Carreira & Middleton
[2022] FedCFamC1F 1095
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carreira & Middleton [2022] FedCFamC1F 1095
File number(s): CSC 469 of 2016 Judgment of: BAUMANN J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – PARENTING – Limited remaining issues in dispute between the parents at trial – Final orders made in the best interests of the child Legislation: Family Law Act 1975 (Cth) s 60B, 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Rahal & Rahal [2022] FedCFamC1F 605
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 5 & 6 December 2022 Place: Townsville Counsel for the Applicant: Ms J McArdle Solicitor for the Applicant: Newman Family Law Counsel for the Respondent: Mr R Pack Solicitor for the Respondent: Stevenson & McNamara Lawyers Counsel for the Independent Children's Lawyer: Ms A Frizelle Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers ORDERS
CSC 469 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARREIRA
Applicant
AND: MR MIDDLETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS:
1.That the child, X born 2011 live with the mother.
2.That the mother have sole parental responsibility for X in relation to her long term care, welfare and development and for the purpose of these Orders a parenting issue is:
(a)any medical or health matter concerning X and forthwith in the event of any medical or other emergency involving X;
(b)matters relating to the education of X, including but not limited to the choice of school and curriculum together with the provision at the non-residence parent’s expense to the other parent of all school reports, school photographs and all other communications/newsletters from X’s school other than with respect to routine administrative matters;
(c)disciplinary matters other than those of a trivial nature;
(d)matters concerning the social development and sporting activities of X;
(e)matters concerning the religion, faith or culture and custom of X; and
(f)any matter regarding X in respect of which a parent should be informed or consulted with having regard to the provision of Part VII of the Family Law Act 1975 (Cth).
3.That notwithstanding Order 2 above, the mother is, without the written consent of the father or an order of the Court, restrained from:
(a)changing X’s name; and/or
(b)relocating X’s residence outside of the City B region.
4.That in the exercise of sole parental responsibility by the mother pursuant to these Orders, the mother must:
(a)inform the father of all decisions she proposes for X not less than fourteen (14) days prior to making a final decision (except in the case of an emergency) and invite the father’s written response to the proposed decision within a further seven (7) days;
(b)consider any views expressed by the father in writing received within seven (7) days of the mother’s notice of an intention to make a decision in accordance with Order 4(a) above; and
(c)notify the father in writing of the decision made by the mother as soon as practicable after making the decision.
5.That parents have parental responsibility for the day-to-day decisions relating to the care of X whilst she is in their care.
School term time
6.That subject to the conditions provided for in Order 9, during school term X shall spend time with the father at all times as agreed and failing agreement:
(a)each Wednesday from after school (or 3.00pm) until 7.00pm; and
(b)each alternate weekend from 6.00pm Friday until 5.00pm Sunday,
and for clarity, arrangements under Order 6(a) and (b) shall be suspended during any school holiday period.
School holidays
7.That subject to the conditions provided for in Order 9, X shall spend time with the father during the school holidays at all times as agreed and failing agreement:
(a)in December 2022/January 2023:
(i)from 9.00am Friday, 16 December 2022 to 5.00pm Monday, 19 December 2022 (three (3) nights);
(ii)from 9.00am Saturday, 24 December 2022 to 12.00pm Sunday, 25 December 2022 (one (1) night);
(iii)from 9.00am Sunday, 8 January 2023 to 5.00pm Thursday, 12 January 2023 (four (4) nights); and
(iv)from 9.00am Thursday, 19 January 2023 to 12.00pm Sunday, 22 January 2023 (three (3) nights).
