Clements and Cummins

[2007] FamCA 805

FAMILY COURT OF AUSTRALIA

CLEMENTS & CUMMINS [2007] FamCA 805

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility
FAMILY LAW - CHILDREN – With whom a child spends time

APPLICANT: Mr Clements

RESPONDENT: Ms Cummins

FILE NUMBER: BRF 793 of 2005

DATE DELIVERED: 9 August 2007

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Monteith J

HEARING DATE: 16,17,18,19 & 20 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Mr Greg Lynham

SOLICITOR FOR THE RESPONDENT: LA Ward Legal

Orders

1.        Who the child lives with

1.1That T born in August 2003 (hereinafter referred to as the child) lives with the mother.

1. Parental Responsibilities

   2.1Each parent shall have the sole responsibility for the child’s day to day care, welfare and development during such times as the child is in each respective parent’s care.

   2.2      The mother shall have sole parental responsibility of the child.

   2.3That without limiting the parental responsibility pursuant to paragraph 2.2, each parent shall keep the other parent informed with respect to any major long term issue affecting the child.  For the purposes of these Orders, a “major long term issue” is:-

   2.3.1Any medical or health matter concerning the child other than a minor transitory illness or injury;

   2.3.2Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;

   2.3.3Matters relating to the education of the child, including, but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the child’s school (at each parent’s expense) other than with respect to routine or administrative matters;

   2.3.4Disciplinary matters other than of a trivial nature;

   2.3.5Matters concerning the social development and sporting activities of the child;

   2.3.6Matters concerning the religion or faith of the child;

   2.3.7Any intended change of place of domicile;

   2.3.8Any intended change in the surname by which the child is commonly known from that which appears on the child’s birth certificate;

   2.3.9Generally, any matter regarding the child in respect of which a parent should be informed having regard to the provisions of Part VII of the “Family Law Act 1975”.

   2.4Each parent shall give the other parent reasonable notice of any school, social or sporting event in which the child is involved so that both parents may have the opportunity to attend any such event.

   2.5Each parent shall be at liberty to visit the child at any time at her day-care or school (subject to the school’s regulations or day-care policies in that regard) with the intent that both parents may take an active role in the child’s ongoing education.

   2.6In the event that either parent wishes to take the child outside of the State or Territory in which the parent lives, for the purposes of a holiday the parent who proposes such travel shall provide the other parent with the following information not less than 14 days prior to the date of intended travel:-

   2.6.1Details of intended travel;

   2.6.2List of contact telephone numbers and addresses at which the child may be contacted in the case of an emergency (for the purposes of this Order the Australian Capital Territory and New South Wales shall be deemed to be the one State).

   2.7Each parent undertakes not to denigrate the other parent in the presence of the child and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence of the child.

   2.8Each parent shall at all times keep the other parent informed of his or her telephone number and residential and business address.

   2.9In the event the child becomes distressed during any period that the child is spending time with one of the parents of the child or the child expresses a continued desire to be returned to the other parent, then the first named parent shall take all reasonable steps to facilitate this occurring.

2. Who the child spends time with

   3.1Each parent shall be the primary care provider while the child is in their care.

   3.2The father is entitled to spend time with the child at all reasonable times as agreed between the parties, but failing agreement as follows:-

   3.2.1The father is entitled to spend time with the child from 9:00am Saturday to 6:00pm Sunday in the same locality in which the child lives, on any two weekends out of any four consecutive weekends (to be advised to the mother in writing two weeks in advance), except that:

   3.2.1.1The father shall not be entitled to spend time with the child during a weekend that falls during the following school holiday periods (in the State or Territory where the child lives):

   (a)  Easter

   (b)  June/July

   (c)  September

   3.2.1.2The father is entitled to spend time with the child for the first half of the following school holidays in even numbered years and the second half of such school holidays in odd numbered years:

   (a)  Christmas School Holidays

   (b)  June/July School Holidays

   (c)September School Holidays

   3.2.1.3The father is entitled to spend time with the child for the whole of the Easter school holidays in even numbered years and from Easter Tuesday to the end of the Easter school holidays in odd numbered years.

