the Court. Moreover, it was palpable from his evidence, and the way he presented his case, and in particular his closing submissions, that the Father actively remained hostile and suspicious about the Mother’s ability to encourage X’s relationship with him.
The Father’s perplexation, referred to at 12.5.3 about the issue referred to, was evident in his case. The Father’s lack of confidence in the Mother’s intentions, and his belief that the Mother had sought to alienate X against him, and would continue to do so, referred to at 12.5.4, remained the case during his evidence.
Turning to 12.5.5, with its reference to communication issues, and the need to have an open “business like relationship as parents”, what was palpably clear to the Court, and surely must have been apparent to the parents, especially the Father, was that the parents cannot communicate, they do not have a business-like relationship as parents, and, from the Court’s perspective, there is no reasonable prospect that this will ever be developed in the future. The prognosis in this regard is bleak. The Court is prepared to accept that the Father would like to get along with the Mother, but the history of this matter, and the totality of the evidence before the Court, indicates that unless he is able to divest himself of the deep seated hostility, suspicion, and lack of trust that he has for the Mother, he will never be able to achieve this. The same applies in relation to the Mother.
Ms D considers the likely affect in any change in X’s circumstances. At 12.6.1 she states:
X would be particularly distressed by any lengthy separation from her mother. However, this is not being suggested. While being separated for longer periods from her father would overtly distress X less, such separations would not develop and maintain their relationship or allow Mr Byfield to participate in all facets of his daughter’s life.
The Court has difficulty understanding, and accepting, Ms D’s comments in this regard. The Court’s concern is that she has, perhaps, isolated the potential adverse effects of change in X’s circumstances, from the benefits of change. The Court’s greatest concern, as foreshadowed earlier in these reasons, is creating an environment in which X can be shielded from, as much as possible, the toxic conflict between her parents. Probably because Ms D had not fully understood the intensity of this parental conflict, she may not have turned her mind to the benefits to X of creating greater distance between her parents.
Ms D considered issues of practical difficulty and expense. She refers to research, pointing out the importance of geographical proximity, the relevance of parents being able to work cooperatively, and the importance of a child focused arrangements. Ms D observed that the mother’s proposal did seem to involve additional travel and associated expense for the Father, but also acknowledged that from X’s point of view, she may not be asked to do more travel than she already has been. Ms D correctly, the Court notes, observed that the travel commitments may present issues for X as her social life develops more, a consideration that applies as much to whether she remains living in the City A area, or relocates to the Town B area.
The Court notes with interest that the evidence did indicate that X has been travelling regularly from City A to the Town B, and there was no evidence to suggest that she was not coping with the physical and emotional consequences of this.
Ms D considered the capacity of each parent, and any other person, to provide for X’s needs, including emotional and intellectual needs. This is an important issue, from the Court’s perspective. Each of the relevant paragraphs of Ms D’s report will be considered and observations made.
At 12.8.1 Ms D records:
Ms Byfield said she tried to keep X out of the dispute, had tried to keep X happy and beautiful and kind and said that she was trying to move forward. Ms Byfield said that she was certainly not in a new relationship, asserting that her daughter was her priority. She said a new relationship at this stage was the last thing on her mind. Ms Byfield said she was very careful not to put Mr Byfield down to their daughter but expressed concern that as with her, Mr Byfield did not show any empathy. She said when they were together, she could be upset but Mr Byfield could not show any empathy. She surmised that this was because of his job. Ms Byfield that she had just wanted Mr Byfield to spend time with X and do things with her.
There is no evidence before the Court that is inconsistent with the Mother’s assertion that she tried to keep X out of the dispute. There is no evidence to suggest that the Mother’s assertion that she is very careful not to put Mr Byfield down to their daughter is incorrect. The Mother’s assertion that the Father did not show any empathy is noted. All the Court can observe is that Mr Byfield’s presentation at Court could not be described as empathetic. He was unable to understand how his words, actions and attitude might cause others to respond, particularly the Mother, but also X. This does not necessarily detract from the Father’s capacity to parent X, but it does raise concerns about his understanding of the complexity of parental and family relationships, and the interconnectivity of actions, words and attitude.
At 12.8.4 Ms D, observes to the father:
In Mr Byfield’s opinion, X had a “fantastic” relationship with him. He described his daughter as an absolute joy to be around and described her as so clever and switched on. Mr Byfield said this was why he had faith in the fact that their close bond was not going to be broken by a move to Town B being allowed.
The evidence is consistent with this. There is no doubt that X’s relationship with her Father brings joy to him, and to her. The Court notes that the Father did not challenge Ms D on the last sentence at 12.8.4. The Court accepts that he must have either said, or created the impression to Ms D, that the strength of his relationship with X would survive a relocation. As it turns out, and consistent with all of the evidence before the Court, the Court agrees.
12.8.5 states:
Displaying a fun side, Ms Byfield said she and X would have debates every night about who loved each other more. Ms Byfield said she posed appropriate boundaries and rules. She said X would often return to her with no shoes on and said X was only just returned with shoes apparently because her father found a pair on the beach. Ms Byfield said that she used to initially send stuff for X but said Mr Byfield would keep retaining it.
The reference to shoes is, once against, a reference to what the Court will find was an ongoing problem for X as she moved between her parent’s homes. This will be discussed below.
At 12.8.6 Ms D records:
For the Wednesday midweek visits, Ms Byfield said that one of her concerns was that Mr Byfield had only picked X up twice from school and rather got his mother to do the pick-ups. When X was in her father’s care, Ms Byfield alleged that often she would be dropped back to school late. Ms Byfield said that she walked X into school every morning to ensure that she was settled. She said that this was the best way for X to start the day. In the afternoon X would usually go to after school care or a friend would pick her up or she would try to pick her up herself Ms Byfield said that X had told her that on the Thursday mornings she had stayed with her father every night when she got up, her father would not be in the house. Ms Byfield said that when they were together, Mr Byfield used to go the gym at 5:00 a.m. and then go straight to work. She surmised he had continued this practice. X had told her that her grandmother would get her ready for school or she would try to get ready herself.
