Darlow & Darlow
[2022] FedCFamC1F 1098
•5 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darlow & Darlow [2022] FedCFamC1F 1098
File number(s): BRC 3158 of 2019 Judgment of: HOWARD J Date of judgment: 5 May 2022 Catchwords: FAMILY LAW – PARENTING – ex tempore reasons – application for final consent orders to be made - where applicant and respondent agree but Independent Children’s Lawyer not in a position to consent to certain orders – where issues in dispute were limited to extra-curricular activities - whether parenting orders should be made – whether proposed orders are in the children’s best interests Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAA Cases cited: Bennett and Bennett (1991) FLC 92-191
Benson & Jeffreys [2019] FamCA 793
Campbell & Bouchard [2014] FCCA 2293
Parch & Rile [2015] FamCA 128
Thistle & Thistle (No.2) [2014] FamCA 67
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 4 and 5 of May 2022 Place: Brisbane Counsel for the Applicant: Ms Gover Solicitor for the Applicant: Raiti Lawyers Counsel for the Respondent: Mr Carlton Solicitor for the Respondent: Norris Law Counsel for the Independent Children's Lawyer: Dr Sayers Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor ORDERS
BRC 3158 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DARLOW
Applicant
AND: MR DARLOW
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous orders be discharged.
2.That (subject to these orders) the Mother shall have sole parental responsibility in relation to major long-term issues affecting the children, X born 2010 and Y born 2014 ("the children"), including but not limited to:
(a)The children's education (both current and future);
(b)The children's health; and
(c)The children's religious and cultural upbringing.
3.That in exercising sole parental responsibility:
(a)The Mother is to inform the Father of the decision she intends to make for the children via email;
(b)The Father is to respond within 7 days of receiving the communication and indicate his position and reasons for his position in relation to the decision;
(c)The Mother and Father are required to make a genuine effort to come to an agreement;
(d)Should the Mother and Father be unable to agree, the Mother is to inform the Father of the final decision made within forty-eight (48) hours of the making of the decision.
4.That the Mother will:
(a)Ensure that all educational and medical providers as well as any other organisation relevant to the children are informed of and provided with the Father's contact details and an authority to speak with the Father in relation to the children's progress and this Order is authority for such organisations to speak with the Father in relation to the children.
(b)Provide the Father with a list of names and contact details of each service provider within 7 days of the date of changing any service provider or obtaining a new service provider to that referred to in the notations to the Orders.
5.That in exercising parental responsibility, the Mother is to follow the recommendations made by the children's paediatrician (who is currently Dr C), and any other recommendations made by other medical professionals that the children attend upon from time to time upon referral made by Dr C.
Living arrangements
During the school term
6.That the children live with the Mother.
7.That the children shall spend time with the Father from after school Wednesday (or 3:00pm in the event of a non-school day) until the commencement of school on Monday in each alternate week.
8.That in the event the Monday referred to in the immediately preceding order is a public holiday, changeover will occur on Tuesday before school.
Special days
9.That unless otherwise agreed, the children shall spend special occasions with the Mother and Father as follows:
(a)Mother's Day and Father's Day:
(i)The children shall spend time with the Mother from midday the day prior to Mother's Day until 4:00pm on Mother's Day;
(ii)The children shall spend time with the Father from midday the day prior to Father's Day until 4:00pm on Father's Day;
(b)Mother's and Father's birthdays:
(i)The children shall spend time with the Mother and Father on the Mother and Father's birthday from 3:00pm until 7:00pm if falling on a school day, or otherwise if falling on a weekend from 4:00pm on the day prior to the parent's birthday until 4:00pm on the day of the parent's birthday.
(c)The children's birthdays:
(i)The children shall spend time with the parent who they are not otherwise in the care of that day pursuant to these orders, on their birthdays from after school if falling on a school day (and if not falling on a school day from 3:00pm) until 7:00pm.
(d)Sibling's birthdays:
(i)The children shall spend time with their half-siblings and step siblings on their respective half-siblings and step sibling's birthdays from after school and if not falling on a school day from 3:00pm until 7:00pm.