   3.3      AT ALL TIMES:-

   3.3.1If the parents are residing or visiting in the same locality for Christmas Day or Boxing Day:-

   3.3.1.1The father is entitled to spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day in even years, and from 2:00pm Christmas Day until 6:00pm Boxing Day in odd years;

   3.3.1.2The mother is entitled to spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day in odd years, and from 2:00pm Christmas Day until 6:00pm Boxing Day in even years.

   3.3.2If the parents are residing or visiting in the same locality for the child’s birthdays or the parents respective birthdays:-

   3.3.2.1The father or the mother as the case may be, is entitled to spend time with the child for no less than four (4) hours at such times as agreed between the parties.

   3.3.3If the parties are residing or visiting in the same locality for Fathers Day or Mothers Day:

   3.3.3.1The father or the mother as the case may be, is entitled to spend time with the child for no less than four (4) hours at such times as agreed between the parties.

   3.4All handovers at commencement and conclusion of the father spending time with the child pursuant to paragraphs 3.2.1.2 and 3.2.1.3 shall occur at the entrance to the Flight Lounge at Brisbane Airport and each parent shall be responsible for meeting the cost of the child’s respective travel with that parent to the handover point and also for their own respective travel costs to the handover point.

   3.5The child live with the either parent at such further or other times as may be agreed between the parents in writing.

1. Communicating with the Child

   4.1The parent with whom the child is not spending time with or living with (as the case may be), is entitled to communicate with the child by telephone at or about 6:30pm – 7:00pm each Wednesday and Sunday evening.  Notwithstanding this provision, the parent who is the primary care provider will not be obligated to alter commitments to enable such communication.

   4.2Each parent shall facilitate the child communicating with the other parent by telephoning at all reasonable times, should the child express a wish to do so.

   4.3The Parents shall be at liberty to maintain e-mail communications and communications by way of letter with the child.

2. Notwithstanding anything contained in these Orders, nothing shall prevent the parents from agreeing in writing to such further or other times for either parent to spend time with or communicate with the child.

3. In addition to any period specified for one parent to spend time with the child, and provided both parties are living within the same locality, should either party require the services of a baby-sitter for any period of time, they will give the other party the first option to baby-sit the child.

4. Within 60 days of the date of these Orders, the parties do all things necessary to cause the birth records of the child to:

   7.1      Record the father as the father of the child, and

   7.2alter the name of the child to ‘[T Cummins-Clements]’.

5. Interpretation

   8.1  For the purposes of the Orders:

   (a)A period of school holiday (other than Easter) commences on the first Saturday of the holiday period and ceases on the last Sunday of the holiday period;

   (b)“in the same locality” includes within a distance of 50 kilometres;

   (c)“Easter” means the gazetted school holiday period for Easter;

   (d)“June/July” means the gazetted school holiday period for June and/or July;

   (e)“September” means the gazetted school holiday period for September.

   (f)“Christmas school holiday” means the gazetted long school holiday at the end of each school year to the beginning of the next school year.

6. Injunctions

   The mother do be restrained and injunctions to be granted restraining her from the following:

   (a)From discussing with the said child any matters associated with proceedings before this Honourable Court and/or to do with child maintenance issues, or allowing the said child to remain in the vicinity of any persons discussing such proceedings and/or child maintenance issues and from making available to the said child (for the purposes of reading the said documents) any Family Court documentation filed herein, any child maintenance documentation and/or any correspondence from solicitors or each respective party.

   (b)Permitting, allowing, instructing and/or encouraging the said child to refer to the applicant Father as “[P]” and/or permitting any other person to so allow, instruct and/or encourage the child to do so.

