Carelli & Carelli
[2022] FedCFamC2F 296
•21 March 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Carelli & Carelli [2022] FedCFamC2F 296
| File number(s): | NCC 2436 of 2020 |
| Judgment of: | JUDGE CARTY |
| Date of judgment: | 21 March 2022 |
| Catchwords: | FAMILY LAW – final parenting orders – allocation of parental responsibility – spend time with arrangements for children with father – whether the respondent must provide applicant with details of her residential address -passports and overseas travel |
| Legislation: | Family Law Act 1975 (Cth) ss 4AB. 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65Y(1)(ii), 68B |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 248 |
| Date of last submission/s: | 15 December 2021 |
| Date of hearing: | 14 – 15 December 2021 |
| Place: | Newcastle |
| Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Wilson |
| Solicitor for the Respondent: | Russell Kennedy Aitken Lawyers |
ORDERS
| NCC 2436 of 2020 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MR CARELLI Applicant | |
| AND: | MS CARELLI Respondent | |
order made by: | JUDGE CARTY |
DATE OF ORDER: | 21 March 2022 |
THE COURT ORDERS THAT:
All previous parenting orders are discharged.
The parents have equal shared parental responsibility for the children X born in 2015 and Y born in 2018 (“the children”).
The children live with the mother.
The children spend time with the father at all times as agreed between the parents in writing and failing agreement:
Until Y commences school:
During each New South Wales School term (“school term”):
(a)From 7.30am until 6.00pm each Friday with changeover to occur at B Shopping Centre, provided that the father will deliver X to and collect her from school, and further provided that when the children are scheduled to spend time with the father for the weekend pursuant to order 4(b) hereto then the father will return the children to the mother at 4.00 pm on Sunday at McDonalds Restaurant at Suburb C;
(b)On the second, fifth and eighth weekend of the school term commencing at 7.30am on Friday and concluding at 4.00 pm on Sunday, extended to 4.00 pm on Monday if a long weekend, provided that the father will deliver X to and collect her from school, with changeover to occur at the B Shopping Centre on Friday and at McDonalds Restaurant at Suburb C at the conclusion of the weekend time;
(c)On one additional weekend each school term, provided that such time will be spent by the father with the children on the Region D of New South Wales, commencing at 7.30am on Friday and concluding at 4.00 pm on Sunday, and the father will deliver X to and collect her from school on Friday, with changeover to occur at the B Shopping Centre;
(d)For the purposes of Order 4(c) hereto the father will provide the mother with three proposed weekends at the commencement of each school term and the mother will select one of the weekends nominated by the father and will inform him of the additional weekend she has selected within 5 days of receiving the proposal from the father.
During each New South Wales Term 1, 2 and 3 school holiday period (“term school holidays”):
(e)In 2022 for five (5) consecutive nights commencing from the conclusion of school or 3.00pm on the last day of term that X is required to attend school and concluding at 4.00pm six (6) days later; and
(f)In 2023 for six (6) consecutive nights commencing from the conclusion of school or 3.00pm on the last day of term that X is required to attend school and concluding at 4.00pm seven (7) days later;
During the New South Wales Christmas school holiday period (“Christmas school holidays”):
(g)In 2022 for five (5) consecutive nights each alternate week commencing from the conclusion of school or 3.00pm on the last day of term that X is required to attend school and concluding at 4.00pm six (6) days later, and each alternate week thereafter; and
(h)In 2023 for 6 consecutive nights each alternate week commencing from the conclusion of school or 3.00pm on the last day of term that X is required to attend school and concluding at 4.00pm seven (7) days later, and each alternate week thereafter.
Upon Y commencing school:
During each school term:
(i)On the second, fifth and eighth weekend of each school term commencing from the conclusion of school or 3.00pm on Friday and concluding at 4.00pm on Sunday, extended to 4.00pm on Monday if a long weekend;
(j)On one additional weekend each school term, provided that such time will be spent by the father with the children on the Region D of New South Wales, commencing from the conclusion of school or 3.00pm on Friday and concluding at 4.00pm on Sunday;
(k)For the purposes of Order 4(j) hereto the father will provide the mother with three proposed weekends at the commencement of each school term and the mother will select one of the weekends nominated by the father and will inform the father of the additional weekend she has selected within 5 days of receiving the proposal from the father.
During term school holidays:
(l)For the first half in even numbered years from after school or 3.00pm on the last day that X is required to attend school and concluding at 4.00pm on the second Saturday of the holiday period; and
(m)For the second half in odd numbered years commencing at 4.00pm on the second Saturday of the holiday period and concluding at 4.00pm on the Sunday prior to the first day of the school term.
During Christmas school holidays:
(n)For the first half commencing in even numbered years from after school or 3.00pm on the last day that X is required to attend school and concluding at 4.00pm on the third Sunday of the Christmas School holiday period;
(o)For the second half commencing in odd numbered years from 4.00pm on the third Sunday of the Christmas school holiday period and concluding at 4.00pm on the Sunday prior to the first day of school term.
Calculation of the school holiday periods
For the purposes of calculating the term school holiday period, the first half is deemed to commence at 3.00pm on the last day that X is required to attend school and to conclude at 4.00pm on the second Saturday thereafter, and the second half is deemed to commence at 4.00pm on the second Saturday and conclude at 4.00pm on the Sunday prior to the first day that X is required to attend school for the new school term.
For the purposes of calculating the Christmas school holiday period the first half of the Christmas school holiday period is deemed to commence at 3.00pm on the last day that X is required to attend school and to conclude at 4.00pm on the third Sunday thereafter, and the second half is deemed to commence at 4.00pm on the third Sunday and conclude at 4.00pm on the Sunday prior to the first day that X is required to attend school for the new school term.
Special occasions
Notwithstanding the provisions of any other order hereto, the children will spend time with the parents on each of the following special occasions at all times that are agreed and failing agreement as follows:
Children’s birthdays
(a)On each child’s birthday with the parent with whom the children are not then spending time or living, from the conclusion of school or 3.00pm until 7.00pm, and if not a school day then from 1.00pm until 5.00pm and, unless otherwise agreed, such time will take place within a radius of 40 km from the home of the parent who otherwise has the care of the children on that day;
Mother’s Birthday
(b)In the event that the children are otherwise spending time with the father on the mother’s birthday, then the children will spend time with the mother from after school or 3.00pm until 7.00pm if a school day, and if not on a school day then from 1.00pm until 5.00pm with time on the non-school day to take place in the Region AF, unless otherwise agreed in writing between the parents with changeover to occur at the father’s residence;
Father’s Day
(c)On Father’s Day each year, and in the event that the children are not already in the care of the father for the relevant weekend, then the mother will deliver the children to the father’s residence at 6.00pm on the Saturday and the father will return the children to the mother at 4.00pm on Father’s Day at McDonalds Restaurant at Suburb C;
Mother’s Day
(d)On Mother’s Day each year, and in the event that the children are not already in the care of the mother for the relevant weekend, then the father will deliver the children to B Shopping Centre at 6.00pm on Saturday and the children will remain with the mother for the balance of the weekend;
Christmas period
(e)With the mother from 4.00pm Christmas Eve until 9.00am on Boxing Day in 2022 and each alternate year;
(f)With the father from 4.00pm Christmas Eve until 9.00am on Boxing Day in 2023 and each alternate year;
Easter period
(g)With the mother from 4.00pm on Easter Saturday until 4.00pm Easter Monday in each even numbered year; and
(h)With the father from 4.00pm on Easter Saturday until 4.00pm Easter Monday in each odd numbered year.
Parents at liberty to attend school and extra-curricular activities for the children
Each parent is at liberty to attend extra-curricular, day-care, school and religious events and activities which relate to the children and that allow for parental attendance.
Provision of information concerning the children
The parents will each keep the other informed as soon as practicable about:
(a)Information and correspondence relating to each child’s sporting, educational, social and religious activities;
(b)Their current mobile telephone contact details and email address and inform the other parent of any change to such details within 24 hours of a change occurring;
(c)The full name of any other person or persons who live in the parent’s household;
(d)Any illness or injury affecting either child including information as to any diagnosis or treatment along with the contact details for any medical or allied health practitioner providing treatment to either child; and
(e)Full details as to any medication prescribed for either of the children and details relating to any medical practitioner who provides assessment of or treatment to either child.
At all times, the father will keep the mother informed of his current residential address and the mother will keep the father informed of the name of the town or the suburb in which the children live.
Changeover
Unless otherwise agreed in writing between the parents, and except as otherwise provided in these Orders, changeover when not at school will occur at McDonalds Restaurant Suburb C.
Communication
The mother will facilitate the children to have telephone or video communication with the father each Monday, Wednesday and Friday between 5.30pm and 6.00pm, unless otherwise agreed in writing between the parents.
Each parent will facilitate communication for the children with the other parent upon the request of the children or either child.
Children’s Passports
The parents will do all acts and things and sign all documents as may be required, and pay in equal shares all fees, necessary to obtain and renew each child’s passport as required to ensure that each child has a current Australian passport at all times with not less than six (6) months until the expiry date.
International travel
Pursuant to section 65Y(1)(ii) of the Family Law Act 1975 (Cth) each parent is permitted to temporarily remove the children from the Commonwealth of Australia for the purposes of overseas holiday and travel from December 2024 onwards, unless otherwise agreed in writing, provided that:
(a)The proposed travel does not exceed three consecutive (3) weeks duration unless otherwise agreed in writing;
(b)The proposed travel does not impact on the children’s time with the non-travelling parent, unless otherwise agreed in writing;
(c)The parent proposing the travel will provide the non-travelling parent not less than three (3) months’ written notice of the proposed travel dates, including details of the departure and arrival dates and details of each county, city or town where it is proposed to travel with the children;
(d)Not less than three (3) weeks in advance of the proposed travel the parent proposing the travel will provide to the non-travelling parent a photocopy of the return air travel or shipping tickets and a copy of the itinerary for the travel;
(e)Not less than two (2) weeks in advance of the proposed travel the parent proposing the travel will provide to the non-travelling parent written notice of the contact telephone numbers and addresses for all places where the children will be staying overnight when outside of the Commonwealth of Australia;
(f)The parent proposing the travel for the children must ensure that the children are covered by valid personal illness/injury/hospitalisation travel insurance policy for the entire duration of the period of the travel outside of the Commonwealth of Australia;
(g)The parent proposing the travel for the children must ensure that the children have each received the vaccinations recommended for any destination of travel by the Australian Government travel guidelines at the relevant time;
(h)The parent travelling with the children will facilitate the children communicating with the non-travelling parent every three (3) days during the period of travel, and otherwise in accordance with each child’s wishes; and
(i)The parent travelling with the children will notify the other parent as soon as practicable in the event of any emergency.