During the school holidays
10.That the children shall spend time with the Mother and Father during their school holiday periods at all reasonable times as may be agreed between the parents and failing agreement as follows:
(a)For the Easter, June/July and September/October school holidays:
(i)with the Father in the first half of the school holiday period in all odd number years;
(ii)with the Mother in the second half in all odd numbered years;
(iii)with the Father in the second half of the school holiday period in all even number years; and
(iv)with the Mother in the first half in all even numbered years.
(b)For the Christmas school holidays, for the first half of the school holiday period in all even numbered years commencing 2022 with the Mother and for the second half of the school holidays period in all even numbered years with the Father;
(c)For the Christmas school holidays for the first half of the school holiday period in odd numbered years commencing 2023 with the Father and for the second half of the school holiday periods in all odd numbered years with the Mother.
(d)For the purposes of these orders, the school holiday time should commence:
(i)When a parent's time falls in the first half of the school holidays, from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the school holidays;
(ii)When a parent's time falls in the second half of the school holidays, from 5:00pm on the day calculated to represent half of the school holidays when time shall end at 5:00pm on the day prior to the day the school term recommences;
(iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 5:00pm on the day prior to the children returns to school with the children to be returned to the Mother if in the Father’s care; and
(iv)The number of nights in each school holiday period is to be used to calculate on half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
Telephone communication
11.That:
(a)the Mother and Father are at liberty to communicate with the children when they are not spending time with them by FaceTime or telephone between 6:30pm and 7:00pm each Tuesday and Thursday, with the parent the children are not spending time with to initiate the call and the other parent to facilitate the call including but not limited to:
(i)Ensuring that the children are available to receive the FaceTime or telephone call;
(ii)Arranging for the children to FaceTime or telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the FaceTime or telephone call from the other parent; and
(iii)Ensuring that the children have privacy during the conversation.
(b)the children be at liberty to call either parent at any reasonable time.
Changeover
12.That unless otherwise agreed, changeover shall occur on school days at the children's school, or otherwise at McDonald's B Shopping Centre at the play area if a non-school day.
13.That in the event either party is unable to personally attend changeover, then each party is at the liberty to nominate an adult known to the children and the other party to facilitate changeover.
14.That for the avoidance of doubt, if changeover is on a school day, the Father is to take the children to school, and the Mother shall collect the children from school at the end of the school day.
Overseas travel
15.That the Mother and Father shall do all acts and sign all documents necessary to:
(a)obtain a passport for the children; and
(b)ensure that the children's passport remains current with an expiry date of no less than six (6) months' validity at any time including, but not limited to:
(i)signing all documents necessary to support a passport application or passport renewal application;
(ii)confirming their consent to the issue of a passport in accordance with these Orders upon request by the Passport Office; and
(iii)meeting payment of one half each of the costs of any passport renewal or passport application.
16.That the Mother continue to hold the children's passports.
17.That the Mother is to deliver the children's passports to the Father within 48 hours of any request being made by the Father (by registered post) and the Father is to return the passports to the Mother within 7 days of his return from holiday (by registered post).
18.That pursuant to section 65Y of the Family Law Act 1975 (Cth), the parents are at liberty to travel interstate and outside of the Commonwealth of Australia (limited to countries that are a signatory to the Hague Convention) with the children and during their time with the children or at any other time and the children are not to miss more than a few days of school provided that:
(a)The travelling party is not to travel for a period more than three (3) weeks;
(b)That the parent wishing to travel provides to the other parent sixty (60) days’ notice of their intention to travel;
(c)The parent wishing to travel provides a detailed itinerary with the children's contact details and relevant travel details including accommodation and flight details, no less than fourteen (14) days prior to the date of departure;
(d)The parent wishing to travel shall have regard to any upcoming special days for the other parent including graduations, conferment days and weddings.
Specific issues
19.That for the avoidance of doubt, a "school day" is a day that the children's school is in session.
20.That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address, email address, landline contact telephone number and mobile contact telephone number, and advise of any changes thereto within 24 hours of the change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorize those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable via telephone of any emergency or serious medical condition.
21.That during their time with the children, the Mother and Father shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully while in the presence of the children;
(c)Not expose the children to discussions in relation to these orders;
(d)Not denigrate or insult the other parent, their parents, or partners in the presence or hearing of the children and use their best endeavours to ensure that the others do not denigrate or insult the other parent, their parents, or partners in the presence or hearing of the children.
22.That the Mother and Father shall communicate about issues concerning the children's day-to-day care via email.
23.That the Mother and Father shall do all things necessary to ensure that the other parent is listed as an emergency contact with all allied health care providers, medical practitioners, day care providers, schools or extracurricular activities that the children may attend from time to time.
24.That these orders shall operate as any authority necessary for any allied health care provider including but not limited to medical practitioner, specialist or hospital treating the children and any day care and/ or educational facility which the children may attend upon from time to time to provide to the other parent such information as they may request regarding the children's health, welfare and development at their own expense.
25.That these orders shall operate as any authority necessary for the children's schools to communicate with the Father and provide to the Father school reports, updates, information as to their progress, photographs, school activities and any other information in which parents are entitled to receive.
26.That each parent will be at liberty to attend the children's extra-curricular activities, co-curricular activities, parent teacher interviews, school events, and any other activities in which parents are invited to attend.
27.That both parents will have separate school uniforms, clothes, toys and all other belongings for the children.
THE COURT ORDERS ON A FINAL BASIS:
28.That:
(a)neither parent shall enrol a child in extra-curricular or co-curricular activities which are to occur while that child is in the other parent’s care, without that other parent’s consent; and
(b)the parents shall facilitate the attendance of a child at such agreed extra‑curricular or co-curricular activities as may be required by the terms of any operative bursary or scholarship.
29.That subject to any appeal of these Orders, the Independent Children’s Lawyer be discharged within 28 days.
30.That Dr C and Mr E are excused from any requirement to attend Court as previously directed by the subpoenas dated 12 April 2022.
IT IS NOTED:
A.That paragraphs 2–9 of these Orders were made by the Court with the consent of only the mother and father, as the Independent Children’s Lawyer was not in a position to consent to said orders.
B.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 5 May 2022 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is a parenting case involving two children, X, born 2010, and Y, born 2014. They are the children of the applicant mother, Ms Darlow, and the respondent father, Mr Darlow. The parents are both medical professionals. The father was born in 1983, the mother was born in 1984. The parents were engaged to be married in 2008. The parents appear to have been married in Country D in late 2008 and commenced living together in mid‑2009. X was born overseas in 2010. In 2012 the parents migrated to Australia from Country F. Y, of course, was then born in Australia. The parties separated in August of 2018.
For present purposes the current operative parenting order dates from 7 May 2019. I stand to be corrected. I would ask that the parties confirm that shortly for me. By that order which was made by Judge Middleton in the Federal Circuit Court of Australia as it was then known, the children were to live primarily with the mother and spend time with the father for four nights per fortnight commencing at about 3.00pm or at least from after school on a Wednesday until 4.00pm Sunday each alternate week. There has been some significant conflict between these parents, both prior to the commencement of the litigation and most especially since the commencement of the litigation. The matter was originally in the Federal Circuit Court of Australia before being transferred to this Court.
At the time of the transfer to this Court this Court was known as the Family Court of Australia. The matter was scheduled for trial on at least one occasion but needed to be adjourned due to lack of preparation. The matter was listed for a nine day hearing to commence before me on 3 May 2022. Ms Gover of Counsel appears for the mother. Mr Carlton of Counsel appears for the father and Dr Sayers appears on behalf of the Independent Children’s Lawyer. The parents spent most of yesterday and then again this morning in an attempt to reach a consent position. A consent position between the parents is highly desirable in this case, given that there has been such significant ongoing parental conflict.
A consent position sends a message, first of all, from one parent to the other, but then generally to the family comprising the parents, their new partners and eventually the children, that the parents were able to reach an agreement, notwithstanding their very different points of view concerning some very important matters relating to their children and relating to the upbringing of their children. There was, for instance, significant conflict in relation to whether or not the mother was fixated on X’s health and medical issues relating to X. Many of these topics have been referred to by Dr Sayers during his submissions. I called on Dr Sayers to make submissions this afternoon because the Independent Children’s Lawyer is not in a position to consent to the orders agreed between the parents. I’ve read the orders and I indicated to the parties that I will be making these final orders and they will be noted to be made with the consent of the parents, and it will be noted that the Independent Children’s Lawyer was not in a position to provide consent.
The proposed orders provide that the children will live with the mother and spend five nights a fortnight with the father. Then there are sensible orders in relation to holiday time etcetera. The Independent Children’s lawyer is, in fact, prepared to consent to orders numbered 10 through to 28, but not including 27.
Indeed, paragraph 27 of the draft is not agreed between the parents and I will determine that shortly after hearing from the parties and, if necessary, hearing oral testimony about that paragraph as well. The Independent Children’s Lawyer is in a position to consent to paragraphs 10 through to 28 inclusive, but not 27. In relation to paragraphs 2 through to 9 inclusive, the Independent Children’s Lawyer’s position is that the Independent Children’s Lawyer does not consent, and I’ve heard submissions from Dr Sayers as to the reasons and the view that I have formed is that the parents are in the very best position to reach an agreement in relation to the proposed orders for their children and this much was, of course, noted by Dr Sayers in his submissions. At least it was alluded to by Dr Sayers.
The Independent Children’s Lawyer was concerned because of some of the matters raised by Ms H, and I’m familiar with Dr Sayers’ submissions here obviously and I’ve taken them into account and I’ve had regard to the various paragraphs that Dr Sayers has referred to including, but not limited to paragraphs 252 and 254, and the Independent Children’s Lawyer was concerned about X’s presentation at the time of the family report interviews in early March this year along the lines of the child, X, being anxious. He does have diagnoses of ADHD and, I believe, anxiety. And the family report writer raised the reasonable possibility that the child’s presentation may have been impacted by the mother’s approach to parenting.
The Court gained significant comfort from the recent report of Dr G. Now, this was filed very late and if the trial was to go ahead, I apprehend there was to be an argument as to its admissibility, but Mr Carlton sensibly withdrew any objection to the report on the basis that a consent position has been reached and the benefit is obvious. Dr G is a psychologist and I do note he was referred to as Dr G, but I can’t really see precisely whether he has that actual qualification. In any event, he is a psychologist, and he has been treating young X and happily, I note, that X’s presentations as referred to by Dr G have reduced since attending therapy. That is to say, X reported periodically struggling with feelings of shame, embarrassment, fear, sadness and disappointment, although these presentations have reported to reduce since attending therapy.
That’s good news, and Dr G made the point there has been an observable positive impact on X – his self-esteem, his confidence and his anxious presentation – and this coincided with a number of things including the boy being made the captain of his sports team, but also it seems that the boy has learnt to engage with Dr G. Dr G has noted that the mother and X reported positive progress and an overall reduction in symptomology. This is extremely good news for the child and for the parents. It gives the Court significant comfort when having regard to the various matters in section 60CC of the Family Law Act 1975 (Cth) (“The Act”). Because the parents are consenting to the orders (apart from paragraph 27), it seems to me that it is appropriate and correct for the Court to approach the matter in a circumscribed manner. I note section 60CC(5) of the Act. I note the Independent Children’s Lawyer is not consenting.
It seems to me obvious that the Court is not required to give as detailed a consideration and nor is the Court required to give a detailed examination or conduct a detailed examination of all of the various subsections in section 60CC of the Act in circumstances where, notwithstanding the very high level of conflict that has persisted over a long period of time between these parents, these parents have now very much to their credit reached a consent position which is well within the bounds contemplated by the family report writer, Ms H. The parental conflict has been a major problem. The children have been, of course, caught in the middle of it. By signing off on these orders now, first of all, it brings the litigation to an end, which will mean the removal, it seems to me, of a significant stressor for the parents which will undoubtedly have a very positive impact upon their family and their two separate families constituted by themselves, their new partners and the children. When the Court notes section 60CC(2)(b) of the Act – the need to protect children from various forms of harm – finalisation of family law litigation, it seems to me, and the reduction in stress for the parents that will occur as a result of that is, it seems to me, pertinent to 60CC(2)(b) of the Act. Another very important aspect of this section is the fact that these new orders will see all changeovers – practically all of them – certainly during school term – take place at school. This is a very important factor in the Court deciding to make the orders that have been agreed between these parents.
Another very important factor in the Court agreeing to make these orders is the fact that it avoids the making of findings. I know that Dr Sayers, to some extent, on behalf of the Independent Children’s Lawyer, lamented the fact that there will be no findings which would, of course, have brought clarity to the situation in light of some of the matters raised by Ms H, but the fact is that the making of findings themselves very often leads to significant blowback and leads to significant issues for the parents. Quite detailed and severe allegations have been made in this case by the mother against the father and by the father against the mother. If the matter had gone to a trial, to a hearing, I would have been required to make findings which would have been there in black and white for all to see and for posterity. If such a situation can be avoided, it is highly desirable that it is avoided.
The children have been living with the mother primarily for some time. There will be continuity. There will also, on the other hand, be an increase in their time with the father. From what I have read in the material and from what I have heard and what I have seen in these orders – these are desirable outcomes for the children.
I should add that there was a reference by Dr Sayers to the multiplicity of diagnostic issues that are being pursued by the mother concerning the child, X, and the submission was – and it does not seem to be opposed by any of the others – that in the vast majority of cases – that is to say, issues that the mother looked into in relation to the child – the mother’s initial concerns were proved to be correct. I am not going to detail the various medical issues or matters that the mother wanted investigated and did investigate. The concern did appear to be what impact the way it was done may have had upon the boy, X, but at the end of the day, it would seem to me that a primary obligation of a parent, if the possibility of a medical concern arises, is to consider it, to investigate it and to find a solution.
The avoidance of the necessity for making findings and the very fact that the parents have been able to reach a consent position is a significant, as I say, factor in the Court agreeing to make the orders that have been sought. I said earlier it was well within the range of possibilities considered by Ms H. I am aware of the views expressed by other Judges in relation to what approach should be taken. I am aware of cases such as Thistle & Thistle (No.2) (“Thistle”), which appears to be reasonably consistent with the case relied upon or referred to by Dr Sayers, it having been decided by the same Judge, the now retired Kent J. I also note what was said in Benson & Jeffreys by McMillan J [2019] FamCA 793. The citation for Thistle is [2014] FamCA 67. I note Campbell & Bouchard is [2014] FCCA 2293. McMillan J in Benson & Jeffreys [2019] FamCA 793 also made a helpful mention of a decision of Bennett and Bennett (1991) FLC 92-191. The Court is in a better position than some of those judges were because the Court did receive cogent, sensible, and helpful submissions on behalf of the Independent Children’s Lawyer to explain the position of the Independent Children’s Lawyer and I am grateful to the Independent Children’s Lawyer and Dr Sayers in that respect. The view that I have formed, having regard to the evidence that I have read, having regard to the submissions that have been made, having regard to the extent of the conflict and the length of time it has been around, the view that I have formed is that the proposed orders that the parents have agreed are in the best interests of the children.
Dr Sayers is correct when he pointed out, and I referred to this earlier, that the parents are in a better position than anyone to reach a conclusion to orders in the best interests of their children. No one knows their children better than the parents. I’ve had regard to the submissions that were made concerning parental responsibility, that is by Dr Sayers. I am not concerned with the order as proposed. It will still require a consultation between the mother and the father. Because of the past conflict between the parents, it does seem to me to be sensible that it is the mother who will have sole parental responsibility.
And it is an important fact to note, as I did earlier, in relation to this issue, that many of the concerns raised by the mother from a medical perspective relating to X proved to be correct. It is the case that in the future the parents here may benefit from adopting strategies to help them amend their conduct or behaviour to the extent that they need to. I have taken into account the various matters in part 7 of the Act: section 60CC of the Act, and so on, section 65DAA of the Act and the other relevant sections.
These parents think that they can make it work, and I have no doubt, noting their intellectual abilities, that when they turn their minds to it they will be able to make it work. The school changeovers during term will be very beneficial in ensuring the smooth operation of these orders. I am, of course, aware that 65DAA of the Act only becomes operative in certain circumstances, but there are some aspects in relation to those provisions. Those sections refer to the type of things that the Court will take into account anyway in making an order which is providing for substantial and significant time. The view that I have formed is that the orders agreed between the parents are in the best interests of these children.
It seems to me on balance that the case is somewhat less difficult than the case of Thistle or the case of Parch & Rile [2015] FamCA 128 referred to by Dr Sayers, those cases both involving allegations of sexual abuse which were not tested at trial. The parents nonetheless reached a consent position and the Court eventually agreed to make the orders.
I have regard to the proposals. Mr Carlton on behalf of the father, has agreed with the Independent Children’s Lawyer’s proposal paragraph 27(a) and (b). I will read the proposed into the record:
a.That neither parent shall enrol a child in extracurricular or co-curricular activities which are to occur while that child is in the other parent’s care, without that other parent’s consent, and
b.The parties shall facilitate the attendance of a child at such agreed extracurricular activities or co-curricular activities as may be required by the terms of any operative bursary or scholarship.
The mother’s proposal was read out by Ms Gover, Counsel:
That the mother and the father must facilitate the children’s attendance at extracurricular and co-curricular activities required under the conditions of any school bursary or scholarship.
I put in the words “or scholarship.”
28, or the next paragraph, would read that:
Either parent may enrol the children in additional extracurricular or co-curricular activities not required by any school bursary, without agreement. However, in relation to such activities, the other parent is not obliged to facilitate attendance.
Now, in relation to the proposed second order from the mother, I accept the submission made by Mr Carlton of Counsel that such an order does have the potential to give rise to a difficult situation for the so-called “other parent.” There is evidence that in the past there has been some conflict between the parents in relation to the issue of extracurricular activities being organised in the other parent’s time. The problem with this second order sought by the mother is, as said by Mr Carlton, it could lead to a situation where the father is the person who has to, for instance, decline to take the children to an outdoor activity, by way of example, during his time with them – or their time with him. And I can see that this could lead to a situation where the father is placed in an invidious position.
Given that there has been conflict on these issues in the past, I think it is just as well to try as best we can to put in place orders that are the least likely to lead to conflict and the least likely to lead to further litigation. The orders proposed by the Independent Children’s Lawyer in the first part, basically, means that the parents can organise for the children, whatever the parent wants during the time the children are in that parent’s care. But, of course, the first stated parent cannot require the other parent to facilitate the activity during the other parent’s time.
I think that is a reasonable order. I think it is in the best interests of the children. It is about as flexible as you can get and when you look at part b, I think that is important to have it in there. It is important to have the words “at such agreed extracurricular activities as may be required by the terms of any operative bursary or scholarship.” Now, it is difficult in these types of situations to cover the field. It is impossible to imagine what possible scenarios might arise. Proposed paragraph 27(a) and (b) combined, actually, addresses, to a substantial degree, the mischief the mother was trying to address also.
And it, certainly, does also address the mischief that the father was trying to counter. I do not think there is, really, a lot more that can be added by way of reasons here. The proposed 27(a) and (b) take into account the fact that X is in receipt of a bursary, that there are obligations, that there are activities he must attend to, but it also takes into account the fact that this family is now separated. There are two different households and things need to work across two households.
I must say, I have also considered the possibility of not making any order, but given that it has been raised, given that the Independent Children’s Lawyer supports the making of the order in the terms outlined, given that the father supports it, given my view that it addresses, I would say, most if not all of the problems foreseen by the mother, I think it is in their best interests.
Now, paragraph number 3 will probably have to read “Subject to paragraph 27 – in exercising sole parental responsibility”, then a colon, (a), (b), (c) and (d). Now, are the parties all right with that change to 3? Paragraph 3 has to be subject to – we do not want any argument that 3 and 27 are in conflict.
It should be noted that draft Order 27 (referred to in the preceding paragraphs of these Reasons) become Order 28 in the Final Orders made on 5 May 2022.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 4 October 2024
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