   (c)Permitting, allowing, instructing and/or encouraging the said child to call the mother’s boyfriend, associate defacto partner (or other) being Mr B aka Mr G, by the words “Dad”, “Daddy”, “Father”, “Poppa” and/or by any other name that connotes or has the meaning that the said Mr B aka Mr G is the said child’s biological father.

   (d)Telling the said child that the applicant father is not the said child’s “real father” and/or any combination of words to that effect and/or permitting any other person to do so.

   (e)From removing the said child’s participation in any school or non school sporting event, school, social or educational event and/or child’s hobby and/or child’s special interest event that parents normally watch or participate in, by virtue of the applicant father’s presence as a spectator, volunteer and/or participant.

   (f)Permitting and allowing the mother’s defacto partner, Mr B; aka […], at any time, to be alone with the said child and/or to child mind the said child by himself and/or do any activity with the said child whereby there is no other responsible child safety conscious supervisor present at all times.

   (g)Using any other than the said child’s surname of “[Cummins-Clements]” and/or “[Clements-Cummins]” in respect of any school enrolment, school records, medical and hospital records, Centrelink and Medicare records and any applicable Commonwealth and any State Government records.

   (h)Removing the said child from the Commonwealth of Australia without Order of this Honourable Court and/or by written consent of the applicant father.

7. Liberty to apply.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Monteith delivered this day will for all publication and reporting purposes be referred to as CLEMENTS & CUMMINS.

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: Townsville BRF793 of 2005

Mr Clements

Applicant

And

Ms Cummins

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case involves the parenting arrangements with respect to a little girl, T, born in August 2003 (nearly four). 

2. The father, who was born in September 1969, is an officer in the Australian Defence Forces presently stationed in Canberra.  The mother, who was born in March 1969, is a officer in the Australian Defence Forces presently stationed in North Queensland.

3. The parties commenced cohabitation in a South Queensland town in August 2002 and separated in March 2003, some five months prior to the birth of their daughter.

4. Between the birth and early 2004, the father exercised approximately six periods of contact with the child under the mother’s supervision.

5. In June 2004, the mother moved to North Queensland to take up a permanent position with the Australian Defence Forces.

6. In March 2005, the father issues the present proceedings, he having not seen the child since early 2004.

7. The first orders for contact are made on 6 June 2005, by consent, ordering graduated supervised contact.

8. Further orders were made with respect to contact on 25 October 2005, but in late 2005, the father moved from the South Queensland town to Canberra to take up a position with the Air Force.

9. On 8 February 2006, further orders were made with respect to contact which was to occur in Brisbane. 

10. Difficulties arose with respect to this contact and as a result the father filed Contravention proceedings which were heard in the Federal Magistrates Court in Townsville.

11. It appears that the Contravention proceedings were heard on 15 August 2006 and the mother was convicted, but the decision in relation to penalty was reserved, and further orders with respect to the father spending time with the child, which are the current orders in place, were made.

12. Pursuant to those orders, the father spent the following time with the child on:

    30 September 2006 in Brisbane from 9:00am to 5:00pm. 

    In Brisbane from 9:00am on 1 October 2006 to 5:00pm on 2 October 2006. 

    In Brisbane on 3 October from 9:00am to 5:00pm. 

    In Brisbane on 4 October from 9:00am to 5:00pm on 6 October. 

    In Brisbane and the South Queensland town from 9:00am on 17 December to 12 Noon on 25 December. 

    In Brisbane from 9:00am on 24 February 2007 to 4:00pm on 25 February 2007. 

    In Canberra from Friday 6 April 2007 to Monday 9 April 2007

    And finally from 8:00am on 23 June 2007 until 4:00pm on 29 June 2007.

THE COMPETING PROPOSALS

1. In summary form, the father proposes that there be equal shared parental responsibility, that I order the respondent mother to apply for a co-location posting to Canberra or a central NSW city and that upon her co-location to Canberra, the child live with each parent and spend equal time with each parent over a two week cycle.