The mother will retain each child’s passport for safe keeping and deliver the passports to the father upon his compliance with orders 14(a) – (c) hereto and the father will return the passports to the mother within fourteen (14) days of the children’s return to Australia.
By no later than 31 December 2022 the mother will provide to the father a true copy of the Certificate evidencing her completion of the online Parenting after Separation course, and such certificate will be provided by the mother to the father within 14 day of the mother completing the course.
X will remain enrolled at Town E Public School, and Y will be enrolled at Town E Public School, unless otherwise agreed by the parents in writing or as ordered by the court.
NOTATION:
A.The expression “in writing” when used in these orders includes by text message and by email.
.Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carelli & Carelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
Introduction
These proceedings were listed for final hearing in relation to property and parenting issues. On the first day of the hearing the parties reached agreement to settle their property dispute, and final property orders were made by consent on 14 December 2021.
The parents remain in dispute about the future parenting arrangements for the two children of their marriage, X born in 2015, who was six years and eleven months old at the date of trial, and Y born in 2018, who was three years and five months old at the date of trial (“the children”).
Background
The father was born in 1977 and is 45 years old. He is employed full time as an educator at Employer F, New South Wales. The father currently works 7 days each fortnight.
The mother was born in 1983 and is 38 years old. She is employed full-time as an educator at Employer G, New South Wales. The mother works full time.
The parents commenced cohabitation around late 2008 at City H, New South Wales. They married in 2011 and separated finally on 13 June 2020.
Both parents worked as educators throughout their relationship, apart from periods when the mother took time away from paid work to care for the children as babies.
The mother and children currently live on the Region D of New South Wales and the father lives in City H. The mother relocated with the children from City H to the Region D following the parents’ separation, as she considered it to be more affordable and closer to maternal family[1]. The father supported the mother’s decision to move to the Region D.[2]
[1] Mother’s affidavit paragraph 120
[2] Father’s affidavit paragraph 66
In January 2021 the father relocated from City H to the Region D, to be closer to the children, and commenced to work at Employer J. He returned to live in City H in July 2021, and recommenced working at Employer F, where he remains currently. In cross examination the father confirmed that it is his intention to remain living in City H in the long term.[3]
[3] Refer also Exhibit “A” paragraph 20 : In September 2021 the father told the Family Consultant that he intends to stay in City H on a long term basis
The parents agree that the driving time between their respective homes is approximately 2 hours and 19 minutes, and is mostly on motorways.
On 9 February 2021, after the father moved to the Region D, interim parenting orders were made by consent which provided, in summary, that the children live with the mother and spend time with the father at times to be agreed and failing agreement:
(a)During school terms:
(i)From after school Thursday until 7.00pm;
(ii)Each alternate weekend from after school or 3.00pm Friday until 4.00pm Sunday; and
(iii)If the father is not working, then Y spends time with the father each Tuesday from 7.40am until 2.30pm with changeover at Employer G.
(b)During NSW school holidays and on special occasions:
(i)The children to spend 5 consecutive nights with the father in the NSW Term 1, 2 & 3 school holidays and during the Term 4 school holidays in 2021, as specified in the orders;
(ii)Christmas 2021, from 6.00pm Christmas Eve until 9.00am on Boxing Day;
(iii)Easter 2021, from 4.00pm on Easter Saturday until 4.00pm Easter Monday;
(iv)Father’s Day; and
(v)Children’s birthdays and each parents’ birthday.
(c)Changeovers, when not at school or day-care, occur at B Shopping Centre.
In July 2021 the father informed the mother that he intended to relocate back to City H. Following his return to City H the father continued to take time off work on a Tuesday so that Y could spend time with him on the Region D. The father requested that the children’s weekly Thursday afternoon time with him be moved to Tuesday.
The mother’s evidence is that the father did not inform her that he was proposing to move back to City H until about one month after he had made the decision, and that he did not provide relevant details about the move to her. The mother felt that she did not have sufficient information, and she initially refused to move both children’s weekly time with the father from Thursday to Tuesday. The mother’s lawyer requested that the father sign an undertaking not to take the children to City H during his weekend time, which the father refused. The mother thereafter withheld the children from the father for a period of time.
The father filed an Application Contravention on 12 August 2021 and the mother filed an Application in a Case on 13 August 2021.
On 28 September 2021 the current interim parenting orders were made by consent which provide for the children to live with the mother and spend time with the father at all times as agreed and failing agreement:
(a)Each alternate weekend from after school or 3.00pm Friday until 4.00pm Sunday, commencing 15 October 2021;
(b)In 2021 Y to spend time with the father, when the father is not working, each Tuesday from 7.40am until 6.00pm and X to spend time with the father from after school or 3.00pm until 6.00pm each Tuesday;
(c)Alternate weekend time for the children with the father is to be spent in City H once per month and on the Region D once per month;
(d)Five (5) night block periods with the father from 2022 during the Term 1, 2 and 3 school holiday periods, to include the alternate weekend time;
(e)Without admission, the mother provide makeup time to the father on the weekends of 1-3 October 2021 and 8-10 October 2021; and
(f)The mother is required to facilitate face time calls for the children with the father each Monday, Wednesday and each alternate Friday at 5.30pm, when the children are not spending time with the father.
The mother’s evidence is that she has re-partnered with Mr K, who currently lives at Suburb L, New South Wales. The mother says that she and Mr K do not currently live together. They spend overnight time together at each other’s homes, usually on the weekends, and the mother and the children have travelled on occasions to Town M, New South Wales, where Mr K’s parents live, to spend a holiday weekend away there. Mr K has three children, daughters aged 14, 13 and 9 years, and the mother says that Mr K has an amicable arrangement with his ex-wife and he spends equal time with his children. X and Y have met Mr K’s children and the mother says that the children enjoy spending time together.
The father’s evidence is that he has not re-partnered, although the mother says that she suspects that he has re-partnered with his house-mate. The father was not challenged about the mother’s suspicion in cross examination, and the court accepts that the father had not re-partnered at the date of trial.
The father commenced a post separation parenting course provided by N Counsellors on 27 August 2020, and completed that course.[4] The mother agreed in cross examination that she has not yet completed a post separation parenting course, notwithstanding Order 9 made by consent on 28 September 2021 requires that the mother provide the father with details of her enrolment in such course within 48 hours of that order. The mother told the court, during her re-examination, that she intends to telephone the course providers in January 2022 and enrol in and complete an online course by the end of first term 2022.
Proposals of the parents
[4] Father’s affidavit paragraph 68
The father’s proposal
The father proposes that the parents have equal shared parental responsibility for the children. He agrees that the children will live with the mother, and seeks orders for the children to spend time with him, in summary:
During school terms, until Y commences school:
(a)Week 1: From 7.30am until 6.00pm Friday, with the father to deliver and collect X to and from her school, and changeover at either the mother’s home or B shops;
(b)Week 2: From 7.30am Friday until 5.00pm Sunday, with the father to deliver and collect X to and from her school, and changeover at commencement of time at either the mother’s home or B shops, and at the conclusion of time at Suburb C McDonald’s unless otherwise agreed;
During school terms, upon Y commencing school:
(c)Each alternate weekend from after school until 5.00pm Sunday, or 5.00pm Monday if on a long weekend, with changeover at the conclusion of time at Suburb C McDonalds, unless otherwise agreed;
During Terms 1, 2 & 3 School Holidays:
(d)For the 1st half in even numbered years, from after school on last day of term until 5.00pm on middle Saturday;
(e)For the 2nd half in odd numbered years, from 5.00pm on the middle Saturday until 5.00pm on the Sunday prior to the first day of school term;
During Term 4 School Holidays:
(f)For the 1st half in even numbered years and for the 2nd half in odd numbered years;
(g)Unless otherwise agreed in writing between the parents, the 1st half of the Term 4 school holiday period is deemed to commence at 9.00am on the first day the children are not required to attend school, and conclude at 5.00pm on the 3rd Sunday, and the 2nd half of the Term 4 school holiday period is deemed to commence at 5.00pm on the 3rd Sunday and conclude at 5.00pm on the last Sunday prior to the first day of school term;
(h)In odd numbered years from 3.00pm on Christmas Day until 5.00pm on Boxing Day with changeover at Suburb C McDonalds; and
(i)In even numbered years the father’s time with the children is suspended from 3.00pm on Christmas Day until 5.00pm on Boxing Day when the children will be with the mother, with changeover at Suburb C McDonalds.
Easter period
(j)In even numbered years from 5.00pm Thursday until 10.00am Tuesday, with changeover at Suburb C McDonalds; and
(k)In odd numbered years the father’s time with the children is suspended and the children will be with the mother from 5.00pm Thursday until 10am Tuesday, with changeover at Suburb C McDonalds.
Special occasions
(l)On each child’s birthday from after school until 7.00pm if a school day (with changeover at B shops) and 10.00am until 2.00pm if not a school day (with changeover at B shops if the children are already with the mother and at the father’s home in City H if children are already with the father).
The father also seeks the following orders: that the children have telephone communication with him on Tuesdays, Thursdays and Sundays between 6.30pm and 7.00pm; authorities for provision and exchange of information relating to education and medical issues; the parents to notify each other in event of injury to either child; exchange of information as to the children’s medical practitioners; parents to keep each other informed of residential address and telephone contact details; mutual restraint on enrolling children in any extra-curricular activity that is likely to regularly occur during the children’s time with other parent, unless with written agreement, and for Y to be enrolled at, and X remain enrolled at, Town E Public School.
Finally, the father seeks that the children each have a passport and be permitted to travel overseas with each parent, with such travel not restricted to Hague Convention countries.
The mother’s proposal
The mother’s proposal at the commencement of the trial was that the parents will have equal shared parental responsibility for the children[5]. The mother sought a “tie break” order to the effect that, in the event the parents are not able to reach agreement on a long term decision, the mother is permitted to make that decision, provided that she has taken the father’s views into consideration, informs the father of her decision and provides the father with all relevant information and documents concerning the decision.
[5] Exhibit C, Annexure A
At the conclusion of the trial the mother abandoned her proposal for an order for equal shared parental responsibility with the “tie-break” provision, and instead sought an order that she have sole parental responsibility for the children, and a separate order in similar terms to the original tie-break order.