With the benefit of having heard all of the evidence the Court is able to make a number of findings in relation to the matters identified in this paragraph. It is highly likely, despite the Father’s assertions to the contrary, that on average the paternal grandmother collected X from school more often than not. It is possible that X has been taken to school late, but there is no evidence to suggest that the frequency was anything like that suggested in the Mother’s case. Curiously, the Mother presented no evidence from X’s school about the lateness issue. The Court infers that this evidence would not have assisted her contention. It is more likely than not that the Father would not take X to school on his workdays, as he would leave home as early as 4:30am. This was the Father’s partner’s own evidence. It is not inconsistent with the Mother’s evidence of what he did during the relationship. For all practical purposes, this means that the Father could only ever have taken X to school on those mornings when he was not working.
The Court notes the Father’s concern, expressed at 12.8.9, about X’s horse riding. This reflects differences in parenting styles and interests. All the evidence before the Court suggests that X very much enjoys a lifestyle that involves horses and horse riding, as well as other farm animals.
At 12.8.10, Ms D records a number of important concerns expressed by the Father:
Mr Byfield said that he was sure that X was being well looked after by her mother and said he was certainly not raising any physical care concerns. He said his primary concerns were how Ms Byfield behaved towards him in front of X, commenting that he did not think that she understood the impact this had on their daughter. He was also concerned about Ms Byfield’s behaviour during his phone calls to X which were to be between 5:30 p.m. and 6:30 p.m. on Sunday, Monday and Wednesday. Mr Byfield said that he would ring Ms Byfield’s phone and she would usually answer and put X on straightaway. He alleged Ms Byfield coached X during phone calls and said using facilities such as FaceTime made this worse. He said during phone calls, X would struggle to answer any questions without getting the okay from her mother regarding what she should say. He described this as a control thing that Ms Byfield had and said he had tried video calls to prevent this to no avail and said he could see X looking really uncomfortable and said that this actually made it worse. Mr Byfield said he now kept phone calls really brief so that X would know that he was thinking of her. He said he would just ask her how her day had gone and tell her when he was going to see her next.
The Court will, in fact, find that there were periods when the Mother was indeed controlling of X’s relationship with her Father, both in terms of time spent, as well as communication. The Court will find that she, subjectively, believed that these restrictions were necessary in order to protect X from the risk of psychological harm in her father’s care. The Court will find that there was little objective basis for the Mother’s concern. It should be noted that the Mother’s case was that the Father was controlling of her. This will be discussed below. There is no doubt that she experienced the Father as controlling and coercive. In reality, the Court will conclude, that as the parental relationship deteriorated, the parents became engaged in a quasi-power struggle in relation to X. They became increasingly entrenched in parental conflict, fuelled by an inability to communicate, chronic lack of trust, and possibly exacerbated by the involvement of other family members, certainly the paternal family but possibly even the maternal family. This toxic environment was fertile territory for a power struggle to take place.
Ms D considered at 12.9 the maturity, sex, lifestyle and background of the child in either of the child’s parents, etcetera. She noted that X impressed as functioning at age appropriate level, and was obviously a very loved and cared for child. She observed, “While both parents have different backgrounds and personalities, they both have a lot to offer their only child”. The totality of the evidence before the Court indicates the insightfulness of this observation. X’s parents are very different. They have different things to offer X, from which she will only benefit in her life. From the Court’s perspective, this would be greatly enhanced if they could improve their relationship between them but, regrettably, there is little prospect of that.
At 12.10 Ms D considered issues of parental attitudes. She writes:
Ms Byfield impressed as a responsible, caring parent who said she did not want her daughter to be excluded from anything and just wanted her to be a normal beautiful girl and have the same opportunities as everybody else. Ms Byfield said that she had an amazing upbringing herself and wanted this for her daughter as well.
When they were together, Ms Byfield said that she would always take X to the park and do things with her including going to horse shows. She noted that X loved horses and riding and said that they went to a lot of competitions. Ms Byfield said that she did show jumping. She said Mr Byfield did not know anything about horses. Ms Byfield noted that X loved riding and had already competed and won a lot of prizes. She said her daughter attended Pony Club. She said that they would go to Town B the other weekend but said when they had to ride at Sydney Royal for example, they would meet her father there.
Mr Byfield impressed as a concerned, interested parent keen to be involved in all facets of his daughter’s life and to expose her to a range of activities.
The Court accepts the description Ms D gave of both parents. What is missing, however, is an appreciation by Ms D of the nature and depth of the parental conflict, and of its toxicity. Had she been aware of this, the Court believes it unlikely that she would not have said something about parental attitudes. As will be seen from the evidence, there is ample evidence to cast a shadow of doubt over the attitudes of both parents, albeit in different ways, about their responsibilities as parents.
Ms D correctly observed at 12.11 that there was no family violence order that applied at the moment. She also accepted that it would be preferable, both emotionally and financially, for the Court to make orders that are least likely to lead to the institution of further proceedings.
At 12.14 Ms D considers any other factual circumstance that the Court may think is relevant. Interestingly, here Ms D identifies communication issues. Ms D records:
Both Ms Byfield and Ms E referred to their communication problems at changeovers. If there were any issues concerning X, Ms Byfield noted that she and Mr Byfield and his mother could not communicate at all. On occasions when she had asked if X had been OK during the visit, Ms Byfield said that the grandmother just would not respond.
Ms Byfield said that she had tried to talk to Ms E at changeovers but said that often when she greeted her, she would not respond. When she commented Ms E that there was no need to be rude, Ms Byfield said she responded, “I’ve got nothing to say to you,” in an angry manner. Ms Byfield noted that this had been in front of X. Ms Byfield noted that Ms E sent her a text message last year saying, “You’re so rude, you’ve got no heart.” Ms Byfield said she would never behave in such a manner, noting that even though they had never been friends, she would never behave in such a manner.
Currently at changeovers, Ms E said she had chosen not to speak to Ms Byfield because if she did, this would give Ms Byfield an opportunity to say things that she should not really be saying, making accusatory or derogatory comments. Describing it as quite atrocious, Ms E said that Ms Byfield would yell things at Mr Byfield in McDonald’s in front of people including X, including why X did not have shoes on for example. When X clung to her mother, Ms E attributed this to Ms Byfield not wanting X to leave her. Ms E said that the clingy one was not X but was rather her mother. In Ms E’s opinion, even if Ms Byfield said “hi”, it was not genuine because there was always something “behind that hi”.
If Ms E was going to continue to be involved in changeovers, she and Ms Byfield must improve their behaviour, particularly in front of X.