2. In the alternative, he proposes that if the child remains in North Queensland, the child spend time with him prior to the child commencing preschool each second month and for a week and half of Christmas school holidays.  From after the child commences preschool, in addition to the week every second month and half the school holidays, for the whole of the child’s mid term school holidays and for half of the child’s end of year school holidays (sic).

3. In summary, the mother seeks that she have sole parental responsibility and that the child live with her.  With respect to the child spending time with the father, the mother proposes that if the parents are living in the same locality, the father spend time with the child each alternate weekend and on each alternate Wednesday night.

4. If the parents are not living in the same locality, then the father is entitled to spend time with the child on any two weekends out of any four and half of the Easter, June/July and September school holidays and half of the Christmas school holidays.  She also proposes some orders with respect to special days which I do not think it is necessary to canvass here.

CO-LOCATION ORDER

1. The father in his Second Further Amended Application filed on 27 June 2007 sets out in considerable detail the orders that he contends I should make with respect to the mother applying for co-location posting to Canberra or central New South Wales.

2. This appears to be based upon a document entitled Defence Instructions (General) under the hand of Admiral Barrie, the then Chief of the Defence Force, on 12 August 1998.  The document became Exhibit 1 in these proceedings.

3. In the body of the document under the heading “Aim” it states:

   3.        The aim of this Instruction is to provide ADF policy for the collocation of couples who are members of different services.

4. Couples are defined:

   As two members of the opposite sex who are:

   a.lawfully married or in a de facto relationship recognised by the relevant Services, and

   b.are members of different Services.

5. Co-location is defined as follows –

   Collocation is deemed to exist where a couple is able to live in the same home and commute a reasonable distance between their home and their normal place of duty on a daily basis.

   The definition goes on to define what is a reasonable distance and that is not particularly relevant for these purposes.

6. The document goes on to provide under the heading “Responsibilities of Couples” as follows –

   8.  Declarations are to be made on career information or posting amplification forms, or as required by the respective parent Service.  In making such a declaration, both members are to inform their respective Service authorities of:

   a.        their desire to be recognised for collocation purposes; and

   b.the identity of their partner, including rank, name, service number and current unit.

   9.  One partner may voluntarily nominate as the priority member for career progression purposes.  This may assist posting authorities by potentially broadening the scope for collocating postings.  A couple may withdraw the nomination or exchange the identity of the career priority member at any time by advising their respective Service authorities.  Such change will only have effect when the next postings are considered for the couple in the normal course of the posting cycle.

7. In his Second Further Amended Application, the father proposes that I order the mother complete and fill out Section 4 Applicant’s Statement and Supporting Documentation in the PE166A Application with a form of words which provide amongst other things that he is nominated as the priority member for career progression purposes.

8. The effect of that, as I understand it, is that his career would take precedence over the mother’s and that she would be posted to wherever he was posted pursuant to the co-location policy.

9. As I pointed out to the father, not only is it clear that this co-location policy relates to couples, which they are not, but I do not have the power to order the mother to sign an application requesting immediate co-location and posting to Canberra as a first option or Central New South Wales as a second option.  Moreover, even if I had the power, in the present circumstances I would not exercise it.

PRESENT AND FUTURE POSTINGS OF THE PARTIES

1. The father is an officer in the Australian Defence Forces presently posted to Canberra.  He is 37 years of age and his expectation is that he will stay in the Services until retirement age, which is 60.  His present posting is for three years but he gave evidence that he could see six to nine years in Canberra, because of his administrative job.  The position that he is presently occupying is one that would normally be filled by a Squadron Leader and he is acting as a Squadron Leader presently.  He is hopeful that he will get promoted, in the next year or so, to Squadron Leader.

2. His Commanding Officer, W, was called to give evidence and amongst other things said that the father would not be moved from Canberra because of his special skills and the role he was fulfilling.