The mother sought orders that the children spend time with the father wherever he is living in New South Wales, at all times as may be agreed between the parties and, failing agreement, as proposed in her detailed spend time with orders spanning 5 pages which, in summary, are:
During school terms:
(a)Every third weekend from after school or 3.00pm Friday until 4.00pm on Sunday, with the first weekend to commence on the 2nd weekend of the school term and each 3rd weekend thereafter, with the father to ensure that the children participate in any extra- curricular activities where possible; and
(b)One additional weekend each school term from 3.00pm Friday until 4.00pm Sunday, with the father to provide the mother with 3 proposed weekends at least 4 weeks prior to the start of each school term, and the mother to select one of those weekends within 14 days of receiving the father’s proposal;
During school holidays:
(c)Until the end of Term 4 holidays in 2024:
(i)During the Term 2 & 3 school holidays, from 10.00am on the first Saturday until 4.00pm the following Thursday;
(ii)During the Term 1 school holidays special arrangements including in 2024 from conclusion of school on 12 April 2024 until 10.00am 17 April 2024; and
(iii)During the Christmas school holidays 5 night blocks on 3 occasions.
(d)From the start of 2025 until the end of 2026:
(i)During each Term 1, 2 & 3 school holiday period for 6 consecutive nights (and special arrangements for Easter); and
(ii)During Term 4 school holiday periods, for 6 consecutive nights commencing on the first, third and fifth Saturday and concluding on the following Friday.
(e)From the start of 2027 and continuing in each school holiday period thereafter, during each Term 1, 2 & 3 school holiday period:
(i)In 2027 and each alternate year from the conclusion of school on the last day that X is required to attend school until 10.00am on the 8th day of the school holiday period, and to include the Easter Long weekend; and
(ii)In 2028 and each alternate year from 10.00am on the 2nd Saturday of the holiday period until 10.00am on the following Saturday, with the children to spend the Easter Long weekend with the mother.
(f)From the start of 2027 and continuing in each school holiday period thereafter, during each Term 4 school holiday period:
(i)In 2027 and each alternate year for 3 block periods of 7 consecutive nights commencing at 10.00am on Monday in weeks 1, 3 and 5; and
(ii)In 2028 and each alternate year for 3 block periods of 7 consecutive nights commencing at 10am on Monday in weeks 2, 4 and 6.
In addition the mother seeks orders which allow each parent, from 2027 onwards, to elect one 2 week block period during term school holidays in alternating years, starting with the mother in 2027; provision for special occasions including Christmas Eve, Christmas Day and Boxing Day, father’s day, mother’s day, the children’s birthdays and each parent’s birthday, as agreed and failing agreement then as defined, and an order defining when the school holidays commence and conclude.
The mother seeks an order that she will facilitate the children to have telephone or video communication with the father each Monday, Wednesday and Friday between 5.30pm and 6.00pm.
The mother seeks orders to permit the children to have a current Australian passport at all times, that she retain the passport in her control, that the parents be permitted to travel outside of the Commonwealth of Australia, but only from 2027 onwards, and only to a Hague Convention country, unless otherwise agreed in writing, and the proposed travel not to exceed two (2) consecutive weeks.
The mother seeks an order that the father keep her informed of his current residential address and provide details, including the full name of any other persons who are living in his home. The mother was clear to say in cross examination that she does not wish to divulge her residential address to the father.
Issues for determination
The court is required to determine the following issues:
(a)Allocation of parental responsibility for the children;
(b)The spend time with arrangements for the children with the father during school terms and school holidays;
(c)Passport and overseas travel arrangements for the children, including whether international travel will be restricted to: Hague Convention countries only; no longer than two or three consecutive weeks; and whether such travel will only be permitted from 1 January 2027 onwards;
(d)Whether the mother will be required to provide the father with details of her residential address; and
(e)The extent to which either parent has engaged in family violence, and the impact of any family violence on the capacity of the parents to manage the requirements of an order for equal shared parental responsibility for the children, and whether an order for equal shared parental responsibility is in the best interests of the children.
Legal principles
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects, and the principles underlying the objects, of Part VII of the Act are set out in s.60B of the Act.
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what order is in the child’s best interests, the court must consider the matters that are set out in s.60CC(2) and (3) of the Act, taking into account the particular circumstances of each case.
Section 61DA of the Act requires that, when making a parenting order, 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 responsibly for the child. 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 abuse of the child (or another child who was a member of the parent’s, or that other person’s, family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
If the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
Evidence
The father relied upon:
(a)Outline of Case Document (Final Hearing) – Exhibit B;
(b)Amended Initiating Application filed 7 November 2021;
(c)His Trial Affidavit filed 10 December 2021 (with leave); and
(d)Applicant’s Tender Bundle - Exhibit E.
The mother relied upon:
(a)Case Outline on behalf of Respondent wife–Exhibit C;
(b)Her Trial Affidavit filed 9 December 2021 and Exhibits thereto (with leave);
(c)Exhibit A – Child Inclusive Conference Memorandum to the Court prepared by Family Consultant O on 13 September 2021 and Child Dispute Conference Memorandum to the Court prepared by Family Consultant P on 11 December 2020; and
(d)Minute of Order- Exhibit F.
Consideration of the Evidence
The father was not legally represented at the hearing. He conducted the proceedings in a competent and appropriate manner. He was well prepared and courteous throughout the course of the hearing. His cross examination of the mother was focussed, polite and persistent.
The father gave oral evidence, including in cross examination. He answered questions in a responsive and thoughtful manner. He impressed as a loving, devoted and committed parent with a strong desire to be fully involved in the children’s lives.
The father expressed that he is concerned to defend himself against, what he perceives are, the mother’s false allegations and unfair criticisms of him.
The mother was capably represented by her Counsel at the hearing.
The mother impressed as a loving, devoted, and committed parent.
During cross examination by the father the mother was appropriately assertive, and she answered questions in a thoughtful manner. She presented as a person who is confident to express her views as to what she perceives is best for the children.
The mother was robust when answering questions from the father about X’s medical needs. When she was cross examined about her concern that the father may not give Y his Ventolin, her tone was emphatic. On occasions the mother volunteered information that was not strictly responsive to the question asked, and she sometimes took the opportunity to advocate her own case rather than simply answer the question.
60CC CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
The children lived with both parents from their births until the parents separated in June 2020. Both parents are actively engaged in parenting the children and each has had significant involvement in the children’s day to day care.
Since the parents separated the children have lived with the mother and had regular and consistent time with the father.
It is common ground that each child has a close and loving relationship with the mother which is meaningful and beneficial for each child.
It is common ground that the children enjoy spending time with the father and they each have a close and loving relationship with him. The mother told the Family Consultant that X misses the father and that the mother has offered X the opportunity to call the father outside of the scheduled calls[6].
[6] Exhibit A, paragraph 25
It is a credit to the mother that she remains child focussed and considerate of X’s needs, notwithstanding her own views of the father which were on display in her trial affidavit and during her oral evidence. The mother’s child focus is indicative of her capacity to separate her own experiences and views of the father from the children’s positive experiences with the father.
Both parents have been able to prioritise each child’s need to have a meaningful relationship with the other parent.
The children have established important and meaningful relationships with both parents. The parents agree that the children’s relationships with each parent must be maintained for the benefit of the children, and that the children will benefit from the opportunity to spend regular and consistent time with the father.
The need to protect the child from physical or psychological harm from being exposed, or subjected, to abuse, neglect or family violence
In parenting proceedings the court is required to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence[7]. The court must also consider any family violence involving the child or a member of the child’s family.[8]
[7] Family Law Act 1975 (Cth) s. 60CC (2) (b) and (2A)
[8] Family Law Act 1975 (Cth) s. 60CC( 3)( j)
There has been no police involvement during the parents’ relationship or post separation, and neither parent reports having ever been the subject of a Family Violence Order.
The Family Consultant who prepared the Child Inclusive Conference Memorandum to the Court on 13 September 2021 noted that “it appears generally agreed that there has not been any ongoing issues of family violence”[9]
[9] Exhibit A, Memorandum dated 13.09.21 paragraph 6
The mother’s counsel submitted that the mother does not seek a finding that the children are at risk of harm from being subjected to or exposed to abuse, neglect or family violence, in the household of the father.
The mother devoted many paragraphs in her affidavit to allegations about the father’s behaviour during the marriage “…which she likened to ‘covert coercive control’…”[10] The mother’s characterisation of the father’s conduct is not a statement of evidence, but rather a conclusion.
[10] Exhibit A – CDC Memo at paragraph
Similarly the mother’s statement that during the relationship, and post separation, the father perpetrated domestic violence “…which included verbal, financial, coercive and controlling violence and emotional violence”[11] is a series of conclusions.
[11] Mother’s affidavit paragraph 6, 7
Section 4AB(1) of the Act defines the expression “family violence:
(1) For the purposes of this Act, family violencemeans 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.
The Act also sets out examples of the behaviour that may constitute family violence in sections 4AB(2)-(4):
(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 familymember's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposedto 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 mother deposes to an argument when X was 3 years old (2018). The mother alleges that the father was verbally abusive when she purchased the wrong coffee[12]. She says her life with the father “was punctuated by yelling and swearing and name calling from [the father]”[13] . She says that the father slammed doors and threw things when angry[14]. The mother says that the father would follow her around the house, corner her and make her apologise to him, and that this made her feel intimidated. She says that he was critical of her role as a mother[15]. The father has consistently denied the nature and extent of the mother’s allegations.
[12] Mother’s affidavit paragraph 11
[13] Mother’s affidavit paragraph 13
[14] Mother’s affidavit paragraph 13
[15]Mother’s affidavit paragraphs 17 & 18 & 19
The father deposes to an incident when he and the mother argued when driving back from Sydney. The father asked the mother to apologise to him after she insulted him. He says that she refused to apologise and that she screamed at him hysterically.[16]
[16] Father’s affidavit paragraph 202
The mother says that she regrets that there were times that she yelled at the father in the presence of the children during an argument[17].
[17] Mother’s affidavit paragraphs 23-24
The mother says that, in mid 2018, shortly before the family moved to Country Q, she was writing a list of things to do before the move, when the father became angry. She says that he accused her of being arrogant, and of trying to get him worked up so he would scream in front of X. She says he told her “you are fucked I am not doing this with you”[18]
[18] Mother’s affidavit paragraph 41, 42
In his trial affidavit, the father did not refer to, or deny, the alleged incident in 2018. In cross examination he said that he did not recall an argument about making a list, and he denied telling the mother that she was arrogant or that she was fucked. He said that he never yelled in front of X. He agreed that on occasions he did scream at the mother. He said if he ever swore it was “in context”. He denies the mother’s claims that he berated her.