The Court finds unequivocally, that the parents cannot communicate with each other. Neither parent contended to the contrary. Their inability to communicate at changeovers was not an issue in dispute. The Court will find that the involvement of the paternal grandmother neither improved, nor made the situation worse. It is regrettable that the suspicion, and lack of trust of the parents, extended to the paternal grandmother. Ms D’s suggestion that the paternal grandmother and mother must improve their behaviour, whilst self-evident, is not likely to occur. The Court will need to consider the validity of the Father’s assertion about the Mother’s behaviour at changeover in due course.
At 12.15 Ms D examines the mother’s proposed relocation to Town B. Ms D reports at 12.15.1 – 12.15.6:
While the parties in this matter dispute how much involvement X has had with her father in the past and the reasons for any lack of involvement, a primary consideration in this relocation dispute must be the benefit to X of having a meaningful relationship with both of her parents and the Court will need to consider whether the proposed relocation will impede X’s ability to maintain her relationship with her father. If Ms Byfield is permitted to move, she will inevitably assume a greater role in presence in X’s life and X’s time with her father will consequentially become less frequent and less regular. X’s relationship with her father will suffer because of the distance and possibly because of difficulties between the parties in communication.
As always, the question of relocation is a vexed one. Austin (2008) commented “Courts have always noted the difficulty of trying to reconcile competing issues and claims posed by relocation (p138)”, before going on to promote the need for an individualised case-by-case approach as well as an assessment of the risks and benefits.
Whatever the Court decides in this matter, one or other of the parties will understandably feel aggrieved. Both are very committed to their viewpoints and wishes. As I understand it, Ms Byfield’s wish to relocate was based on a lifestyle wish to be closer to her father and extended family. In her case outline, Ms Byfield argued she “will have greater financial independence, less emotional stress, greater support in the mother and the child will be able to share their mutual hobby of horse-riding”. To facilitate her move, Ms Byfield anticipated being able to gain a good job. However, while living in City A for many years, Ms Byfield has been able to maintain close bonds with her family, pursue her hobbies and work in a suitable job. Although during her interview Ms Byfield focused on historical instances of domestic violence between her and Mr Byfield, she did not base her wish to move to me on Mr Byfield’s actions.
In considering Ms Byfield’s wish to relocate, the Court might also focus on her right to freedom of movement and must weigh this up against X’s best interests. From the accounts of both parties, it would certainly appear that to date, Ms Byfield has been well able to pursue the demands of her hobbies. An additional factor must be the impact on Ms Byfield’s mental health if her wish to relocate is denied and the impact on her parenting. In my opinion, Ms Byfield impressed as a resilient, resourceful young woman who albeit reluctantly would cope with such an adverse outcome, particularly given her commitment to her only child’s happiness. Her test results at Attachment 1 indicated she had an extensive social support system.
Mr Byfield was strongly opposed to X relocating, arguing this will adversely impact his ability to spend time with his daughter and be involved in all facets of her life. Because of his job, Mr Byfield said he could not relocate to the Town B area or indeed any further from Sydney than City A.
In my opinion, it is important that children experience a variety of types of time with both parents and that they are involved in all areas of their lives. Smyth (2005) promotes the importance of “being-in-the-moment time” for children with their parents and further considered that “patterns of care after separation that allow children to experience fluid, meaningful time with each parent are important for children’s and parents’ well-being (Smyth, 2005, p4)”. Smyth went on to argue that children do best when they experience a multiplicity of types of time with both parents with ongoing and frequent contact with parents who can contain their conflict.
Ms D is undoubtedly correct in asserting that the Court will need to consider whether the proposed relocation will impede X’s ability to maintain her relationship with her father. To the extent, however, that she intimated that relocation will necessarily make this more difficult, the Court observes that the answer is far more complex. In any event, the context of what the Court is concerned is a highly dysfunctional parental relationship needs to be considered, and the Court doubts that Ms D has done so in her report. Moreover, the alternative to not allowing relocation, and the potential adverse impacts of this, is another factor that Ms D did not appear to have adequately considered in her report. Moreover, just because on a relocation scenario the Mother will assume a greater presence and role in the child’s life, it does not necessarily follow that X’s relationship with her father will suffer. Ms D herself noted the Father’s belief that his relationship with X would survive a relocation to Town B. As it turns out, there was admissible evidence before the Court of the Father’s conditional agreement for X to relocate with her mother, thus confirming his own belief that his relationship with X would not suffer.
At 12.15.3 Ms D referred to the Mother’s “historical instances of domestic violence between her and Mr Byfield”. Even if it were the case that the mother did not base her wish to relocate on what the Father did, with great respect to Ms D, describing the Mother’s family violence allegation in such terms runs the risk of minimising the significance of, and the potential enduring impacts on a victim, of historical family violence.
At 12.16 Ms D responded to the term of reference that asked her to provide an assessment of the parent’s capacity to provide a safe and nurturing home environment for the child. The Court notes Ms D’s comments in this section, having regard to the totality of the evidence, there are no issues about parental capacity to provide a safe and nurturing home environment, except as regards their respective capacity to protect X from the toxic parental conflict that exists between them. As will be seen below, the Court will conclude that the Mother has a much greater capacity than the Father to do so.
At 12.17 Ms D was asked to assess the quality of the relationships between X and her parents. The Court accepts Ms D’s assessment that X’s primary attachment was with her mother. At 12.17.1 Ms D observes:
“… there are subtle suggestions that she was experiencing some anxiety that her time with her mother was being threatened by this dispute.”
Based on the evidence, the Court concludes that if there was some anxiety manifested by X, it was not significant, and what Ms D described as “an alternative hypothesis” that X was anxious about the conflict between her parents, is more likely to be correct.
At 12.18 Ms D deals with parenting style and the extent to which the difference would impact on X changing residences. Ms D correctly identified that both parents are devoted to X and related well to her during observations. The Mother expressed some concerns that the Father doesn’t actually talk with X but questions her. Ms D seemed to dismiss this. There is no evidence to support the Mother’s contention.
At 12.19 Ms D assessed the level of communication and animosity between the parents and the impact that this would have on X, and on the issue of parental responsibility. In this section, Ms D records the Mother’s assertion: “Their communication was 100% non-existent”. The Father went on to say, “He could not communicate at all with Ms Byfield … there was no communication whatsoever”.It is interesting, the Court notes, that given these uncontested facts, Ms D did not further consider the impact of this on X, let alone the broader issues before the Court.