1. When, during the mother’s case, it became clear that there was a possibility that the mother might be transferred to Brisbane, the father suggested that he too might be transferred to Brisbane.  That was a suggestion made from the Bar table.  On the evidence before me I have to conclude that it is likely that the father will remain in Canberra for at least the next six to nine years.

2. The mother, as I have already said, is an officer in the Australian Defence Forces presently stationed in North Queensland.  The father subpoenaed records from the Department of Defence during the course of the trial and they became Exhibit A in the proceedings.  She gave evidence that her Unit wanted her to go to Brisbane but her preference was to stay in North Queensland.

3. The circumstances of a possible transfer to Brisbane arise because she has family support in Brisbane, she has injured her back and as a result has a medical classification which restricts the type of duties that she can perform and lastly has the additional complicating factor of these proceedings and the fact that under the current orders changeover is in Brisbane.

4. She gave evidence that because of her financial position she had been driving to Brisbane and back for the purposes of changeover and this was causing her trouble with her back.

5. As a result of all of that an application has been made by her for a transfer to Brisbane and that application has been recommended.  If it takes place it would take place in early 2008 but it will only take place if the Unit to which she is transferring is prepared to accept her having regard to her medical certificate.  Further, there is the possibility that she maybe discharged as medically unfit.  That is a matter that is going to a review board.  If she is discharged she gave evidence that she had not thought about what she would do.  She may go to Brisbane, where her family is, or she may remain in North Queensland where she says the children are settled and where it is her preference to stay.

6. On the present state of the evidence I have concluded that I have to decide this case on the basis that it is likely that the father will remain in Canberra for the foreseeable future and that the mother will remain in North Queensland for the foreseeable future.

7. That being the case there is no issue with respect to with whom the child lives see paragraph 7A of the Second Further Amended Application filed 27 June 2007.

8. What I have to decide, apart from some ancillary orders that I will deal with later, is the issue of parental responsibility and the issue of what time the father spends with the child.

PARENTAL RESPONSIBILITY

1. Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child that the child’s parents are to have equal shared parental responsibility for the child.

2. This presumption is subject to sub-section 2 which provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.  Neither of those factors apply to this case.

3. However, by sub-section 4 the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. The father contends that I should make an order for equal shared parental responsibility for the child.  Mr Lynham, of Counsel, who appeared on behalf of the mother, submits that I should make an order for sole parental responsibility in favour of the mother.

5. The father gave evidence that he and the mother never communicate by email, telephone or by letter.  They have very limited communication at changeover, he said it amounted to “Hello, goodbye”.  He said communication was difficult if not impossible. 

6. The mother gave evidence that she was unable to communicate with the father about the child.  She said that she and the father would not ever be able to agree on a school and she did not believe they would be able to make a decision together.  She said she was unable to communicate with him as he is very stern, demanding and “We can’t agree, we come to loggerheads”.  She went on to say with respect to religion that she was Catholic and she did not even know what religion the father was.  She said:

   It would be nice to discuss but you always demand things of me.

7. She said he had an assertive, demanding nature:

   We can’t discuss like normal parents.  I don’t believe that we could discuss schooling.

8. Some further evidence of the father’s attitude was to be seen in his evidence where he said amongst other things:

   I expect she will follow me.  My career is more important than hers.  I have a view of indifference towards her.  My career progression is more important than hers.

9. Also there is an email which is exhibited to the wife’s affidavit being TVC1 which clearly demonstrates the rigidity and demanding nature of the father.

10. Ms H, who holds a Masters of Social Work Degree from a Queensland University and a Degree of Bachelor of Social Work from a New South Wales University provided a Family Report in these proceedings.  She also gave evidence. 

11. In her evidence on this point she said:

    I formed a view about the father and I felt his approach was rigid and not focused on [the child].  He was more focused on his needs than the child’s needs.  I formed the view that communication between these parents was difficult at best and that the mother felt intimidated by [the father].