(b)in 2023:
(i)for the Easter school holidays from 6.00pm Friday, 31 March 2023 until 5.00pm Wednesday, 5 April 2023;
(ii)for the June/July school holidays from 6.00pm Friday, 23 June 2023 to 5.00pm Wednesday, 28 June 2023;
(iii)for the September/October school holidays from 6.00pm Friday, 15 September 2023 to 5.00pm Wednesday, 20 September 2023;
(iv)for the Christmas school holidays (25 November to 24 January):
A.25 November 2023 to 2 December 2024;
B.7 December 2024 to 14 December 2024;
C.19 December 2024 to 24 December 2024;
D.12.00pm Christmas Day (25 December) to 10.00am Boxing Day; and
E.an additional period of five (5) nights as agreed between the parents in the period commencing 15 January 2024 and ending on the Thursday before the commencement of the 2024 school year.
(c)from 2024 and thereafter:
(i)the first five (5) nights of each of the end of term one (1), two (2) and three (3) school holiday periods, being from 6.00pm Friday on the last day of school to 5.00pm the following Wednesday;
(ii)in the December/January school holidays and in each year thereafter and subject to the provisions herein for Christmas Eve, Christmas Day and Boxing Day:
A.for two (2) periods of seven (7) days (but not consecutive) on dates to be agreed; and
B.from 9.00am Christmas Eve to 12.00pm Christmas Day in even numbered years and from 12.00pn Christmas Day to 10.00am Boxing Day in odd numbered years.
(d)For all school holiday periods that the child is to spend with the father, the father is to be substantially present, and if work commitments prevent him being substantially present then any alternate arrangements for the child to spend time with another family member shall be subject to the consent of the parents; and
(e)The provisions for the X’s time with the father in the 2024 end of term four (4) school holidays and thereafter are subject to the provisions for international travel set out at Order 21, if the mother elects to travel overseas with X.
8.That notwithstanding any previous Orders, X shall spend time with her parents on special occasions as follows:
(a)With the mother on Mother’s Day from 9.00am to 5.00pm;
(b)With the father on Father’s Day from 9.00am to 5.00pm; and
(c)On her birthday, with the parent she is not already living or spending time with:
(i)from 1.00pm to 5.00pm if not a school day;
(ii)from 4.00pm to 7.00pm on a school day.
Responsibilities of the parents
9.That when X is spending time with the father pursuant to these Orders, the following conditions shall apply:
(a)That during any time until 8.00pm:
(i)the father may permit the child, E born 2006 to spend time with X on the condition that the father must supervise E spending time with X;
(ii)the father is restrained from causing or permitting X to be left unsupervised in E’s care or presence.
(b)That at all times that X is spending time with the father, and E is present, the following shall apply:
(i)The father must ensure that X has the capacity to lock her bedroom door (in such a manner that only X and the father are able to unlock the door); and
(ii)The father must ensure that the bathroom and/or toilet at any residence the father occupies (or utilises for X to spend time with him) has the capacity to lock both the bathroom and/or toilet doors.
(c)That the father is restrained from permitting E to be present after 8.00pm at any place that X is attending, in particular any residence that X will be sleeping at whilst in the father’s care, and will remove X from any place that E is present at after 8.00pm with X, and if X is unable to return to the father’s residence, the father must cause X to be returned to the mother forthwith, save for special occasions when the time extends to no later than 10.00pm.
10.That the parents shall ensure:
(a)X’s Apple watch, or communication devices she may use from time to time if the Apple watch is no longer used by her in the future (“the devices”), are always charged and switched on whilst X is in their care;
(b)the devices are to be located, at X’s bedtime, in the room in which X is sleeping;
(c)X is able to contact the parents and the paternal grandmother Ms C using her devices at all times;
(d)the parents notify the other parent if there is any technical issue with the devices; and
(e)either parent can initiate contact with X using the devices at any reasonable time.
Restraints
11.That the parents are restrained from:
(a)discussing these proceedings with X, including but not limited to the following:
(i)discussing the content of an affidavit filed in these proceedings;
(ii)discussing the content of any of the family reports prepared in connection with these proceedings;
(iii)discussing the content of any documents returned in response to any subpoena issued in respect of these proceedings;
(iv)discussing any change to any of these Orders without the prior written approval of the other parent;
(v)publishing content/material (including but not limited to social media content or material) regarding the other parent, the other parent’s partner or the other parent’s family; and
(vi)publishing any content/material which in any way refers to comments upon any matter in evidence in these proceedings, or the child’s living arrangements.
12.That neither parent use physical force nor physical discipline on X.
13.That neither parent consume alcohol over the legal driving limit nor consume illicit drugs whilst the child is in their care.
14.That neither parent will denigrate the other or their family to, or in the presence or hearing of X, and shall direct any third party to refrain from doing so, and failing their compliance with such a direction shall remove X from that environment immediately.
Changeover
15.That unless otherwise agreed in writing, changeover shall occur as follows:
(a)On Wednesday during school term, with the father to collect X from D School or to make his own arrangements for the collection of X, and with the father to return X to the mother’s residence at the end of the visit; and
(b)All other changeovers will occur with the mother delivering the child to the father’s residence at the commencement of time to be spent with the father and the father returning the child to the mother’s residence at the end of each contact period with the father.
Telephone communication
16.That X may initiate communication at all reasonable times with either parent using her Apple watch or other communication device.
17.That noting it is desirable when a parent initiates prescribed telephone communication with X under these Orders that such communication, if possible, occur by way of FaceTime or similar method where the child and parent can see each other, until such time in the future when the child may have a mobile telephone device (additional to her Apple watch), X shall use her iPad or in its absence, the parent’s mobile phone.
18.That X shall communicate with the father by FaceTime or telephone (if FaceTime is not possible), initiated by the father, each alternate Friday between 6.00pm and 7.00pm (being the Friday before the weekend the child remains in the mother’s care) and also at least weekly when the child is in the mother’s care during school holiday periods.
19.That X shall communicate with the mother by FaceTime or telephone (if FaceTime is not possible) initiated by the mother at least once during any period that X is in the father’s care during school holiday periods under this Order.
20.That all telephone communication will be in private, unrecorded and uninterrupted, and for communication prescribed for a specific time, each parent shall ensure the device used by X is charged and in a locality where mobile access or (in the case of her iPad) internet access is available.
International travel
21.That the mother be permitted to travel overseas with X outside the Commonwealth of Australia, without having to obtain the written consent of the father or an order of this Court, on the following terms:
(a)That the mother notifies the father in writing three (3) months before such intended travel and provides the father with a full itinerary setting out details of flight departure and arrivals and particulars of where the child is likely to be staying when overseas;
(b)That the intended travel time shall in no way reduce X’s time with the father unless it is otherwise agreed in writing between parents, with the mother to provide the child with makeup time with the father should that become relevant;
(c)All travel is within periods the child would otherwise be in the care of the mother in Australia (unless otherwise agreed in writing); and
(d)Whilst the child is overseas the mother shall facilitate the child communicating with the father by FaceTime at least once a week and also within twenty four (24) hours of the child arriving in her initial overseas destination.
22.That the mother hold X’s passport on her undertaking to use it for the purpose of the arrangements for overseas travel provided for in these Orders.
Exchange of information and authorities
23.That the parents shall keep each other informed of X’s doctors, health care and other treatment providers, and this Order hereby authorises those practitioners to provide the other parent with information they are lawfully able to provide to the parents about X.
24.That the parents shall keep each other informed of any school, educational facility or extra-curricular activity that X attends and this Order authorises those providers to provide both parents with information they are lawfully able to provide to the parents about X.
25.That if there is a cost associated with the provision of any information or documents under these Orders from X’s doctors, health care and other treatment providers or school, educational facility or extra-curricular activity provider, the expense shall be borne by the parent requesting the information.
26.That the parents keep each other informed at all times of their residential address, an email address and contact telephone number, and notify each other within at least seven (7) days of any change.
27.That subject to the conditions imposed by X’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
28.That both parents shall, at all reasonable times, facilitate X attending all educational, sporting and hobby events and extra-curricular activities that she currently enjoys (noting that at this time they are both social and sporting), when X is with that parent.