At 12.20 Ms D was asked to consider whether parental responsibility ought to be shared or sole. At 12.20.2 Ms D records:
In my opinion, any decision about whether parental responsibility is shared or joined should be predicated on whether the Court decides the parties should manage a shared arrangement in City A or whether X and her mother could relocate to the Town B area. In the first instance shared parental responsibility would be appropriate and, in the latter, Ms Byfield should assume sole parental responsibility.
The Court notes Ms D’s recommendation but is concerned that Ms D has failed to appreciate the enormity of the dysfunction in the parental relationship, manifested by lack of trust and inability to communicate.
At 12.21 Ms D assesses the extent of the history of the family violence between the parents and the impact this has had on X. The issue of the violence in this relationship is complex, and has been a difficult one for the Court to decide. Ms D states at 12.21.1-4 as follow:
In terms of any violence between them during their relationship, Ms Byfield described Mr Byfield as “very bullying” and described his behaviour as really quite controlling. Throughout the years, she said that there had been some physical violence and that on a couple of occasions, Mr Byfield had told her that he had felt like throwing her off the balcony and had pushed her up against the wall. She said he had not actually punched her. Ms Byfield described Mr Byfield as being really quite strong and forceful and said he would not talk to her but rather tell her what he wanted. Most of the time, Ms Byfield said she just agreed with whatever he wanted unless it was outside what she had really felt. Ms Byfield described herself as always having been quite laid back but described Mr Byfield as having been really quite narcissistic. After she had X, Ms Byfield said she decided to stand up for herself rather than just be so compliant with Mr Byfield and said that he did not like this.
Because she was a professional, during her relationship with Mr Byfield, Ms Byfield managed their finances. Commenting that there had been “financial violence” as well, Ms Byfield noted that Mr Byfield started taking a lot of money out of their account. When she first met Mr Byfield, Ms Byfield said that he had been unemployed and said that during the relationship he did some part-time work as a labourer.
Over time, Ms Byfield said the relationship became more and more aggressive and violent and said that there was an Apprehended Violence Order (AVO). She said the AVO was complex because Mr Byfield now worked as a public servant with Employer O. Indeed, Mr Byfield advised Ms Byfield’s interim AVO was dismissed.
According to Mr Byfield, there was no violence at all between him and Ms Byfield during the relationship. He said that there was no physical violence including pushing and said that the only emotional violence perpetrated was that he was extremely controlled by Ms Byfield through their daughter.
The evidence will be discussed below, having regard to these observations.
At 12.22 Ms D reports on the amount of time that X should spend with each parent, if they were living primarily with the other parent. She states at 12.22.1 – 12.22 -2 as follows:
If X remains in the City A area, in my opinion, she should continue in the current regime for the next 12 months until she is seven and then add a night a year to the time she spends with her father until a week about arrangement is achieved. If possible, the parties should cooperate by being mindful of X’s pony club schedule in deciding which weekends she should be with each parent. X should immediately begin spending half of each school holiday period with each parent with consideration being given to the Christmas holidays being in week or two-week alternating blocks of time, depending on her parents’ preferences.
If X relocates to the Town B area, in my opinion, she should spend three nights alternate weekends with her father, alternating the weekends between City A and Town B. She should also spend half of each school holiday period with each parent as recommended previously.
At 12.24, and in response to an invitation to address any other matter that Ms D saw as relevant, Ms D states at 12.24.1 – 12.24.3:
The parties in this matter are engaged in a bitter dispute and both are doing their best to promote their own wishes and viewpoints, to the extent that at times their behaviour has been unwise. This included Ms Byfield enrolling X in school in Town B without consent and Mr Byfield arranging for his mother to assume X’s care while he went overseas on holiday without any advice or discussion with Ms Byfield. It was surprising that Ms Byfield omitted to advise that not only did she knew Ms F but that she had lived with her for three and a half years whereas to me she intimated that she barely knew her at all. It was also concerning that she did not tell me that the night before the interview she had told Mr Byfield that she was proposing taking X to an independent psychologist.
Both parties are intelligent, concerned people who hopefully will behave more appropriately and be better able to cooperate without the pressure of this relocation dispute. Encouragingly, X was very relaxed talking to father about activities with her mother, appearing unaware of any tension or conflict between her parents.
The Court must weigh up the parties’ competing proposals and the key issue of Ms Byfield’s wish to relocate. In making my recommendation that X should remain in the City A area, I am primarily mindful of the need for X to maintain and further develop her relationship with her father, and secondarily with her paternal grandmother as well as the onerous travel involved should she relocate. The Court must consider the veracity of Ms Byfield’s concerns about domestic violence during the relationship and around the time of separation. In my opinion, any abuse in this matter has been separation instigated violence and while no violence is acceptable, neither parent presents any risk to the children now. No violence is acceptable and change over arrangements must ensure X is not exposed to any conflict between her parents or indeed to ongoing tension between her mother and paternal grandmother.
The Court notes with interest that in the closing stages of the report Ms D appears to manifest some insight into the intensity of the parental dispute, and refers to it as a “bitter dispute” in which both parents “are doing their best to promote their own wishes and viewpoints …”. She correctly identified both parents as intelligent and concerned but, having had the benefit of four days with these parents in Court there is no reasonable basis for Ms D’s hope that they “will behave more appropriately and better able to cooperate without the pressure of this relocation dispute”. The parents’ behaviour existed before the relocation dispute arose, and the prognosis for an improvement in the parental relationship is a very poor one.
In recommending against relocation, the Court will ultimately find that Ms D placed too much weight on the need for X to maintain and further develop her relationship with her father, and with the paternal grandmother, and insufficient weight to the intensity of the parental conflict, the risks that this presents to X, and the disadvantages of keeping the parents geographically proximate, from X’s perspective.
Finally, Ms D’s recommendations are found at 13.1, as follows:
On balance, I respectfully recommend that
a. The parties have joint parental responsibility for X
b. That X remains in the City A area
c. That X continue in the current regime for the next 12 months until she is seven and then add a night a year to the time she spends with her father until a week about arrangement is achieved. If possible, the parties should cooperate by being mindful of X’s pony club schedule in deciding which weekends she should be with each parent. X should immediately begin spending half of each school holiday period with each parent with consideration being given to the Christmas holidays being in week or two-week alternating blocks of time, depending on the parties’ preferences.