12. She held the view that it would take some time for them to be able to communicate together and she did not recommend to me that I should make an order requiring the parents to attend courses about better communication because she thought it would be unproductive.

13. On the basis of that evidence, I am satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

TIME THAT THE FATHER SHALL SPEND WITH THE CHILD

1. I have set out earlier in this Judgment the competing proposals with respect to this and I do not propose to set it out again.  Fundamentally what is in issue is that the father contends that he should have time with the child for one week every second month, all of the mid term school holidays and half of the Christmas school holidays.  The mother on the other hand contends that the father should spend half of the school holidays with the child.

2. In closing submissions there was some alteration of the parties’ positions.  The mother sought alternate Easters and the father sought every Easter and then it was agreed at the Bar table that the mother would have from Good Friday to Easter Monday each alternate year with the father to have the balance and alternate years the father to have the child for the whole of Easter.

3. The evidence on this issue from the mother was that she got four weeks a year leave together with public holidays.  How she takes this leave is dependent on the Defence Forces.  She said that she injured her back in November 2005 and her doctors prefer that she does not travel.

4. She said that with respect to one week every two months the difficulties for her were that she drives to Brisbane and would spent the week in Brisbane.  She would therefore have to take a week off and have to take the child’s stepsister out of school.  Further, the child would have to take time off school once she started school or preschool.  She said she drove down to Brisbane because it was cheaper and this was significant in relation to her financial commitments.

5. She said that she agreed with the father having half Christmas school holidays but as he had them for Christmas Day last year she wanted them for the first half of the Christmas school holidays this year so she could have Christmas Day with the child.

6. She said she did not agree with every school holidays, she agreed with half school holidays.

7. Ms C, who holds a Degree of Bachelor of Social Work from the University and a Degree of Bachelor of Arts from the University, a Social Worker, provided a Family Report and also gave evidence. 

8. On this point she said the child’s primary attachments were with her mother and she is just moving into adding to that attachment.  She said that extended periods away from her mother may be quite challenging including absence from her step-sister, Y.  She said that the child had a very close bond with Y, that that bond would strengthen over time and it was important to maintain that sibling bond.

9. She said that the father’s proposals would not be in the child’s best interests.  The child is not quite four and for her to spend all of the holidays with the father would be too much and not in her best interests.  Also it would severely limit the sibling bond which would not be in her best interests.

10. Ms H, who I have previously referred to, gave evidence on this point to the effect that extended time with the father in Canberra, slotting in and out of day-care, would be difficult for her.  She thought a week would be okay but all school holidays would be difficult for her.  She thought that two weeks may be too much until she is five.  She thought that the father’s proposals were putting too much pressure on the child, whereas the mother’s proposals the child could cope with.  She had some concerns about the three weeks at Christmas.  She would not support all mid term school holidays.

11. On all of that evidence, I find that there is some impracticality in relation to the father’s proposals and in addition they do not reflect orders that I should make that are in the best interests of the child. 

12. On the other hand, the orders proposed by the mother seem more closely to reflect what is in the best interests of the child.

13. Having considered those matters that are relevant under section 60CC, I have concluded that it would be in the best interests of the child to make the following orders.

ORDERS

1.        Who the child lives with

1.2That T born in August 2003 (hereinafter referred to as the child) lives with the mother.

1. Parental Responsibilities

   2.10Each parent shall have the sole responsibility for the child’s day to day care, welfare and development during such times as the child is in each respective parent’s care.

   2.11    The mother shall have sole parental responsibility of the child.

   2.12That without limiting the parental responsibility pursuant to paragraph 2.2, each parent shall keep the other parent informed with respect to any major long term issue affecting the child.  For the purposes of these Orders, a “major long term issue” is:-

   2.12.1Any medical or health matter concerning the child other than a minor transitory illness or injury;

   2.12.2Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;

   2.12.3Matters relating to the education of the child, including, but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the child’s school (at each parent’s expense) other than with respect to routine or administrative matters;

   2.12.4Disciplinary matters other than of a trivial nature;

   2.12.5Matters concerning the social development and sporting activities of the child;

   2.12.6Matters concerning the religion or faith of the child;

   2.12.7Any intended change of place of domicile;

   2.12.8Any intended change in the surname by which the child is commonly known from that which appears on the child’s birth certificate;

   2.12.9Generally, any matter regarding the child in respect of which a parent should be informed having regard to the provisions of Part VII of the “Family Law Act 1975”.