Both parents agree that they screamed at each other in the course of some disagreements during their relationship, and they were both engaged, from time to time, in mutual couple conflict. The court is not satisfied that the father perpetrated family violence in mid 2018.
Country Q 2018-2020
In late 2018, when Y was about 11 weeks old, the family relocated from City H to Country Q and the father commenced to work as an educator at the Employer R there. The mother had encouraged the father to apply for the job in Country Q, and she was excited when he was offered the position, although she says that the parents argued over the timing of the move to Country Q. The mother was apprehensive about moving to live overseas with a newborn and a small child[19], and she says that her relationship with the father was marred with difficulties thereafter. The father admits that there were some difficulties and disagreements, but the parents’ evidence diverges as to the nature and extent of their disagreements.
[19] Mother’s affidavit paragraphs 35, 36, 37
Shortly after the parents arrived in Country Q, the mother suffered an injury in a motor cycle accident. The parents employed a full time Nanny to assist with the children, and a full time housekeeper.
The mother commenced full time work at the Employer R in about mid 2019, and Y was cared for at day-care at the Employer R, or by the Nanny, while both parents worked. X attended at the Employer R and the father’s evidence is that she benefited from the progressive educational practices, and the cultural and academic opportunities, that the school provided[20].
[20] Father’s affidavit paragraphs 20, 21
The parents agree that moving to a new country with the two young children was stressful. The parents were exhausted and adapting to the changes while caring for the children, including baby Y. The father says that the parents were sleep deprived and irritable.
The parents agree they argued when the mother wanted the maternal grandmother to come over to Country Q and stay with the family. Ultimately the mother’s wish prevailed, and the maternal grandmother came to stay with the family in Country Q.[21] Neither parent has suggested that there were any issues or arguments during the grandmother’s stay with the family in Country Q.
[21] Father’s affidavit paragraph 213
The father was cross examined about an argument which the mother says occurred on 7 November 2019 after the father had informed her that he had a virus and intended to stay home from work that day[22]. The father asked the mother to leave Y with him instead of taking Y to the Nanny at the Employer R. The mother refused and left the home with Y. The father sent the mother text messages asking her to bring Y back and he made a series of calls to the mother’s phone, most of which went unanswered. The father said in cross examination that he did not observe that the mother’s hands were shaking, as she deposes they were, when she left the home with Y that day. He said that the mother appeared to him to be angry, and not upset.
[22] Mother’s affidavit paragraph 52
The court is not satisfied that this argument, including the messages and phone calls on that day, meets the definition of “family violence”. In the court’s view, the incident exemplifies a lack of capacity on the part of both parents, when disagreeing with each other, to calmly discuss the issue in order to resolve a dispute, and is an example of mutual couple conflict.
On 1 December 2019, just over three weeks after the argument above, the mother wrote to the father celebrating their 12 years together. In that document the mother professed her admiration and enduring love for the father and invited him to imagine where they, as a couple, might end up in another 12 years’ time[23]. The mother appeared to reflect with love and enthusiasm on her past relationship with the father and she contemplated, on that day at least, the continuance of their relationship well into the future.
[23] Father’s affidavit paragraph 220
The father was cross examined about an incident on 22 December 2019 when the parents’ argued in a hotel room while trying to get Y to sleep after returning from a night out with friends. The father says that the mother was mildly intoxicated. The father says that he was not yelling at the mother and that X was asleep. He denies that the argument was about the mother breastfeeding Y or that he berated the mother about breastfeeding Y. The father says that he did not insult the mother. He admits that he held the mother’s wrist as she pushed past him to leave the hotel room. He says he attempted to stop the mother from leaving the hotel room because he did not want her to go out alone in a hysterical state, and that he was worried about her safety. The mother says that she said to the father “you’re acting like a monster, let me go”[24] The father denied that she had said he was a monster and he says that the mother told him he was “a fucking whinger”. The father agreed in cross examination that the mother had wanted to leave the room and that she told him that he was scaring her. He denied that the mother has ever told him that she felt unsafe with him, apart from on this one occasion. He said that on this occasion, as best he could tell, the mother appeared angry and not afraid. It is common ground that the mother did leave the hotel room during the incident, returning shortly thereafter, and that both parents went to sleep together in the hotel room that night.
[24] Mother’s affidavit paragraph 53
The mother deposes that upon her return to the hotel the father apologised and said to her words to the effect of “I want to kill myself. I just want to die”. The father was not cross examined about this assertion. There is no independent evidence that the father has ever expressed suicidal ideation or a wish to die.
The court is not persuaded that the incident on 22 December 2019 was an episode of family violence. That incident may more accurately be characterised as mutual couple conflict and again exemplifies the parents’ inability, on some occasions during their relationship, to calmly discuss their disagreements in order to resolve disputes between them.
Family leaves Country Q and returns to City H in late March 2020
It is common ground that when the pandemic struck in March 2020 the parents disagreed about when the family would return home to Australia. The father proposed that the family would remain in Country Q until the end of the parents’ employment contracts in July 2020. He was of the view that it would be safer to remain in Country Q than to travel back to Australia.[25]
[25] Father’s affidavit paragraph 24
The mother was understandably concerned about the impacts of the pandemic and she went ahead and booked flights for the family to travel back to Australia. The father says that the mother informed him that she had booked the flights home two days prior to the departure date[26]. The father deposes that once the mother had booked the flights he assisted by packing up the family’s possessions, along with the things they required for the travel.
[26] Father’s affidavit paragraph 25
The father wrote a long text message which he sent to the mother on 26 March 2020. The message was written as if it was directed to the mother’s family, who the father perceived had placed the mother under pressure to return to Australia. The father denied that the message was written for the purposes of dissuading the mother from returning to Australia, or manipulating her or intimidating her. The father says he wrote the message because he disagreed with the mother’s decision. It is common ground that although the father was upset about the mother’s decision, he ultimately complied with it.
The court has carefully read and considered the father’s message, which is annexed to the mother’s trial affidavit. The court considers that the text message is a legitimate expression of the father’s genuine concerns. The message does express his displeasure, and his perception that the mother’s family had placed the mother under pressure and excluded him from the relevant discussions, which he believes led the mother to make her decision to book return flights for the family.
Like the mother, the father was understandably concerned about the impacts of the pandemic. The concern he expresses is that flying back to Australia might place the family at greater risk than if they remained in Country Q until July 2020. The father carefully sets out the reasons for his position, in a robust but polite and rational manner.
The court sees no difficulty in the father’s communication and is not persuaded that the message is intended to dissuade the mother, nor to manipulate or intimidate her. The parents were in a difficult dilemma, in uncertain and unchartered territory. They disagreed about the appropriate course of action, the father expressed his concerns and feelings and ultimately complied with the mother’s decision. The court does not accept that the father, in venting his frustration and concerns in the message, perpetrated family violence on that occasion.
The father’s evidence is that during their relationship the parents did not disagree about parenting issues, and that they were united in their views as to the children’s routine and discipline, the importance of a healthy diet and lifestyle, vaccinations for the children, the amount of screen time for the children and day care and schooling arrangements. The father says that “…parenting was always a matter we fully agreed on”[27] and that disagreements were mainly about general household issues such as spending habits.
[27] Father’s affidavit paragraphs 203-208
The mother’s evidence is that the father controlled a number of aspects of the lives of the children during the relationship, such as the food they ate and the clothes they were dressed in[28]. She says that the father questioned her about the children’s vaccinations, and he questioned the nurses at the hospital where Y was born, about the Vitamin K injection. The court notes that the children are vaccinated and each was given Vitamin K at birth.
[28] Mother’s affidavit paragraph 88
The mother asserts that she finds the father controlling. The father said that he does not accept that the mother felt controlled by him. The father was cross examined about his personality. He agreed, in answer to a question from the mother’s counsel, that he does consider himself to be an articulate person, that he has a university degree, that he is able to express his thoughts and opinions well, and that he will advocate to other people what he believes in. The father said that he considers that he is not particularly persuasive in his advocacy, and he denied that he has a strong personality.
The court, having considered the whole of the evidence, and having had the opportunity to observe each of the parents give their oral evidence, has formed an impression that the mother is inclined to interpret the father asking questions, or disagreeing with her point of view, as evidence that he is being controlling. An alternative interpretation of the father’s behaviour is that he possesses an active and enquiring mind, and is keen to be kept informed, to discuss, explore and understand the risks and benefits, for example, of vaccinations and treatments for childhood illness.
The children will likely benefit if the father is mindful, when he seeks to communicate with the mother in the future, that she may interpret his enquiries as controlling, and it may assist the co-parenting relationship if communications in relation to major long term decisions for the children are conducted by email or by text message, rather than in person.
As submitted by her Counsel, the mother may have genuinely felt scared or unsafe or intimidated, or a combination of all three feelings, in the presence of the father on some occasions during the course of the parents’ relationship.
Apart from the timing of the family’s move to Country Q in late 2018, the evidence demonstrates that on occasions when there was a dispute between the parents, the mother’s views more often than not prevailed over the father’s. It follows that her will was not overborne by the father on those occasions.
The court is not satisfied that the father perpetrated family violence during the parents’ relationship, or that the father’s conduct is entirely responsible for the mother’s feelings.
Return to Australia March 2020
The family returned to Australia on 30 March 2020. They were required to quarantine for 2 weeks in holiday accommodation at Town S, which the father says was a difficult time[29]. The family home in City H was occupied by tenants and so the parents and children moved from quarantine into short term holiday accommodation before moving back into the family home on 15 April 2020. The parents continued their work for the Employer R in Country Q, remotely.
[29] Father’s affidavit paragraph 28
The father says that the decision to return to Australia was the subject of further arguments between the parents continuing up until their final separation on 13 June 2020, at which time the mother left the family home taking the children with her.[30]
[30] Father’s affidavit paragraph 27, 33
Post separation co-parenting
Upon separation, so that she would have money available to meet expenses for herself and the children, the mother transferred to herself the sum of approximately $77,800.00, which was one half of the monies held in the parents’ joint offset account. When the father became aware of the transfer he withdrew the balance remaining in the account and placed it in an account in his sole name.[31]
[31] Mother’s affidavit paragraph 119; Father’s affidavit paragraph 35
The post separation parenting relationship was likely complicated by the uncertainty attending the parties’ property division and financial matters. The parents were engaged in a number of interim disputes over their property.
By way of an example of alleged post separation family violence, the mother’s evidence is that the father agreed to house sitters moving into the City H property against her express wishes, after she had moved to the Region D, and that he failed to pay her one half of the rental income, and failed to provide her with information about the rental income and the documentation requested by her solicitors, despite her paying for all expenses for the children.