Ms D was cross-examined on the first day of the hearing, 3 October 2019. The following points emerged from cross-examination:
·On the issue of equal shared parental responsibility, Ms D agreed that exposure to parental conflict is detrimental to children, that the conflict between the parents was high, and that this was relevant in considering whether the parents could make joint decisions.
·Ms D accepted that if the Court found that there had been family violence, or coercive and controlling behaviours, it would also be relevant to the question of parental responsibility.
·If the evidence indicated that the parents were unable to discuss matters in relation to X, let alone in a business like fashion Ms D agreed that equal shared parental responsibility would be very difficult, from X’s perspective.
·Ms D agreed that she had not explored with the paternal grandmother, or the Father, the details of their pattern of care involving X, or the Father’s work hours or how X would get to school when in her father’s care.
·Ms D agreed that despite the Mother’s allegations about family violence, her view was that it did not have an impact on her recommendations, as she described it as situational, that is at the date of separation. She accepted, however, that the Mother in her trial affidavit gave a history of allegations of violence commencing from 2011. She accepted, in those circumstances, it was unfair to categorise the Mother’s allegations as being situational family violence. When it was put to her that in reality the Mother’s evidence showed an ongoing pattern of family violence, Ms D said the Court needed to look at the details of the allegations historically, the Father’s denials, whether escalation took place at the date of separation, etcetera. She was not satisfied that it was necessarily an ongoing pattern. It would have less relevance and significance if it was the situation. However, if the Court found that there was in fact a long history, suggesting the Father had a propensity for family violence, but denied and took no responsibility for the same, that would be significant. Ms D accepted that it was the Court’s role to examine the issues of veracity carefully. It was important for X to be protected from exposure to parental conflict.
·Senior Counsel for the Mother referred the expert to 12.24.1. Here, Ms D expressed concern that the Mother had not told her that the night before the interview she had informed the Father that she was proposing to take X to an independent psychologist. The context of the paragraph could easily have created the impression that Ms D was concerned about unilateral decision-making by the Mother, with her concerns that the Mother had unilaterally enrolled X in school in Town B without consent. When challenged about this in cross-examination Ms D also explained that the Father’s concern was that this had been raised by the Mother the night before the report interviews. Ms D’s concern was that the Mother had not told her that she was proposing to do this – indeed didn’t raise it at all. Ms D explained that it would have assisted her to further understand the Mother’s approach to parenting X. Specifically, Ms D’s concern was that the Mother saw X’s problems as belonging to her, and not X. She thought it was quite appropriate for the Mother to discuss her concern with the other parent, and to reflect on the source of the child’s problem, but it should have been mentioned to the expert. The Court believes that the Mother should have disclosed this to Ms D, but the fact is that she did raise it with the Father. What Ms D was not aware of, because this evidence did not come out until the Father was cross-examined much later in the hearing, is that the Father actually agreed with the Mother’s proposal that X should see an independent psychologist. However, because of the fact that he could not communicate with her, he felt there was nothing he could do to actually make it happen. The self-evident tragedy in this case becomes starkly apparent. Given that the interviews with Ms D occurred on 25 July 2019, and the Mother’s text to the Father raising the issue of X seeing an independent psychologist was raised on 24 July 2019, and despite the fact that the Father actually agreed, as at the last day of the hearing, 28 November 2019, they had not been able to implement something that they agreed to, and which was clearly in X’s best interests, many months later. Ms D’s concern, therefore, that the Mother failed to disclose this to her, pales into insignificance, given this glaring example of how the parents’ chronic inability to communicate was having an adverse impact on their daughter. They could not even implement something that they agreed to.
·Ms D agreed that a threat a to remove a child, or the actual removal of a child without notice, could be construed, and experienced, as coercive and controlling behaviour.
·Ms D agreed that given the high level of conflict in this case, any suggestion of equal shared care was contra-indicated.
·Ms D did consider it significant that X was comfortable to mention the Mother in conversation with the Father, but the reverse was not apparent from the Report interviews. If the reverse were true in reality, as opposed to the artificial environment of the Family Report interviews, Ms D explained that this might go to X’s sense of whether she was comfortable in her Mother’s home to talk about her experiences with the Father.
·The Father cross-examined Ms D about 11.8 of her Report where X reported about what she did with her Father. She accepted that if X’s account was incorrect, she would link this to X’s fear that she was going to be separated from her mother for longer periods of time. Thus, for example, it was suggested X was uncomfortable saying positive things about what she did at the Father’s house, and her relationship with the Father’s partner, Ms F. Ms D noted that Ms F’s affidavit presented a very different picture about his relationship with her. The Court observes the potential significance of this evidence. If X presented a negative view of her time with her Father, and the Father’s partner, this was not necessarily referable to the Father’s implied contention that the Mother was not supporting his relationship with X. Rather, Ms D’s suggestion is that it reflected X’s fear of being separated from her mother. This, the Court notes, is unsurprising, given X’s close attachment to her mother.
·Ms D accepted that a two-week gap between visits with her father is a significant time for a six year old girl. It limits her ability to be incorporated into her father’s parental lifestyle. However, she explained, from X’s perspective the quality of her time with her parent, is as important as the quantity of time.
·The Father asked Ms D whether she felt that the Mother and he had the capacity to develop a business-like relationship as parents. Ms D explained that one would have to be an optimist in this regard. It takes both parties. One of the parents would have to cope with their response to the outcome of the case. It is something that should have occurred before now.
That the Mother and the Child be permitted to reside in the Town B District.
The Child shall live with the Mother.
The Child shall spend time with the Father;
4.1During school terms in a four-weekly cycle (with Week 1 commencing on the first Monday after these Orders are made) as follows:
Week 1 –
4.1.1From the conclusion of school Friday until the commencement of school Monday.
Week 3 –
4.1.2From the conclusion of school Friday until the commencement of school Monday, or alternatively;
4.1.3Should the Father provide the Mother with ten (10) clear days written notice, from 8:00pm Friday until 3:00pm Sunday.