   2.13Each parent shall give the other parent reasonable notice of any school, social or sporting event in which the child is involved so that both parents may have the opportunity to attend any such event.

   2.14Each parent shall be at liberty to visit the child at any time at her day-care or school (subject to the school’s regulations or day-care policies in that regard) with the intent that both parents may take an active role in the child’s ongoing education.

   2.15In the event that either parent wishes to take the child outside of the State or Territory in which the parent lives, for the purposes of a holiday the parent who proposes such travel shall provide the other parent with the following information not less than 14 days prior to the date of intended travel:-

   2.15.1Details of intended travel;

   2.15.2List of contact telephone numbers and addresses at which the child may be contacted in the case of an emergency (for the purposes of this Order the Australian Capital Territory and New South Wales shall be deemed to be the one State).

   2.16Each parent undertakes not to denigrate the other parent in the presence of the child and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence of the child.

   2.17Each parent shall at all times keep the other parent informed of his or her telephone number and residential and business address.

   2.18In the event the child becomes distressed during any period that the child is spending time with one of the parents of the child or the child expresses a continued desire to be returned to the other parent, then the first named parent shall take all reasonable steps to facilitate this occurring.

2. Who the child spends time with

   3.6Each parent shall be the primary care provider while the child is in their care.

   3.7The father is entitled to spend time with the child at all reasonable times as agreed between the parties, but failing agreement as follows:-

   3.7.1The father is entitled to spend time with the child from 9:00am Saturday to 6:00pm Sunday in the same locality in which the child lives, on any two weekends out of any four consecutive weekends (to be advised to the mother in writing two weeks in advance), except that:

   3.7.1.1The father shall not be entitled to spend time with the child during a weekend that falls during the following school holiday periods (in the State or Territory where the child lives):

   (a)  Easter

   (b)  June/July

   (c)  September

   3.7.1.2The father is entitled to spend time with the child for the first half of the following school holidays in even numbered years and the second half of such school holidays in odd numbered years:

   (a)  Christmas School Holidays

   (b)  June/July School Holidays

   (c)September School Holidays

   3.7.1.3The father is entitled to spend time with the child for the whole of the Easter school holidays in even numbered years and from Easter Tuesday to the end of the Easter school holidays in odd numbered years.

   3.8      AT ALL TIMES:-

   3.8.1If the parents are residing or visiting in the same locality for Christmas Day or Boxing Day:-

   3.8.1.1The father is entitled to spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day in even years, and from 2:00pm Christmas Day until 6:00pm Boxing Day in odd years;

   3.8.1.2The mother is entitled to spend time with the child from 2:00pm Christmas Eve until 2:00pm Christmas Day in odd years, and from 2:00pm Christmas Day until 6:00pm Boxing Day in even years.

   3.8.2If the parents are residing or visiting in the same locality for the child’s birthdays or the parents respective birthdays:-

   3.8.2.1The father or the mother as the case may be, is entitled to spend time with the child for no less than four (4) hours at such times as agreed between the parties.

   3.8.3If the parties are residing or visiting in the same locality for Fathers Day or Mothers Day:

   3.8.3.1The father or the mother as the case may be, is entitled to spend time with the child for no less than four (4) hours at such times as agreed between the parties.

   3.9All handovers at commencement and conclusion of the father spending time with the child pursuant to paragraphs 3.2.1.2 and 3.2.1.3 shall occur at the entrance to the [Flight] Lounge at Brisbane Airport and each parent shall be responsible for meeting the cost of the child’s respective travel with that parent to the handover point and also for their own respective travel costs to the handover point.