The mother complains that the father failed to disclose his full income to the child support agency and that he has not contributed to day-care costs, dance costs or costs of psychology for X.[32]
[32] Mother’s affidavit paragraph 7
The father says that he sought the mother’s permission to lease the former matrimonial home but received no response from her[33] and that he filed an application in a case seeking interim orders in relation to the issue. In an email to the father sent on 22 February 2021 the mother demanded that the house sitter move out. It appears that the mother had no difficulty communicating, directly and firmly in her email addressed to the father, her requirements in relation to the former matrimonial home[34].
[33] Father’s affidavit paragraph 93
[34] Application in a Case filed 16 November 2020, Father’s affidavit paragraph 101, 102, Annexure -13
During the period immediately post separation the mother insisted that the children’s time with the father occur during daytime only and be supervised by the paternal grandmother, and the father complied with those conditions, notwithstanding that he wanted to spend time with the children overnight[35]. By 25 June 2020 the mother, via her solicitors, proposed overnight time for the children with the father without supervision, on the condition that the father sign an Undertaking to return the children to the care of the mother.[36] The father complied.
[35] Father’s affidavit paragraph 39 -42
[36] Father’s affidavit Annexure -7
The father filed an Initiating Application on 16 July 2020, after mediation failed to resolve the parenting dispute.
The mother’s evidence is that she chose a day care facility on the Region D for the children and that when she asked the father to sign the necessary forms, he did so.[37]
[37] Mother’s affidavit paragraph 125-128
The father perceives that the mother and he have been able to communicate with each other post separation to make decisions for the children. The parents agree that the children were in the father’s care for 10 nights during the school holidays in April 2021; the father supported the mother’s decision to obtain the assistance of a child psychologist for X in December 2020, even though she had not consulted with him prior to making the booking for X to see the psychologist, and the father has followed up with his own appointments with the psychologist in order to find out how he can be of optimal assistance to the child;[38] and the parents facilitated X’s learning during pandemic lockdowns, including by the father regularly participating in on-line learning with X[39].
[38] Father’s affidavit paragraph 92
[39] Father’s affidavit paragraph 62, 64
It appears that the father has taken every opportunity offered by the mother for him to spend time with the children, and he has travelled from City H to the Region D regularly in order to do so. In early February 2021 the father obtained a temporary position as an educator at Employer J on the Region D and he arranged to have Tuesdays off work so that he could care for Y.
On 1 June 2021 the mother requested, at short notice, that the father attend X’s dance concert, which he did immediately.[40]
[40] Father’s affidavit paragraph 105
Throughout 2021 on a number of occasions the parents have remained in the presence of the children while the children have eaten their breakfast.[41] The parents have purchased and consumed coffee for and with one another at some changeovers and the father has accepted the mother’s requests to provide care for the children[42] including most recently on 7 December 2021. Both parents described changeovers as positive at times when speaking with the Family Consultant in September 2021. The father deposes that the children love it when the parents and the children are altogether[43].
[41] Father’s affidavit paragraphs116-121, 127
[42] Father’s affidavit paragraphs 124, 125, 149
[43] Father’s affidavit paragraph 124
In mid-July 2021 the father moved back to City H and the following weekend the mother refused to permit the children to spend time with him.[44] The mother insisted that the father sign an Undertaking that he would not take the children to City H, and that he would not have anyone other than himself sleep in the same premises when the children were in his care nor leave the children in the care of his housemates.[45] The father deposes that he drove from City H to the Region D on two separate occasions during this period and that the children were not provided to spend time with him.[46]
[44] Father’s affidavit paragraph 106
[45] Father’s affidavit paragraph 107and Annexure -14
[46] Father’s affidavit paragraph 112
The mother gave oral evidence that on two occasions, post separation, the father has made her feel fearful. The first is an alleged “look” that the father gave the mother at a changeover, which the mother described as a “death stare”. The second is an occasion on which the mother alleges that the father wore a pair of socks to a changeover displaying unspecified expletives, which she says made her feel threatened and “…like he was meaning to send me a message”. Evidence of these alleged episodes did not make its way into the mother’s trial affidavit, and the father was not cross examined about them.
The father supported the mother’s move with the children to the Region D, and as far as the mother is aware he has not attended at her address, consistent with his evidence that he has not. The mother agrees that there have been many occasions when the parents have spent time together with the children, including at changeovers, at X’s school, and at a dance concert without incident.
At the end of her oral evidence the mother said that the past 18 months has involved a long and drawn out process, and she said that it didn’t need to be that way. The mother said that she has felt worn down and unsafe.
It is not surprising that 18 months of litigation have left the mother feeling worn down. The mother plainly attributes responsibility for the drawn out nature of the process to the attitudes and actions of the father, however the court is satisfied that each of the parents has contributed to the disputes between them, and to the length of time that the process has taken.
The mother submits that the children are not at risk in the care of the father, although during her re-examination she said that she feels that short periods of time with the father will limit potentially lasting impacts on the children of emotional and mental hurt. She did not specify the nature of such hurt or how it might occur. The mother agrees that the children’s health is never at risk in the father’s care.
It appears that the children have been appropriately protected from the parental conflict and that the children have not been inappropriately influenced by either parents’ personal view of the other parent.
The court is satisfied that each parent, to their respective credit, is able to behave amicably toward the other in the presence of the children. .
The court takes into account the evidence that, post separation, the father has completed an anger management course and a parenting after separation course.
The court is comfortably satisfied that the children are not at an unacceptable risk of harm from being subjected to or exposed to abuse, neglect or family violence in the household of either of the parents.
s.60CC(3)(a) – Any views expressed by the children
X was interviewed by the Family Consultant in September 2021 when she was 6 years and 8 months of age[47] and she reportedly expressed liking school, and identified a number of things that she likes about living with the mother and spending time with the father.
[47] Exhibit A paragraphs 32, 34, 35
X did not express any dislikes or worries about spending time with the father.
Y was too young to be interviewed by the Family Consultant.
s.60CC(3)(b) – The nature of the children’s relationships with the parents and other persons
There is no dispute that the children have close and loving relationships with each of the parents and a close sibling relationship with each other.
The paternal grandparents live in City H and it appears that the children have close relationships with each of them.
The mother says, and the court accepts, that the children’s relationships with the paternal grandmother and step-grandfather are facilitated by the mother in her household, including when the mother arranged for X to communicate with the paternal grandparents by face-time when X commenced school, and the mother sent them photographs of X’s first day at school. The mother has also maintained the children’s connection with a paternal cousin.
It is a credit to the mother that she values the relationships that the children have with paternal family members, and that she has taken appropriate steps to maintain those relationships for the children’s benefit.
The mother says, and the court accepts, that the children regularly spend time with extended maternal family who live on the Region D, and in Sydney, and that the children have a loving relationship with their maternal cousins.
s.60CC(3)(c) – Extent to which each of the parents has taken the opportunity to participate in making decisions about major long term issues for the children, to spend time with and to communicate with the children
The court finds that both parents have taken every opportunity to participate in making decisions about major long term issues for the children and to spend time with, and communicate with, the children.
The children live with the mother and she takes every opportunity to spend time and communicate with them. She has made appropriate decisions for the children including arranging for them to attend day care, X’s enrolment at Town E Public School and in relation to the children’s medical needs.
The father takes every opportunity to spend time and communicate with children, including travelling on many occasions from City H to the Region D to spend time with them, and participating with the children in special occasions. The father took a day off work and travelled to the Region D to attend X’s orientation for school in November 2020, and he attended her second school orientation on 1 December 2020. The father and the mother arranged and attended X’s birthday party on 17 December 2020, and both parents have attended X’s dance rehearsals, and dance concerts.
Both parents have arranged and obtained medical treatment for the children when required, and have communicated with each other about the necessary details.
s.60CC(3)(ca) – Extent to which each of the parents has fulfilled their obligation to maintain the child
The mother works fulltime and fulfils her obligation to maintain the children.
Although the mother has asserted that the father is not contributing appropriately to the costs of raising the children, the evidence establishes that he pays child support in the sum of $507.00 per month currently, and that he has made some additional contributions to the costs of dance tuition and shoes for X, the children’s clothing and tickets for Y to attend the Dance concert.[48]
[48] Father’s affidavit paragraphs 79, 82-86
The father pays for his appointments with X’s psychologist to follow up X’s progress.
The father’s evidence as to his payment of child support and additional expenses is unchallenged.
The father readily agreed in cross examination that if the mother asked him to assist her by making further contributions to the children’s expenses such as dance and day-care, over and above the assessed child support, then he is prepared to contribute.
The court is satisfied that each parent is fulfilling their obligations to maintain each child.
s.60CC(3)(d) – The likely effect of any changes in the child’s circumstances
The mother’s proposed orders provide for a reduction in the amount and frequency of the time that the children spend with the father during school terms. Her proposal is for the children to travel to City H every 3rd weekend, and on one additional weekend per term. Assuming the average school term is nine weeks long, then the mother’s proposal would see the children spend time with the father on 4 weekends each school term.
The father’s proposed orders provide for the children to spend the same amount of time with him that has been in place since the parents entered into the current interim parenting orders by consent in September 2021, at least until Y commences school. His proposal is for the children to travel to City H each alternate weekend, rather than once per month as set out in the current arrangement which provides for the other alternate weekend with the father to be spent on the Region D.
The impacts on the children of the changes in their circumstances are discussed later in these reasons.
Given the distance between parental homes currently, and the father’s work commitments when his current period of leave ends, it will not be practicable for the children to spend time with the father mid-week once Y commences school.
s.60CC(3)(e) – The practical difficulty and expense of a child spending time and communicating with a parent
Consideration needs to be given to the distance between the parental homes when determining the children’s time with the father. The Family Consultant expressed the view that, given the distance and the children’s young ages, it may be appropriate for the children to spend time with the father in City H every 3rd or 4th weekend with an additional visit with the father on the Region D once each school term if the father can travel.[49]
[49] Exhibit A paragraph 42, 44
The parents agree that the travel time to Town E is about 2 hours and 19 minutes.
s.60CC(3)(e) – The capacity of the parents to provide for the needs of the child, including emotional and intellectual needs
The mother’s counsel submitted that the mother does not seek a finding that the children are unsafe with the father.
The Family Consultant observed that both parents presented as highly child focussed.
The Family Consultant noted, on 13 September 2021, that“…it appears agreed that drugs and alcohol is not an issue in this matter”[50]
[50] Exhibit A paragraph 11
There are no allegations of current drug or alcohol abuse in the household of either parent. The mother deposes that the father was not a frequent user of drugs during the relationship, but nonetheless time was spent in cross examination of the father on the issue of his past drug use.
The father admits that he has used cannabis, including on two occasions with the mother. He says that he has not used cannabis since an occasion, prior to marriage and children, when it made him feel ill[51]. The father admits that he, and he says the mother, used MDMA 3 times together before they married and had children[52]. He admits that when the parents and children were living in Country Q he researched the use of Psilocybin mushrooms and discussed with the mother his intention to try some of the mushrooms that grew in the vicinity of their villa in Country Q. He admitted in cross examination that he suggested to the mother that she could ingest some with him. He denies that he accused the mother of being unsupportive when she refused. He admits that he ingested a micro dose of dried mushrooms once per week for 3 weeks before discontinuing and that he felt no physical or psychological effects from doing so. He says that he warned X not to go near any mushrooms she saw in Country Q because they may be poisonous.[53]
[51] Father’s affidavit paragraph 152
[52] Father’s affidavit paragraph 153
[53] Father’s affidavit paragraph 154, 155
The father says that he does not intend to use any form of illicit drug ever again.[54]
[54] Father’s affidavit paragraph 157
The parents agree that the father decided that he wanted to cease alcohol use in 2013 and the father deposes that he has not drunk any alcohol since January 2013. He says that his sobriety is of great importance to him, as he desires to live a healthy lifestyle and he considers that drinking alcohol is a contradiction to his role as an educator.[55]
[55] Father’s affidavit paragraph 159, 161
The father attended AA meetings twice a week during the period between 2013 and 2017, apart from a few months. The father still volunteers with AA and attends regular meetings.
The father has submitted to urinalysis and CDT to demonstrate that he is not abusing alcohol or drugs.
The mother raised her concerns as to the father’s mental health however there is no evidence adduced in these proceedings to suggest that the father has ever been diagnosed with a mental health condition, or that he has an undiagnosed or untreated mental health condition. He remains employed as an educator, is actively involved as a volunteer in the community and takes every opportunity to spend time with the children.
The father has completed the Parenting after Separation course and an Emotional Intelligence/ Communication Program with an emphasis on Anger Management with a registered clinical counsellor.[56]
[56] Father’s affidavit paragraph 6, Annexure -20
The father expressed concern that the mother did not immediately follow up with a doctor’s appointment as recommended, or with obtaining an asthma management plan, for X, after she was taken to hospital on the evening of 27 August 2020 due to asthma.[57] As previously stated, the court is satisfied that each of the parents has the capacity to attend appropriately to the needs of both children, including meeting their medical needs.
[57] Father’s affidavit paragraphs 69, 74-76
The parents may benefit from engaging in a program or programs to assist each of them to find more constructive, less stressful, ways to communicate with each other as parents, and to assist them to develop a better understanding and respect for the strengths of the other parent.
The court is comfortably satisfied that each parent is more than capable of meeting the needs of the children and that both parents are deeply committed to the welfare and wellbeing of the children. Both parents are equally concerned to ensure that the children receive a high standard of care and remain safe and well at all times.
Attitude to the responsibilities of parenting
The parents have demonstrated a willingness and ability to engage with each other in making important decisions for the children and each presented with a positive approach to the responsibilities of parenting and with the capacity to engage the children in a range of positive experiences and activities.
The court finds that both parents demonstrate an appropriate attitude to the responsibilities of parenting.
The child’s relevant characteristics
The mother arranged for X to be engaged with a child psychologist in December 2020 to deal with the trauma of the big changes following the separation of the parents.[58] The mother did not consult the father before booking the session for the child, however the father was supportive of the child’s attendance on the psychologist and made arrangements to meet with the psychologist himself to learn how he could be of optimal support.[59]
[58] Father’s affidavit paragraphs92
[59] Father’s affidavit paragraph 92
More recently X is engaged in counselling at T Centre and the father is fully supportive of that, although he says that he was not consulted ahead of the booking being made.[60]
[60] Father’s affidavit paragraph 147
The court considers that the mother and the father have each demonstrated a child focussed approach to supporting X through the upheaval of the parental separation.
Allocation of parental responsibility for the children
Family Consultant O notes an agreement in September 2021 that the parents share parental responsibility[61]. Family Consultant P notes, in December 2020, an agreement that the parties have equal shared parental responsibility.[62]
[61] Exhibit “A” paragraph 1
[62] Exhibit A paragraph 22
The Act requires that when making a decision about a major long-term issue in relation to the child, the decision is to be made jointly by the persons who have shared parental responsibility for the child. Each person with shared parental responsibility is required to consult the other person in relation to the decision to be made about the issue, and to make a genuine effort to come to a joint decision about the issue.[63].
[63] Family Law Act 1975 (Cth) s. 65DAC
A major long term issue in relation to a child is an issue about the care, welfare and development of the child of a long term nature, including but not limited to, the child’s education, religious and cultural upbringing, health, the child’s names and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[64]
[64] Family Law Act 1975 (Cth) s. 4 Interpretation of phrase “major long-term issue”
S.61DA of the Act
Having carefully considered the evidence, and for the reasons already given, the court is satisfied that there are no reasonable grounds to believe that a parent of the child has engaged in family violence. Therefore the presumption that it is in the best interests of each child for the parents to have equal shared parental responsibility for the children applies.
The mother’s counsel submitted that it was not necessary for the court to make a finding about whether or not the father has engaged in family violence, in order for the court to be satisfied that the mother genuinely and honestly felt scared, intimated and unsafe at times during the relationship and post separation and that the court ought to make an order for the mother to have sole parental responsibility for the children.
Inferentially the mother seeks an order for sole parental responsibility on the basis that the presumption in s.61DA is rebutted by the evidence of how the mother genuinely feels, and a finding that it is not in the best interests of the children for the parents to have equal shared parental responsibility because her feelings impact on her ability to consult with the father.
The mother submits that the relationship between the parties was marred by significant disputes about major decisions and she cites the decision to move to Country Q when Y was 11 weeks old, her not supporting the father by declining to take Psilocybin with him in Country Q, and her decision to return to Australia from Country Q early on in the pandemic as examples of such disputes.
The disputes nominated by the mother are not disputes which pertain to major long term decisions for the children, within the meaning of the Act.[65] The parents agreed that they would move to Country Q with the children, and they agreed that X would be educated at the R School and that both children would be brought up, at least for the period of time spent in Country Q, in a country which has different religious and cultural influences to Australia. The parents’ dispute concerned only the timing of the move. The mother’s decision whether or not to take Psilocybin is not about the care welfare and development of a child and does not involve a major long term issue about a child. The dispute as to the timing of the return to Australia is not a dispute about a major long term issue for the children.
[65] Family Law Act 1975 (Cth) s. 4
The father was clear to say that, in the event of disagreement between himself and the mother in relation to decisions concerning major long-term issues affecting the children, he would defer to the mother, because he considers her to be a good parent who is capable of making good decisions for the children in relation to their medical and educational needs.
That concession by the father does not obviate the court’s responsibility to make an order that the court considers to be in the best interests of the children. The father’s concession gives comfort that if there is conflict between the parents in the future as to decisions that must be made in relation to major long term issues affecting the children then that conflict may be alleviated if the father is prepared to defer to the mother.
The parents are at variance in their views as to their current co-parenting capacity. The father is of the view that the parents are able to communicate well and will continue to do so, and the mother is of the view that the parents have limited co-parenting capacity when they disagree. She says that their communication has been strained. The mother expresses her concern about what the father is saying to X arising from statements that X has reportedly made to the mother. The court is not able to place significant weight on the mother’s conversations with the child, given that the mother suggested to the child that the father tells the child to keep secrets, a suggestion with which the child, unsurprisingly for her age, acquiesced.
The mother says that she is concerned that the parents will be unable to agree on medical decisions that need to be made for the children, such as the Covid 19 vaccination and treatment for X’s asthma. Whilst the father may, from time to time, ask questions about proposed medical treatments or interventions for the children, or suggested alternative therapies, there is no evidence that the father has failed to administer appropriate medical treatment for the children, or failed to comply with the mother’s requests in relation to such treatment.
The mother agreed, in cross examination by the father, that the parents had effectively made long term decisions since enrolling X in school, that they have communicated with each other concerning changeover arrangements including times and places, that both parents have attended dance concerts and rehearsals and X’s first day of school, that they consulted with one another about enrolling the children in sports when in the father’s care, and that both parents have complied with X’s asthma plan, and both parents contributed to X’s online learning during lockdown.
The Family Consultant notes that there appears to be a level of communication and co-parenting (as at 13 September 2021) and that each parent expressed the hope and belief that their communication and co-parenting can improve in the future.[66]
[66] Exhibit A paragraph 15
The court is satisfied that the parents are able to consult with each other and make appropriate treatment decisions for the children, in consultation with the children’s treating medical practitioners.
The court finds that the parents have a demonstrated capacity to co-operate with each other and to be flexible for the sake of the children. There are multiple examples in the evidence of occasions where the parents have been able to put aside their own conflict and prioritise the needs of children, already discussed in these Reasons.
The property matter has been finalised by agreement and, when final parenting orders are in place and the litigation is over, the court is satisfied that the parents will be able to manage the requirements of having equal shared parental responsibility for the children, that is to consult with the other parent in relation to a decision that has to be made about a major long term issue affecting the children or either of the children, and make a genuine effort to come to an agreement about that issue[67]. The court is confirmed in this view having regard to the evidence and noting the observation of the Family Consultant:
“…that the parties’ property matter may be a contributing factor to the parents’ conflict and the ongoing dispute regarding the parenting matter”[68]
[67] Section 65DAC
[68] Exhibit ‘A” paragraph 3
The court is of the view that the parents do have the capacity to consult with each other by email or text message and that they do have the capacity to focus on the needs of the children in making a genuine effort to come to a joint decision about major long term issues.
The court is satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children.
S.65DAA of the Act
When the court makes a parenting order that provides for the parents to have equal shared parental responsibility for the children then the court must consider the matters set out in s.65DAA of the Act, the effect of which has been set out under the heading Legal Principles.
Neither of the parents sought an order that the children spend equal time with each parent. The children have lived primarily with the mother since separation. Y is a very young child, not yet of school age, and arrangements for the children to spend equal time with each parent would effect a significant change in the children’s life, the impacts of which are not reliably able to be ascertained on the current evidence. More particularly, in view of the distance between the parental homes currently, it is not reasonably practicable for the children to spend equal time with each of the parents, as the travel time involved would make it impracticable for the children to attend their school and day care and impose an unacceptably high and oppressive burden of travel on the children.
The court is required to consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and reasonably practicable and if it is, consider making an order for the children to spend substantial and significant time with each of the parents[69].
[69] Family Law Act 1975 (Cth) s. 65DAA (2) and (5)
The mother expressed to the Family Consultant in September 2021 that she wanted the children to be able to spend regular time with the father, proposing alternate weekends and some midweek time if the father was to return to the Region D area to live[70].
[70] Exhibit “A” paragraph 4
In order for a child to be taken to spend substantial and significant time with a parent, the time that the child spends with that parent must include both days that fall on weekends and holidays and days that do not fall on weekends or holidays and must allow the parent to be involved in the child’s daily routine, and occasions and events of special significance to the child, and must allow the child to be involved in occasions and events of special significance to the parent.[71]
[71] Family Law Act 1975 (Cth) s. 65DAA(3)
The orders that the court proposes to make, at least until Y is school age, will provide for the children to spend significant and substantial time with the father.
Spend time with arrangements for the children during school terms and school holidays
In cross examination the father said that he currently works 7 days per fortnight, 4 days one week and 3 days the next. He routinely takes Friday off work. The father is a permanent employee with the Employer U and his current leave is taken on a without pay basis, primarily in order to meet his parenting obligations. The father’s evidence is that unpaid leave can be taken for up to 2 years, following which he must return to work full time for 2 years. Thereafter his leave balance is reset and he can work part time again if he chooses.
The mother’s evidence is that Y will attend day-care in 2022 on Monday, Tuesday, Thursday and Friday and that he will be cared for by the maternal grandmother each Wednesday.[72]
[72] Mother’s affidavit paragraph 215
The father proposes that, until Y commences school, Y spend time with the father each Friday from 7.30am until 6.00pm, during which time the father would also deliver and collect X to and from school, and then return both children to the mother at 6.00pm, except on the weekends that the children are spending time with the father when they will remain with him until Sunday afternoon.
It is common ground between the parents that Y has been cared for by the father on one day each week, during school terms, since early 2021. The mother agrees that the father has been reliable and has not missed any occasion of weekday time with Y.
The court considers that there is a benefit for Y in spending time with the father one day each week during school terms until he commences school. It is an arrangement to which Y is accustomed and it involves no additional travel for either child.
X has also spent time with the father on the weekday when the father has cared for Y, before and after school until 6.00pm, an arrangement that was put in place by the parents to avoid X feeling that she was missing out on spending time with the father weekly.
The court will make orders which ensure that, as far as possible that neither child feels left out or treated differently from the other in terms of their opportunities to enjoy their relationships with each of the parents.
It is well accepted that more frequent time with the parent with whom the child is not living can assist a younger child to maintain a close and familiar relationship with that parent.
The mother said, in her oral evidence, that she does support an order for Y to spend time with the father one day each week during school term until Y commences school, and she supports an order for X to spend time with the father on the same day as Y, before and after school.
The mother submits that the father’s proposal for the children to spend time with him each Friday is not convenient to her because she would like the opportunity to spend her weekend time with the children without their time with the father encroaching on their time with her. The mother submits that either a Tuesday or a Thursday would suit her better. The mother’s proposal would require that father not only take Fridays off work and travel to the Region D at least 3 times each term, but in addition take every Tuesday or Thursday off work and travel to the Region D and back, to spend time with the children on either of those days.
The mother works full time and on any weekday during the school term that Y spends with the father, Y will not be enrolled in pre-school on that day. It is imperative that the father remains consistent and reliable if Y is to spend time with the father on the Region D on one day each week, to ensure that the mother’s capacity to attend to her work is not negatively impacted. Whilst the mother says that she is able to rely on her family in the event that the father is unable to attend the Region D due to a genuine emergency, it is incumbent on the father to remain consistent, reliable and on time, not only so as to ensure that the mother is not inconvenienced, but also to assist the parents to re-build their trust in the co-parenting relationship, and to avoid disappointing or distressing X and Y, or disrupting their weekly routines.
It appears in the children’s best interest for the father to be able to confine his time off work and travel to the Region D to the same day each week, to coincide with Fridays when the weekend time is spent, as otherwise he will be required to take up to two days off, some weeks, and travel twice in the same week to the Region D and back.
If the weekday time is confined to each Friday during the school terms then the father may able to work an extra day each week, and avoid the additional costs of travel, and he may be in a better position therefore to provide additional financial support for the children.
The mother’s concern about the children’s time with the father on a Friday encroaching on her weekend time is understandable, and the father indicated his willingness, during submissions, to be flexible with the conclusion of time, when the children are due remain with the mother for the weekend, so that if the mother requires the children home earlier, so that she can leave earlier with them for a weekend away, then he will oblige.
The weekly time for Y and X with the father is important for the opportunities it brings for the children to spend time with the father regularly, notwithstanding the distance between the parents’ homes. The weekly time with the children will continue only for the next 2 years until Y commences school. If the children are to spend less time with the father, than with the mother, during school holiday periods, until Y is at least school age, then the mother will have ample additional time during school holiday periods to travel away from home with the children.
On balance the court considers that Y’s and X’s weekly time with the father ought to occur each Friday during school terms until Y commences school in 2024.
Weekend time with the father until Y commences school in 2024
The mother deposes that the travel between the parental homes creates some difficulties for the children, in particular the Sunday evening trip home from Suburb C is difficult because the children are tired and irritable and sick of being in the car.[73] Y is particularly affected given his age. The children are reportedly well adjusted to moving between the parents’ households[74].
[73] Mother’s affidavit paragraph 227
[74] Exhibit A paragraph 24
The mother worries about the impact on the children’s ability to engage in community and extra-curricular activities on the Region D if they spend time away in City H each alternate weekend[75], and this is a circumstance that each parent will have to grapple with as the children get older and express a wish to participate in weekend sports and other activities, regardless of whether the time takes place each alternate weekend as the father proposes, or less frequently as the mother proposes.
[75] Mother’s affidavit paragraph 224
The court accepts that the children’s young ages can make travel more onerous for them, and this does needs to be taken into consideration in formulating the arrangements for the children to spend time with the father during school terms. The children are familiar with the travel between City H and the Region D, and have been travelling to City H once each month to spend time with the father since September 2021, with the other weekend each month spent with the father on the Region D.
The Family Consultant was not required for cross examination. Her view is that it may be appropriate for the children to travel to spend time with the father in City H every 3rd or 4th weekend, with an additional weekend spent with the father on the Region D.
It appears from the evidence that, on average, each school term is 9 weeks long. If the children were to spend time with the father each alternate weekend commencing on the 2nd week of each term, then they would spend the weekends at the conclusion of weeks 2, 4, 6, and 8 with the father, before the spend time arrangements would move into the school holiday regime. The children would spend four weekends each term with the father. If the children spend time with the father, as the mother proposes, at the end of weeks 2, 5 and 8, and an additional weekend to be nominated by the father and selected by the mother each term, then the number of weekends the children spend with the father will still number four each term.
The mother did not propose that the additional weekend time that she proposes the father will nominate will be spent on the Region D, and her proposal is not consistent with the Family Consultant’s recommendation in that respect.
In order to fit in the additional weekend time proposed by the mother the children would likely end up travelling to City H to spend time with the father on two weekends in a row at least once each school term.
The court accepts the unchallenged opinion of the Family Consultant. Her recommendation is consistent with the children’s needs given their current ages and stages of development and the court is of the view that it is preferable to either parents’ proposal. Travel to City H and back any more than once every three weeks is likely to impose too onerous a burden of travel on these young children. It is preferable for them to travel to City H every third weekend and spend one additional weekend with the father on the Region D.
Time on the Region D with the father will benefit the children by providing an opportunity for the father to be involved in their weekend activities in the area where they live, and ensure that the children spend time with the father on a more regular basis during school terms, without the burden of travel more than three times each term impacting negatively on the children.
As the children get older, the court considers that travel between the Region D and City H each alternate weekend is too onerous for them. Whilst travel by freeway is often quicker, there are still inevitable delays due to heavy traffic, accidents, weather events and the like, and the children will spend almost 5 hours in the car, and on some occasions possibly significantly more time, every time they make the return trip from the Region D to City H.
In the event that the father moves significantly closer to where the children live with the mother then alternate weekend time for the children with the father, on the current state of the evidence, would be appropriate as it is only the distance between the parental homes currently which militates against an order for the children to spend time with the father at least each alternate weekend.
In the event of a significant change in circumstances, having regard to s. 60I of the Act, and the requirement for the parties to comply with the pre-action procedures and take genuine steps to reach agreement before resorting to litigation[76], unless a relevant exemption applies, the parents are required to arrange and attend family dispute if they are unable to reach agreement in relation to the appropriate parenting arrangements for the children in the future.
[76] Federal Circuit and Family Court of Australia ( Family Law) Rules 2021: Chapter 4-Dispute Resolution
Term 1, 2 and 3 school holidays
The father proposes that the children spend half school holidays with each parent and he says that this will provide an opportunity for the children to travel overseas with each parent in the Term 4 school holidays when the children would spend about 3 weeks with each parent. The father submits that the children have spent substantial time in his care and that he has the capacity to care for them. The court finds that the children have spent time with the father for at least one block period of 10 days in April 2021 with no issues identified.
The children have been spending block periods of five consecutive nights with the father during the school holidays, by consent, since September 2021, with no noted issues.
The court is mindful of the recommendations of the family consultant. The court is of the view that the parents’ interim agreement made in September 2021 for the children to spend block periods of up to 5 nights with the father during school holidays in 2022 ought to be respected, noting that the parents appear to have taken into account the opinion of the family consultant in reaching that agreement. There is no evidence of any change in the children’s circumstances since the agreement was made to warrant deviating from what the parents agreed was best for the children at that time.
The court accepts the opinion of the family consultant that the children will benefit from a staged progression of block time. The evidence supports a finding that the children will cope with block periods of 6 consecutive nights with the father during holidays in 2023.
The mother’s proposal for the progression of the children’s block time with the father in the school holidays would result in Y being 8 or 9 years of age before he and X, who will by then be 12 years old, would spend a block period of 7 nights with the father. The mother agreed in cross examination that prior to separation X had spent 10 days with the father while the mother travelled to Country V. She also agreed that both children had spent 10 days with the father in the Term 1 School holidays 2021, with no concerns. The court is of the view that the mother’s proposal in would unnecessarily restrict the children’s school holiday time with the father into the future.