School Holidays
4.2During the term 1 and 3 school holiday periods, if the Father was ordinarily to have the Child on the first weekend of the school holiday period in accordance with Order 4.1, then the Father will spend time with the Child from the conclusion of school on the last school day of the relevant term until 3:00pm on the second Saturday of the school holiday period. If the Father was not scheduled to have the Child on the first weekend of the school holiday period in accordance with 4.1 then, the Father will have the Child from 3:00pm on the second Saturday in the school holiday period to 3:00pm on the last Saturday prior to the commencement of the school term:
4.2.1During the term 2 school holiday period, from the conclusion of school on the last day of term 2 until 3:00pm on the last Saturday of the school holiday period.
4.3 During the term 4 school holiday period;
4.3.1In an odd year, commencing at 3:00pm Boxing Day and concluding at 3:00pm seven days thereafter and then on a week about basis with the Mother until the last week of the school period whereby the Child will spend time with the Mother from 3:00pm on the last Saturday of the term 4 school holiday period up to the commencement of school in term 1.
4.3.2In an even year, commencing at 3:00pm Christmas Eve and concluding at 3:00pm seven days thereafter and then on a week about basis with the Mother until 3:00pm on the last Saturday of the school period where the Mother will then have the Child up to the commencement of school in term 1.
4.3.3All changeovers pursuant to Orders 4.3.1 and 4.3.2 to occur at 3:00pm.
4.4 Such other times as may be agreed between the parents in writing.
GENERAL ORDERS operating DURING THE COURSE OF THESE ORDERS
Other than for time occurring pursuant to orders 4.1.3, 4.2 and 4.3 If any order herein provides for a parent’s time to conclude or commence at the conclusion of school or commencement of school, then changeover shall occur at the Child’s school, except in circumstances where changeover does not fall on a school day in which case changeover is to occur at Town B McDonalds or such other place that the parties might agree in writing.
If any order herein provides for a parent’s time with the Child to conclude at the commencement of school and the relevant day is not a school day, the parent’s time will conclude at 9.00 am on that day.
If any order herein provides for time with the Child to commence at the conclusion of school and the relevant day is not a school day, the parent’s time with the Child shall commence at 3.00 pm on that day.
Subject to Order 5, where time is to occur with the Father in accordance with Orders 4.1.3, 4.2 and 4.3, changeover is to be facilitated at City A McDonalds.
If the Father is spending time with the Child in accordance with Order 4.1, and there is a public holiday;
9.1On the Friday that the Father’s time is ordered to commence, then the Father’s time is extended to commence at 8:00pm on the night before with changeover at Town B McDonalds; or
9.2On the Monday immediately after the Sunday that the Father’s time was ordered to conclude, then the Father’s time be extended to 3:00pm on that Monday with changeover at Town B McDonalds.
PARENTAL COMMUNICATION
That, for the purpose of facilitating communication between the parents, each parent shall communicate regarding the Child via or such other application or website as the parties agree in writing (“the website”), except in the case of emergency.
To facilitate the preceding order, within 7 days of the making of these Orders, each parent will establish a parent account on the website and shall do all things necessary, including paying any necessary fee, to enrol in the program for a one year subscription by completing the online signup process AND shall thereafter, conduct all parental communication using the website’s features save for communication which must be acted upon in less than 24 hours.
The parties shall use Calendar, Info Bank and Expense features (“other features”) and shall use the Messaging feature only when the information cannot be conveyed in the other features.
The parties shall not communicate by telephone or text message except regarding matters of an emergency nature regarding the Child that must be acted upon in less than 24 hours, and in the case of such emergency, the parties shall record the subject and content of the communication by a journal entry in the calendar feature of the programme.
That, unless otherwise agreed in writing, or further Order of this Court, each parent will renew and keep current their subscription to the program during the Child’s minority.
COMMUNICATION WITH THE CHILD
That each parent facilitates the Child having liberal telephone or video call communication with the other parent:
The parent who has care of the child shall facilitate the child speaking with the other parent upon the child’s request to do so but calling the other parent’s mobile telephone; and
Unless otherwise agreed, each Tuesday, Thursday and Sunday at between the hours of 5pm to 6pm with the parent who does not have care of the child telephoning the mobile telephone of the parent with whom the Child is living or spending time.
That both parents refrain from making critical or derogatory remarks about each other or members of each other’s family or household in the presence or within the hearing of the Child and shall immediately remove the child from the presence and hearing or any third party who does so.
In cases of an emergency relating to the Child, communication between the parties is to take place by way of text messages or telephone call to the other parent’s mobile telephone.
That the parties shall ensure that they keep each other informed, in writing, as soon as is reasonably practical of:
20.1Any serious illness, injury or hospital admission while in that parent’s care including, but not limited to:
20.1.1The name and address of any attending medical practitioner or facility
20.1.2Date of consultation
20.1.3Diagnosis
20.1.4Treatment rendered and
20.1.5Prognosis
20.2 Any medications that have been prescribed for the Child;
20.3Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the Child;
20.4Any significant social, school or religious functions or activities which the Child is to attend;
20.5The name and date of birth of others who may reside in the same household the Child from time to time; and
20.6 Any other important matter relevant to the welfare of the Child.
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the Child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the Child directly from the treating medical practitioner, health service provider or institution.
That each parent will advise the other parent immediately in the event that the Child suffers a serious illness, injury or hospital admission while in that parent’s care.
That this Order acts as an authority of the Mother for the Father to obtain any information about the Child that he may seek from the Child’s school including, school report, curricular newsletters, school photo order forms, invitations to any school activities which parents are invited to attend and any other information the school might otherwise ordinarily release to parents of their students.
That this Order operates as authority of the Mother to the Child’s medical professionals, school or day care, sporting organisations or other extra-curricular organisations to provide the Father information that parents are ordinarily entitled to receive in relation to the child.
Notwithstanding who the child might be living with/ or spending time with each parent is permitted to attend all extra-curricular events involving the Child including but not limited to:-
25.1Extra-curricular activities or sporting events that allow for parental attendance or participation; and
25.2Any functions or events held at the Child’s school, pre-school or kindergarten that allow for parental attendance or participation.
OVERSEAS TRAVEL
That the parties will, within 14 days of a written request from the other party do all things reasonably required to obtain and/or renew a Passport for the Child.
That the costs of any Passport Application or renewal be borne equally between the parties.
Both parents are permitted to travel with the Child outside of the Commonwealth of Australia provided that:-
28.1.The parent proposing the holiday will notify the other parent, in writing, at least 60 days prior to the departure date of such proposed trip of the following:-
28.1.1. The dates that the parent intends to travel with the Child;
28.1.2. Details of where the parent intends to travel with the Child; and
28.1.3.A contact phone number on which the other parent can contact the Child while she is overseas;
28.1.4. Copies or details of any proposed itinerary
28.2.The parents are restrained from causing the child to travel to or through any country that has been deemed by the Department of Foreign Affairs and Trade as “Do not travel” or “Reconsider your need to travel” or equivalent.;
28.3.The proposed travel is not to occur outside of time the Child would otherwise be spending with that parent unless express written consent is given by the non-travelling parent;
28.4.The non-travelling parent must indicate their consent or otherwise to the proposed travel in writing within 28 days of receiving written notification of the proposed travel and may not unreasonably refuse their consent to the Child's proposed travel;
28.5.If the proposed travel is consented to, the parents must then do all things necessary and provide any necessary consents for the Child to obtain any travel authorisations and/or visas that may be required by the intended destination countries;
28.6.That at least 14 days prior to the Child’s departure the parent travelling with the Child will provide the other parent with:
28.6.1. A final itinerary including contact telephone numbers and full street addresses of where the Child will be staying; and
28.6.2. Copies of return airline tickets and details of flights or other departure means; and
28.7.In the event that the parties agree to the child travelling overseas during any time that the child would otherwise be living with/ spending time with the non-travelling parent, the Child will spend additional time with that parent to make-up for any time missed with such make-up time to occur prior to and/or following the Child travelling overseas as agreed in writing by the parents and in any event within 60 days of the Child’s return to Australia.
28.8.That in the event that the Father intends to travel outside of the Commonwealth of Australia with the Child, the Mother will provide the Father with the Child’s passport at least 20 days prior to the notified date of departure and the Father will return the Child’s passport to the Mother within 7 days of the child’s return to Australia.
28.9.Subject to Order 28.8 the child’s passport will otherwise be retained by the Mother.
IN THE ALTERNATIVE
Should the Orders not enable the Child to reside with the Mother in the Town B District in accordance with Orders 1 or 2, then, Orders 4.1 is to be replaced with the following;
30.1 In alternating weeks;
30.1.1Week 1: From the conclusion of school Friday until the commencement of school Monday; and
30.1.2Week 2: From the conclusion of school Wednesday until 6:30pm with the Child to be dropped to the Mother at City A McDonalds.
NOTATIONS
A.A standard week commences and concludes on Monday.
B.Should a school holiday period fall within a Week 1 or 3 in accordance with Order 4, that week is taken to have occurred.
C.The first week following a school holiday period will be counted as the next week following the week that occurred when the holidays commenced. For example, if the school holidays commenced within Week 2, the first week of term will be counted as Week 3.
D.Where these orders call for either party to provide notice or consent in writing the sending of a text message to the other parent’s phone or an email to the other parent’s address will be sufficient to discharge that obligation.
Minute of order proposed by the Respondent Father
IT IS ORDERED ON A FINAL BASIS:
That the parties shall have equal shared parental responsibility for the child X born … 2013.
FROM THE DATE OF THESE ORDERS ARE AGREED UPON
The child lives with the mother and father and attends Town C Public School, or another school within the Region M, agreed upon in writing by both parties.
The child spend time with the parents as follows:
Unless otherwise agreed between the parties, from Term 4, 2019, the child spend time with the father as follows:
4.1In a two-weekly cycle during the school term with Week A commencing week 1 of term.
Week A –
4.1.1From the end of school (or 3.00pm) on Friday until the commencement of school (or 9.00am) on Monday.
Week B –
4.1.2From the end of school (or 3.00pm) on Wednesday until the commencement of school (or 9.00am) on Thursday.
4.2From the commencement of Term 1, 2020, every second week, commencing in week 2, from the end of school (or 3.00pm) on Wednesday until the commencement of school (or 9.00am) on Monday.
4.3From the commencement of term 3, 2020, the child to live with both parties on a fortnightly basis from the conclusion of school (or 3.00pm) Monday to the commencement of school Monday or 9.00am, commencing with week 1 with the father.
School Holidays
5.1From the making of these orders, unless agreed upon in writing, during the term 1, 2, 3 and 4 school holiday period, Orders 4.1, 4.2 and 4.3 are suspended and the following is to apply;
5.2During terms 1, 2 and 3 school holiday period, if the father was ordinarily due to have the child on the first Monday (or Wednesday order 4.2) of the school holiday period in accordance with orders 4.2 and 4.3, then the father shall spend time with the child from the conclusion of school on the last day of the relevant term until 9.00am on the second Sunday of the school holiday period. If the father was not scheduled to have the child on the first Monday (or Wednesday order 4.2) of the school holiday period in accordance with 4.2 and 4.3, then the father will have the child from 9.00am on the second Sunday to the commencement of school for the following term.
5.3During term 4 school holidays in odd years, the child spends, from the end of school on the final day of term 4 to 28 December with the mother, from 28 December to 4 January with the father, from 4 January to 18 January with the mother, and the remainder of the school holidays until the commencement of school, with the father. All change over times 9.00am.
5.4During term 4 school holidays in even years, the child spends, from the end of school on the final day of term 4 to 28 December with the father, from 28 December to 4 January with the mother, from 4 January to 18 January with the father, and the remainder of the school holidays until the commencement of school, with the mother. All change over times 9.00am.
5.5Such other additional times as may be agreed between the parents in writing.
Father’s Day
5.6If the child is not otherwise spending time with the father on Father’s Day, the child will spend time with the father:
5.6.1From 9.00am to 3.00pm on Father’s Day.
Mother’s Day
5.7If the child is not otherwise spending time with the mother on Mother’s Day, the child will spend time with the mother:
5.7.1From 9.00am to 3.00pm on Mother’s Day.
Child’s birthday (father)
5.8If the child is not otherwise spending time with the father on the child’s birthday the child will spend time with the father:
5.8.1From 11.00am to 3.00pm on the child’s birthday if the child’s birthday falls on a day which the child is not attending school.; and
5.8.2From 3.00pm to 5.00pm if the child’s birthday falls on a day which the child is attending school.