29.That neither parent will arrange for X to engage in any new extra-curricular activities that impinge on the time she spends with the other parent, without the parents agreeing in writing.
30.That each parent will ensure X takes her medication when she is in their respective care in accordance with the prescription for that medication.
31.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That as the Reasons for Judgment delivered on the making of these Orders make clear, the Court is not satisfied, on the evidence at this time, that extending X’s holiday time more than ordered now, as was proposed by the father, is in her best interests and practicable.
B.That the parents are encouraged to engage in dispute resolution by 30 September 2024 in an endeavour to reach agreement to increase the child’s holiday time with the father from the commencement of the end of term 2024 school holidays, noting that if they are unable to do so, the Court understands the father may seek to vary the holiday arrangements by bringing a new parenting application.
C.That Orders 2, 3, 4 and 5 were originally made as final orders on 19 May 2022.
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 the pseudonym Carreira & Middleton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X now aged 11 years is the much loved only child of the relationship between the Applicant mother, Ms Carreira (“the mother”) and the Respondent father, Mr Middleton (“the father”), who finally separated in June 2015 when the child was four years of age.
When this final parenting hearing recommenced on 5 December 2022 the issues in dispute had significantly narrowed. I give credit to the parents, their legal representatives and the Independent Children’s Lawyer for their combined efforts in reducing the issues requiring my determination.
As a result of those efforts the trial proceeded with much shorter cross-examination of both parents and of the two expert witnesses – Ms F (the Court Child Expert) and Ms G (the child’s current treating Psychologist).
In keeping with the efficient way in which Counsel (as she then was), Ms McArdle for the mother, Mr Pack for the father and Ms Frizelle for the Independent Children’s Lawyer conducted the case before me, these Reasons are delivered orally and are much shorter than might otherwise have been necessary.
With reference to the issues to be decided, I have given consideration to the prescribed principles in respect of parenting orders. Namely, that in all cases involving parenting orders the child’s best interests are the paramount consideration. In determining those interests, the Court must consider not only the objects of s 60B of the Family Law Act 1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will, as relevant, be analysed, in a sense, through the following narrative.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
The orders I pronounce which are at the commencement of these Reasons serve the best interests of X in my view.
I am conscious of authority that makes it clear that it is not essential for me to mention every subsection of s 60CC of the Act in every case (see Rahal & Rahal [2022] FedCFamC1F 605 at [23]). Although it is necessary to identify the relevant facts and circumstances that are determinative of the particular decision having regard to how the case was conducted before me (Banks & Banks (2015) FLC 93-637).
To provide some context to what has, in many ways, been a difficult case at times I provide the following background.
BACKGROUND
Statement of facts which follow should be construed as findings of fact. When the father, aged 48 years old, and the mother, 42 years old, commenced cohabitation in August 2007 the father had a son, E, born in 2006 from an earlier relationship with Ms H. Sadly, Ms H suffered a serious medical episode in 2010 at the early age of 36 years and her capacity to care for E and play an active role in his life (despite her desire to do so) has since that time been very much compromised and limited.
When the mother and father separated in 2015, E and X (born 2011) were in the same household and by October 2015 the parties had agreed arrangements to share the care of the two children – further demonstrated by the consent parenting Orders made by me (when a Federal Circuit Court of Australia Judge) on 2 February 2017.
Although history reveals the equal time arrangements were difficult at times to manage, events in mid-2019 were a catalyst for some major changes and extensive litigation which has culminated in a trial which finished this week before me. In short, the main contextual features included:
(a)X reported that the father had physically disciplined E in an inappropriate way in mid‑2019 causing the mother to commence proceedings afresh on 5 September 2019 and resulting initially in interim orders made on 13 September 2019 that both children were to spend no time with the father;
(b)In late 2019 the father pleaded guilty to a charge of assault in respect of E and although no conviction was recorded he was ordered to pay a fine;
(c)In September 2020 the proceedings were transferred to the Family Court of Australia, (as it then was known). With the assistance of the Independent Children’s Lawyer, two family reports by Psychologist, Ms F, and a psychiatric assessment of the parties by Dr J were obtained and relied upon before me;
(d)Until I made orders shaped by the expert opinions (although untested) on 14 July 2021 for both E and X to begin spending physical time again with the father on a gradually increasing regime, there had been no physical time spent by either child with their father for many months;
(e)The father’s conduct towards E, however, was only one of the risk factors identified in the case. E’s behaviour had become troubling and although he has been diagnosed with an incurable condition and Attention Deficient Hyperactivity Disorder (“ADHD”), by at least mid-2021 E had self-placed, then aged 14 years, with his paternal grandparents Mr and Ms C because of his behaviour and the risk he was said to present to X. Ms F summarised some of his characteristics by her description which I accept that E “has cognitive deficits, is impulsive, socially immature and vulnerable”.
His inability to be aware and appreciate normal behaviour at sometimes led to an allegation that he may have behaved in a sexual way towards a girl at sport and then also at school causing the K School to expel him in 2021. The mother acting at all times protectively and with X’s best interests foremost in her mind when orders were made on 14 July 2021, sought orders and conditions that required any interaction between X and E to be supervised and, relevantly, an order relating to the use by X of an Apple watch (in those orders called a space watch) as a further protective measure were made. The continuance of that order on a final basis was initially a matter in dispute between the parents.
(f)I accept that during the period post cohabitation and because of the biological mother’s capacity issues, Ms Carreira was very much undertaking a parenting role for E which continued until he self-placed. Orders were made that the paternal grandparents could intervene in these proceedings and when parenting Orders for E were made on 18 May 2022. Ms Carreira found the negotiations and outcome of those Orders understandably difficult to accept, not the least because of her strong bond and prior relationship she had with E. The fact that she did so was, in my assessment, a further clear demonstration of how she was able to elevate the best interests of X to the highest level. It is to her credit that she has been able to do so. I was delighted to hear during the trial that Ms Carreira has facilitated safe interaction between X and E at her home in more recent times. That demonstrates to both children that she loves E as well and is keen for the siblings to have a long term relationship, provided it is safe;
(g)The final Orders for E made on 18 May 2022 and some agreed final orders for X made the following day on 19 May 2022 (that X live with the mother and the mother exercise sole parental responsibility with conditions) were all negotiated during the course of the time allocated to conduct the trial in May 2022. However, for reasons accepted by all parties, the hearing had to then be adjourned. Further interim orders were made on 20 May 2022 in respect of X’s time with the father and proceedings were again set down for a final hearing commencing 5 December 2022 for three days;
(h)Aware of the slight improvement in the co-parenting relationship (although still shaped as the updating affidavits reveal by high levels of distrust and poor communication), I ordered a children’s wishes report to permit the parents to hear independently via a Court Child Expert, Ms L, the current views of X. Before Ms F was briefly cross‑examined at the trial she also read, as I have, Ms L’s report dated 9 November 2022;
(i)The father’s initial applications, which he had maintained even to the filing of the latest case outline on 17 May 2022, that it is in the best interests of X to spend equal time with the parents. It was a matter for which the father deserves credit, in my view, that after he considered the recent children’s wishes report, he modified his position on the eve of trial in a significant way. Further discussions by the parties with the assistance of Counsel (and some hopefully helpful observations from the Bench) meant that the issues identified below were the only issues requiring determination;
(j)After hearing the evidence of Ms F and X’s counsellor, Ms G (in particular), I am satisfied that the child is easily distracted; functions best when she takes her ADHD prescribed medication as directed by a doctor; is vivacious and at times naive but that her outgoing personality and athletic appearance means she will benefit in being aware of protective training and strategies. This is not only so that she can better protect herself from inappropriate behaviour from E (if it were to occur in the future), but also as she moves to a new school and cohort and begins secondary studies in 2023 from the wider peer community in which she will interact. Ms G said that of the four counselling sessions this year, the last two sessions have been more focused on assisting X transition and adjust to a new high school. Although a further six sessions with Ms G are available, the need and frequency of such further therapy will depend on how she is progressing. I accept this evidence, which is helpful in better understanding the future parenting arrangements which are in her best interests.