Once Y commences school in 2024 the court is of the view that the children will cope well spending time with the father for one half of the school holidays, noting that they will have had a gradual progression of time over the preceding two years.
Special occasions
The father agreed that the children ought to spend time with the mother on her birthday. He expressly does not seek an order for the children to spend time with him on his birthday if the children are spending time with the mother on that day because his birthday falls within the 2nd half of the NSW Term 4 school holiday period and he does not wish to interrupt the children’ school holiday time with the mother when they are spending the 2nd half of the Term 4 school holidays with her.
Both parents seek an order in respect of time with both parents on each child’s birthday, and as X’s birthday is on … it will fall within the first half of the Term 4 school holidays each year. The parents may of course agree to vary the orders to allow for flexibility in the parenting arrangements for the children as the situation demands.
The mother agreed in cross examination that the radius of 20 km that she sought to be imposed on the children’s time with either parent on each child’s birthday was designed to address her concern that the children do not travel too far during 4 hours spent with the other parent. She agreed that her proposal was arbitrary and she agreed that it may be unduly restrictive. The court considers that a 40 km radius is sufficient to ensure that the children do not spend an inordinate amount of time travelling during the 4 hours they spend with the other parent on their birthdays.
The father agreed that for the purposes of the Mother’s Day and Father’s Day weekends, the changeover ought to be at 6.00pm on the Saturday as proposed by the mother, and those orders will be made accordingly.
The mother proposes that the children spend Christmas Day with her in each even numbered year and with the father in each odd numbered year, considering the distance between the households, to avoid the need for the children to travel on Christmas Day, and she proposes that changeovers for that purpose occur at 6.00pm on Christmas Eve and at 9.00am on Boxing Day. The mother’s proposal involves 4 changeovers for the children during the 4 day period from 12 noon Christmas Eve until 10.00am on 27 December.
The father’s proposal would see the children changeover at 3.00pm on Christmas Day and 5.00pm on Boxing Day, 2 changeovers during the Christmas period.
The mother says that she is concerned to avoid, as far as it is possible in the circumstances, the need for the children to travel between the Region D and City H. The court considers that avoiding travel as far as possible during the Christmas period is preferable for the children and will make orders for the Christmas period that will as far as possible minimise the children’s travel and the number of changeovers for the children during that period. There was no evidence from either parent as to the need for there to be special arrangements made for the children to ensure time with either parent on Christmas Eve or Boxing Day.
Communication orders
The father submits that the communication order proposed by the mother which requires telephone calls to be terminated after 30 minutes is unduly restrictive and one-sided.
The mother is concerned that the father is not attuned to the routine in her household and she was clear to say that she feels that the father does not assist in terminating the calls to the children when it is time for them to stop communicating with the father in order for them to move on with their mealtime and bedtime routines. The mother’s proposal to facilitate face time or phone calls for the children with the father three times each week is a generous one, in the sense that the phone calls, whilst obviously enjoyable and beneficial for the children are nonetheless an intrusion into the routines for the children, and the father does respect this, and in his final submissions he agreed that a time limit is warranted.
The purpose of the communication by face time or telephone is to enhance the children’s relationships with the father by providing them with the opportunity to speak with him regularly. It is not the duration of the calls that is important but rather the frequency, and the quality. While the children are reliant on the mother to facilitate the calls it is appropriate that limits are respected. The mother is the parent who is required to meet the children’s day to day needs and manage her own full time work commitments. The court considers that a limit on the duration of the calls to 30 minutes on three occasions each week is reasonable in the circumstances. The parents are at liberty to agree on a more expansive arrangement if circumstances require, taking into account the needs of the children as they mature and become more able to manage their own communications and routines.
The mother does not oppose the order that the father seeks requiring the parents to facilitate communication with the other parent if the children request it, and such order will be made.
Exchange of information
The mother seeks an order that the father provide her with his residential address and inform her of the name of any other person living in the father’s home. The father does not oppose that order. He seeks that the same order applies to the mother. The mother opposes an order which would require her to divulge her address to the father, however she is prepared to keep the father informed of the name of the suburb where the children live.
The court is not satisfied that the mother or the children would be at risk of harm were the father to become aware of the residential address of the mother. There is no evidence that the father has stalked, harassed, molested or intimidated the mother post separation. There has never been a family violence order in place for the protection of either parent. Neither parent has a criminal history. Both parents are high functioning individuals with responsible jobs. Both parents are intelligent committed and loving parents. There is no evidence to suggest that either parent is maladapted to the separation. The father is aware that the mother has re-partnered and there is no evidence that he has sought to interfere with her new relationship.
Whilst the court considers that it is not necessary, for the personal protection of the children or the mother, that her address is keep private from the father , the court does not consider that the father is entitled to be informed of the mother’s address if she requests to keep it private. The court is not persuaded that it is necessary for the welfare of the children in this case to make a mandatory injunction which would require the mother to inform the father of her address.
The mother may like to consider, however, whether the children may be better off if she is willing to provide her address to the father in due course, and whether keeping her address a secret from the father may be fraught with difficulties for the children in the future, including for the following reasons:
(a)Apart from those cases where it is necessary, for the personal protection of a child or a person with whom a child is living or spending time, that a parent’s address is not disclosed to another parent, the parents do have a legitimate interest in knowing where the children are, including when they spend time in the other parent’s household. The legitimate interest relates to the safety and wellbeing of the child. A child may have the capacity to phone a parent in an emergency, for example where the other parent suffers a serious injury or illness while caring for the child. If the child is unable to recite or remember the address of the ill or injured parent then the child may be unable to be quickly located, and that may place the child at greater risk of harm;
(b)Where one or both parents keep their residential address details private from the other parent then the parent maintaining such privacy may be unwilling to allow the child knows the address, in case the child divulges the address to the other parent. It is possible that a child may be placed at risk if they do not know their own address, for example in a situation where they become separated from a parent; and
(c)It may place an onerous psychological burden on a child to have to keep secret from one parent, the address where the child lives or spends time with the other parent. That burden may create loyalty binds for the child, or make the child more susceptible to grooming behaviours by strangers, who might ask the child to keep secrets from the child’s parents.
Overseas travel arrangements for the children
The parents agree that each child ought to have a current passport and that each child will be permitted to travel internationally with each parent. The parents’ dispute lies in whether overseas travel with the children is delayed until 2027, by which time X will be 12 years old and Y will be 9 years old, or be permitted to travel overseas with immediate effect.
Neither party sets out in their trial affidavit evidence of any current plan to travel internationally with the children, but the parents do agree that some orders ought to be made now, in the hope that further litigation about the issue can be avoided in the future.
In addition to delaying any travel until 2027 the mother seeks a restraint on the parents travelling to any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), although her original proposal for a blanket restriction was modified in final submissions to a proposal that any proposal for travel that is not to a Hague Convention country would require the written agreement of the other parent. The father was prepared also to have this restriction, in the event that the court determines such restriction is necessary in the best interests of the children.
Country Q is not a signatory to the Hague Convention, and nor are a number of other tourist destinations that are popular with Australian international travellers.
The mother raises a concern that if the father travels with the children to Country Q he may not return them. The father, in cross examination was clear to say that he does not intend to live in Country Q in the future. He says he intends to remain living in City H, even after the sale of the former matrimonial home.
It is common ground between the parents that the father is an Australian citizen, his parents were born in Australia and have lived continuously in Australia, and the father too has lived in Australia his whole life, apart from when the parties and the children lived in Country Q together between 2018 and 2020. The court accepts the father’s evidence that he is committed to remain living in City H, Australia.
The mother agreed with the father in cross examination that if the children’s international travel was restricted to Hague Convention countries then they would be unable to travel to popular tourist destinations such as Country W, Country Z, Country AB and Country Q. She did not agree, when it was put to her by the father, that this would negatively affect the children’s right to travel to holiday destinations.
The mother agreed in cross examination that the father has never threatened to withhold the children from her, or to abduct the children. The father has complied with court orders and, prior to the court orders, he complied with undertakings required by the mother, post separation, before she would permit him to spend time with the children.
The parents were enthusiastic overseas travellers prior to and during their marriage. The father travelled to Country AC in order to propose marriage to the mother in 2008, and the parents enjoyed regular overseas holidays including to the Country Z, Country Q, Country V, Country AD, Country AC, Country AE and New Zealand.[77]
[77] Father’s affidavit paragraphs 7 & 11
The parents and the children travelled to Country Q and lived there between September 2018 and March 2020. The parents agree that the children enjoyed their time in Country Q and the father says that the children still talk about Country Q and that X regularly asks when they can go back there and says that she misses Country Q.[78]
[78] Father’s affidavit paragraph 23
Having lived in Country Q together each parent is familiar with the region and has made connections with other people there. The familiarity and the personal connections would make it very difficult for one parent to remain in Country Q hidden from the other parent.
The mother said in re-examination that her concerns arise from the father’s behaviour when under a lot of stress, that in the past he has acted unfavourably towards her and she is concerned that he may go overseas with the children and not come back, in order to get what he wants, and that he has told her that Country Q feels like home to him and he loves it.
When parenting orders are in force, as they are in this case, it is a serious offence under s.65Y of the Act for either parent to take or send a child from Australia to as place outside of Australia without the consent in writing or each person in whose favour a parenting order is made or in accordance with an order of the court made at the time or making the parenting order or after the making of the parenting order. The penalty prescribed for such offence is imprisonment for 3 years.
There is no evidence to suggest that either parent in this case has a criminal record. The court considers that both parents are generally law abiding citizens who would not knowingly breach a court order, commit a criminal offence or place the children at risk.
In order for the court to make the order in the terms sought by the mother the court must be satisfied that it is necessary or appropriate for the welfare of the children that the parents, or either of them, are to be restrained by injunction from travelling with the children overseas, unless to a Hague convention country. The court is not persuaded that such injunction is either necessary or appropriate, and the court considers that the children are not at risk of being retained in any foreign country by either parent without the written consent of the other parent.
The Court is satisfied that it is in the best interests of the children for them to have current passports and be permitted to travel internationally without restriction, subject only to the reasonable notice provisions sought by both parents and with the travel delayed, unless otherwise agreed, until Y has attained the age of 6 years. By that time Y will be spending one half of the Term 4 school holidays with each parent and will be of an age and stage of development to cope, not only with the absence of the other parent for up to 3 weeks, but also more capable of participating in electronic and other forms of communication in order to communicate with the absent parent while travelling.
The court considers that the travel orders the court proposes to make are the orders least likely to lead to further proceedings in this matter.
| I certify that the preceding two hundred and forty-eight (248) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. |
Dated: 21 March 2022
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