Child’s birthday (mother)
5.9If the mother is not otherwise spending time with the child on the child’s birthday the child will spend time with the Mother:
5.9.1From 11.00am to 3.00pm on the child’s birthday if the child’s birthday falls on a day which the child is not attending school.; and
5.9.2From 3.00pm to 5.00pm if the child’s birthday falls on a day which the child is attending school.
GENERAL ORDERS operating DURING THE COURSE OF THESE ORDERS
Unless otherwise agreed, for the purpose of changeover, unless otherwise stated or the time commences or ceases at the beginning or commencement of school, the father or his agent will collect the child from McDonald’s, Street K, Suburb L. At the commencement of the time that he spends with the child and the mother or her agent will collect the child from McDonald’s, Street K, Suburb L, at the end of the time that the father spends with the child.
If any order herein provides for a parent’s time to conclude or commence at the end of school or commencement of school, then changeover shall occur at Town C Public School, or any other school in accordance with Order 2.
If any order herein provides for a parent’s time with the child to conclude at the commencement of school and the relevant day is not a school day, the parent’s time will conclude at 9.00am.
If any order herein provides for time with the child to commence at the end of school and the relevant day is not a school day, the parent’s time with the child shall commence at 9.00am.
The time for changeover of the child during school holiday periods shall be 9.00am Sunday’s unless otherwise agreed upon in writing or specified in the orders herein.
If the child is spending time with the either parent in accordance with Order 4.2 or 4.3 and there is a public holiday immediately after the weekend the child’s time with the either parent shall be extended so that it concludes at the commencement of school on Tuesday if the public holiday is on the Monday.
Telephone contact
That the child be at liberty to communicate, whether by telephone or otherwise (video call via WhatsApp), with each parent in accordance with her wishes and each parent will use their best endeavours to facilitate telephone or other contact with the other parent.
That the father is permitted to communicate with the child by telephone or video call via WhatsApp each day that the child is living with the mother between 5.30pm – 6.30pm (in the location that the child is currently in). Unless otherwise agreed between the parents and until the father is able to telephone the child directly, for the purpose of this Order the father is to contact the mother by telephone or WhatsApp video call for the purpose of speaking with the child and the mother to will use her best endeavours to make the child available to speak with the father.
That the mother is permitted to communicate with the child by telephone or video call via WhatsApp each day that the child is living with the father between 5.30pm – 6.30pm (in the location that the child is currently in). Unless otherwise agreed between the parents and until the mother can telephone the child directly, for the purpose of this Order the mother is to contact the father by telephone or WhatsApp video call for the purpose of speaking with the child and the father will use his best endeavours to make the child available to speak with the mother.
Communication
That both parents refrain from making critical or derogatory remarks about each other or members of each other’s family in the presence or within the hearing of the child and that both parents shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about each other or members of each other’s family the presence of within hearing of the child.
That as far as possible, unless agreed in writing, communication between the parties is to take place by way of text messages or phone call which are to be restrained to issues regarding the child and be respectful and courteous.
That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:
17.1Any serious illness, injury or hospital admission while in that parent’s care;
17.2Any medications that have been prescribed for the child;
17.3Any specialist medical appointments with any medical doctors, psychologists, counsellors or therapists regarding the child;
17.4Any significant social, school or religious functions or activities which the child is to attend;
17.5The details of any school or school(s) attended by the child;
17.6The residential address of each parent and particulars of others who may reside with the child;
17.7Any school absences the child may experience for whatever reason;
17.8Any planned interstate travel either parent may have with the child;
17.9Any other important matter relevant to the welfare of the child.
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the child.
That each parent will advise the other parent immediately if the child suffers a serious illness, injury or hospital admission while in that parent’s care.
That each parent is permitted to attend all extra-curricular events involving the child including but not limited to: -
20.1Extra-curricular activities or sporting events that allow for parental attendance or participation; and
20.2Any functions or events held at the child’s school that allow for parental attendance or participation.
That these Orders authorise any school, school or child care service to communicate with and release any information to either parent in relation to the child’s educational progress including, but not limited to, providing each parent (at their own expense) with copies of school reports, newsletters, notices and school photograph order forms.
That these Orders authorise any hospital, doctor or other treating medical practitioner to communicate with and release any information to either parent in relation to the child’s health, any medical condition that the child may be experiencing and the progress of any medical treatment the child is receiving.
Overseas travel
Both parents are permitted to travel with the child outside of the Commonwealth of Australia as follows: -
23.1The parent proposing the holiday will notify the other parent in writing at least than 60 days prior to the departure date of such proposed trip of the following:
23.1.1The dates that the parent intends to travel with the child;
23.1.2Details of where the parent intends to travel with the child; and
23.1.3A contact phone number on which the other parent can contact the child while she is overseas;
23.2The parents agree to abide by any Department of Foreign Affairs and Trade travel advisories in relation to any destination country;
23.3The proposed travel is not to occur outside of time the child would otherwise be spending with that parent unless express written consent is given by the other parent;
23.4The other parent must indicate their consent or otherwise to the proposed travel in writing within 28 days of receiving written notification of the proposed travel and may not unreasonably refuse their consent to the child's proposed travel;
23.5If the proposed travel is consented to, the parents must then do all things necessary and provide any necessary consents for the child to obtain any travel authorisations and/or visas that may be required by the intended destination countries;
23.6That at least 14 days prior to the child’s departure the parent travelling with the child will provide the other parent with: -
23.6.1A final itinerary including contact telephone numbers and full street addresses of where the child will be staying; and
23.6.2Copies of return airline tickets and details of flights or other departure means; and
23.7In the event that the child misses out on spending time with the other parent as a result of the proposed travel, the child will spend additional time with that parent to make-up for any time missed with such make-up time to occur prior to and/or following the child travelling overseas as agreed by the parents and within 60 days of the child’s return to Australia.
23.8That in the event that the father intends to travel outside of the Commonwealth of Australia with the child, the mother will provide the father with the child’s passport at least 20 days prior to the notified date of departure and the father will return the child’s passport to the mother within 7 days of their return.
That before either parent makes an application to the Court for a variation of these Orders to take into account the changing needs or circumstances of the child or of the parents, the parents will do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General or the parents will participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.
That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA (2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Injunction
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