I now determine the remaining issues in dispute between the parents.
ISSUE 1
Although during the course of the trial the father further modified his proposal for the length of alternate weekend time so that it begins at 6.00pm on a Friday (so as to allow the child to return to her mother’s home after school as she desired) and concludes on a Sunday, a dispute as to whether it concluded at 4.00pm (mother’s proposal) or 6.00pm (father’s proposal) existed. The Court observed on the evidence that 5.00pm seemed an appropriate time and, ultimately, the parents both adopted 5.00pm
In respect of the weekend time, since it commenced with two nights overnight there have been some weekends where on a Saturday night or maybe even a Friday night X was to spend the night at her aunt’s home, Ms M. On at least a couple of occasions the reason the father gave for this action on his part was that E was spending the weekend with him and the “curfew” which required E not to spend overnight time (past 8.00pm) when X was staying with the father, resulted in X going to the aunt’s home.
The arrangements and Orders for E to spend time with the father are less prescribed than those that will apply to X. The father has some flexibility with E. It is important for X to exercise the time ordered with the father, so as to build on their relationship that has been interrupted. The father now accepts, I believe, that if a child was to leave his home in such circumstances as in the past it should be E not X. Of course, X and E are able to spend significant day time with each other properly supervised.
In making these findings I accept that X enjoys spending time with Ms M and her cousin N who is of a similar age. That, however, is not the issue.
ISSUE 2
The continued need for X to have access to an Apple watch has been controversial. I am satisfied that X has been trained to understand and use the device, and that her Apple watch is a convenient device in which she can convey to her mother, and I believe her father, if she feels unsafe. The original intention was related to the conduct of E, and the evidence of Ms F and Ms G is that the availability of that device is still important for X and should be maintained.
The father’s initial concern was that the mother overuses the ability to contact X via the Apple watch when the child is in his care. Ms G says that X does not feel unsafe in the father’s home. That should give the mother some comfort but when E is also around at this time, on the current evidence, X’s ability to send a message quickly is important. I accept his evidence from Ms G.
X does not need to get comforting messages initiated by a caring and loving parent many times a day. It could cause a child to needlessly ponder why a parent continues to text or contact her; does it mean she should be worried about something; is she expected to respond or “report in”?
Frequent messaging could, as the father fears, interrupt a child’s time with the other parent. However, I am not satisfied it has in the past occurred and I am not satisfied that was the mother’s intention on the evidence. Ultimately, the former final Order around the Apple watch was effectively agreed. The order I pronounce does, in my assessment, satisfy the test of being in X’s best interests and permits her use of a device for her potential protection about which she has been trained and educated.
ISSUE 3
The discussion about the intent and use of the Apple watch led to a further examination of how telephone communication between X and the parent she is not in the care of at that time, is best achieved. Absent any real expert evidence, I am not satisfied that audio connection through the Apple watch is ideal. The screen at least is too small for FaceTime type exchanges where the child can see the parent ringing to speak with her. The child has an iPad I am informed which if connected to the internet has the required functions to facilitate FaceTime. I accept a decision as to when or if X should have a mobile phone is a dilemma many parents now have to confront, and as she gets older many of X’s peers are likely to have access to a mobile phone. They will know how to use it to communicate and likely will want to communicate with X in a similar manner.
The orders I now pronounce make communication electronically designed to facilitate X when speaking to her parents in an optimal way where she can see the parent and the parent can see her. This will only apply to prescribed time and not incidental time initiated by the child.
ISSUE 4
Changeover arrangements have some practical dimensions. It appears that for the agreed weekly Wednesday after school to 7.00pm time with the father the father is achieving this by returning the child to the mother’s home having collected her from school or from a bus stop as he arranges with X. The parents live only 15 minutes apart and the mother intends at times for X to use a school bus.
The orders I make are also shaped with the history of this matter and with a view that the child receive a clear and subtle message by a parent returning the child to the other parent that that parent supports that relationship continuing.
Of course, as the order I pronounce makes clear, the parents are able to change changeover arrangements by written consent which may occur from time to time as a matter of sensible practicality.
ISSUE 5
The initial proposal for school holiday time for X with the father raised some clear differences including:
(a)The progression of more extended time for the child to spend time with the father particularly from the school holidays at the end of term four in 2024. The mother initially proposed, essentially, a long weekend for each holiday with the father. The father wanted to move quickly to sharing holidays equally. After the Bench raised some concerns about the mother’s proposal for overnight time with the father, the mother modified her position to provide longer and more frequent blocks of holiday time for X to spend with the father. The order I pronounce reveals the parties had, essentially, at least for the next 12 months, agreed to specific dates;
(b)The father conceded that his employment allows him four weeks of leave per annum. The school calendar (Exhibit 2) for D School where X will attend next year shows that for the 2022 and 2023 school holidays a student would have more than a total of eight weeks holiday a year. The father certainly has some workplace flexibility (although no evidence from his current employer, where he commenced employment in October this year, was offered to the Court). He deposed that his sister, Ms M, and/or his parents would be able to assist when he was working (again without any evidence in support or corroboration being offered from these family members). There was some evidence at the time Ms F prepared her family report that the father’s relationship with his parents was estranged. Happily, that seems to have improved according to the father’s evidence. I take this evidence and uncertainty into account; and
(c)The mother gave evidence of both her desire to travel overseas (where she has friends and relations) and the ability to afford such travel for this child. The father’s ability to afford overseas travel is uncertain. The mother did take the child overseas to Country O and Country P in mid-2022 having, I find, given the father full details of her itinerary beforehand (see Exhibit 5). I am not satisfied that it is in the best interests of X to make orders for holiday time with the father of an equal nature where the father may not be available. Part of this arises from the conditions which are imposed on the time that E and X have together.
Holiday time is important for the relationship between the father and X. It gives them the opportunity to do things which, the mother conceded in evidence, the father does better than her being some outdoor activities and the like. I can anticipate as X gets older and some trust begins to return hopefully to the co-parenting relationship (which the history shows occurred for a period from separation until around August 2019 at least) that moving towards an equal time arrangement during holidays including the end of term four school holidays might be in the child’s best interests. However, to speculate now that this child could accept and cope with the extended time which the father seeks to have is, in my view, just that – speculation. I am concerned that making such an order now could lead to further proceedings and conflict.
As I advanced during the trial and submissions, and as Ms F in her evidence supported, I am satisfied to make arrangements during the holidays to and including 2024. I accept that the arrangements I have placed in the orders for the end of term four 2024 holidays might benefit from some modification by agreement. The Court provides a notation to the Orders that the parents should engage in some community based mediation to consider any increase of holiday time between the child and the father for the end of term four 2024 school holidays and thereafter.
It seems to me that once this trial has now completed, as it has, that these two capable parents should have the capacity to agree on variations which are in X’s best interests. Until the time the child spends over the holidays with the father is longer and he is available to demonstrate his increased availability, overseas holidays for the father with X really cannot occur.
As a result, I make an order for overseas travel for the benefit of the mother only not because I do not wish the child to spend overseas holidays with the father if that can be arranged but because on the evidence at the moment his work situations and the like it is impractical to make such an order.
Some of the other minor amendments to orders, many of which were consented to, are both as to intent and wording explained during the trial as the transcript demonstrates. For the reasons now given I find the Orders which are pronounced today and which appear at the commencement of these published Reasons, are in X’s best interests at this time.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 June 2023
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