   3.10The child live with the either parent at such further or other times as may be agreed between the parents in writing.

3. Communicating with the Child

   4.1 The parent with whom the child is not spending time with or living with (as the case may be), is entitled to communicate with the child by telephone at or about 6:30pm – 7:00pm each Wednesday and Sunday evening.  Notwithstanding this provision, the parent who is the primary care provider will not be obligated to alter commitments to enable such communication.

   4.2 Each parent shall facilitate the child communicating with the other parent by telephoning at all reasonable times, should the child express a wish to do so.

   4.3 The Parents shall be at liberty to maintain e-mail communications and communications by way of letter with the child.

4. Notwithstanding anything contained in these Orders, nothing shall prevent the parents from agreeing in writing to such further or other times for either parent to spend time with or communicate with the child.

5. In addition to any period specified for one parent to spend time with the child, and provided both parties are living within the same locality, should either party require the services of a baby-sitter for any period of time, they will give the other party the first option to baby-sit the child.

6. Within 60 days of the date of these Orders, the parties do all things necessary to cause the birth records of the child to:

   7.2      Record the father as the father of the child, and

   7.2alter the name of the child to ‘[T Cummins-Clements]’.

7. Interpretation

   8.1  For the purposes of the Orders:

   (a)A period of school holiday (other than Easter) commences on the first Saturday of the holiday period and ceases on the last Sunday of the holiday period;

   (a)“in the same locality” includes within a distance of 50 kilometres;

   (b)“Easter” means the gazetted school holiday period for Easter;

   (c)“June/July” means the gazetted school holiday period for June and/or July;

   (d)“September” means the gazetted school holiday period for September.

   (e)“Christmas school holiday” means the gazetted long school holiday at the end of each school year to the beginning of the next school year.

8. Injunctions

   The mother do be restrained and injunctions to be granted restraining her from the following:

   (a)From discussing with the said child any matters associated with proceedings before this Honourable Court and/or to do with child maintenance issues, or allowing the said child to remain in the vicinity of any persons discussing such proceedings and/or child maintenance issues and from making available to the said child (for the purposes of reading the said documents) any Family Court documentation filed herein, any child maintenance documentation and/or any correspondence from solicitors or each respective party.

   (b)Permitting, allowing, instructing and/or encouraging the said child to refer to the applicant Father as “[P]” and/or permitting any other person to so allow, instruct and/or encourage the child to do so.

   (c)Permitting, allowing, instructing and/or encouraging the said child to call the mother’s boyfriend, associate defacto partner (or other) being [Mr B] aka [Mr G], by the words “Dad”, “Daddy”, “Father”, “Poppa” and/or by any other name that connotes or has the meaning that the said [Mr B] aka [Mr G] is the said child’s biological father.

   (d)Telling the said child that the applicant father is not the said child’s “real father” and/or any combination of words to that effect and/or permitting any other person to do so.

   (e)From removing the said child’s participation in any school or non school sporting event, school, social or educational event and/or child’s hobby and/or child’s special interest event that parents normally watch or participate in, by virtue of the applicant father’s presence as a spectator, volunteer and/or participant.

   (f)Permitting and allowing the mother’s defacto partner, Mr B; aka […], at any time, to be alone with the said child and/or to child mind the said child by himself and/or do any activity with the said child whereby there is no other responsible child safety conscious supervisor present at all times.

   (g)Using any other than the said child’s surname of “[Cummins-Clements]” and/or “[Clements-Cummins]” in respect of any school enrolment, school records, medical and hospital records, Centrelink and Medicare records and any applicable Commonwealth and any State Government records.

   (h)Removing the said child from the Commonwealth of Australia without Order of this Honourable Court and/or by written consent of the applicant father.

1. Liberty to apply.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate: 

Date: