DAVID & HAND (No.3)
[2015] FCCA 2058
•4 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAVID & HAND (No.3) | [2015] FCCA 2058 |
| Catchwords: FAMILY LAW – Parenting – dispute about limited issues concerning a child aged 13 – where the parents have been litigating on and off for most of the child’s life – where problems exist because of the father’s difficult personality, lifestyle choices and associated impecuniosity – whether the child should be required to travel from [P] to Wollongong each alternate weekend on public transport to spend time with the father – whether the mother should be required to allow the child to make some or all of this trip alone – whether the order made in 2008 giving the mother sole parental responsibility subject to a condition that she consult with the father before making a decision should be varied. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Hand & David [2006] FamCA 917 Hand & David [2008] FamCA 802 Mazorski & Allbright (2007) 37 Fam LR 518 |
| Applicant: | MS DAVID |
| Respondent: | MR HAND |
| File Number: | SYC 3497 of 2013 |
| Judgment of: | Judge Terry |
| Hearing dates: | 30 January & 25 March 2015 |
| Date of Last Submission: | 2 April 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 4 August 2015 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Solicitor Advocate for the Independent Children’s Lawyer: | Mr Whelan |
| Solicitors for the Independent Children's Lawyer: | Mark Whelan Lawyer |
ORDERS
All existing parenting orders concerning [X] born [in] 2002 are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father:
(a)on the second, fifth and eight weekends of each school term from the conclusion of school on Friday until the commencement of school on Monday or the commencement of school on Tuesday if Monday is a public holiday.
(b)for the purposes of the child spending time with the father during school terms unless the mother has provided the father with express written permission:
(i)the father is restrained from taking the child in excess of 100kms driving distance from [T], NSW;
(ii)the father shall ensure that appropriate overnight accommodation is available for the child such as a house, apartment, hotel, motel, cabin or a caravan park.
(iii)the father shall provide to the mother 7 days before commencement of the time the name, address and contact details of the place where he and [X] will be staying and written confirmation from the service provider that the father has booked and paid for the accommodation.
(c)during the school holiday period at the end of Terms 1 and 3 from the conclusion of school on the last day of term until 5.00 pm on the second Tuesday in the school holiday period.
(d)during the school holiday period at the end of Term 2 from the conclusion of school on the last day of term until 5.00 pm on the second Saturday in the school holiday period.
(e)for the first half of the Christmas school holidays which commence in years ending in an even number (e.g. 2016, 2018) and the second half of the Christmas school holidays which commence in years ending in an odd number (e.g. 2015, 2017).
(f)the “first half” of a Christmas school holiday period means from 9.00am on the first day following the last day of the school term until 4.00pm on the Sunday falling closest to the midpoint of the holiday period and the “second half” of a Christmas school holiday period means from 4.00pm on the Sunday closest to the midpoint of the school holiday period until 4.00pm on the final Saturday of the school holiday period.
(g)notwithstanding any other order the child shall spend the Father’s Day weekend with the father and if Father’s Day falls on a weekend on which the child would not otherwise spend time with the father the child shall spend the Father’s Day weekend with the father in lieu of the 8th weekend of that school term.
(h)at such additional or alternate times as may be agreed between the parties in writing.
Changeovers shall take place:
a)during school terms by the father collecting the child from school on Friday and delivering him to school on Monday or on Tuesday as the case may be.
b)at the commencement and conclusion of school holidays at [B] Children's Contact Centre if this service is available and if it is not at [omitted] Police Station.
In the event that Mother’s Day falls on a weekend that the child is due to spend time with the father the father’s time with the child is suspended on that weekend and the child shall spend that weekend with the mother and the following weekend with the father.
Each party is restrained from:
(a)physically chastising the child.
(b)interrogating the child about time spent with the other party.
(c)denigrating the other party and/or the other party’s family or members of their household to or in the presence or hearing of the child.
Each party shall take all reasonable steps to ensure that the other party is notified as soon as possible of any medical or other emergency concerning the child.
Each party shall provide all necessary authorities to allow the other party to obtain information from the child’s medical practitioners, therapeutic practitioners or school.
Each party shall keep the other informed of their residential address, landline telephone number, email address and mobile telephone number and shall advise each other of these details if they have not already done this within seven (7) days of the making of these orders.
Each party shall ensure that the child attends any scheduled extra-curricular activities that have been previously agreed to between the parties in writing when such activities occur during the time that the child is with either party in the [P] area.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym David & Hand (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
SYC 3497 of 2013
| MS DAVID |
Applicant
And
| MR HAND |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms David and Mr Hand have been involved in court proceedings about their son [X] on and off since [X] was less than a year old.
The heart of the problem is that the father is an extremely difficult man. He can be aggressive, he breaches court orders when it suits him and he is determined not to bend to anyone else’s ideas of what is safe and appropriate for his son.
The evidence is replete with examples of this kind of behaviour and it is not a recent problem. In a decision handed down in 2006 Justice Benjamin said as follows:
One of the issues which came before me was the question of [X]’s involvement with the husband’s interest in boating. Whilst this normally would not have been problem, the evidence of the husband is concerning in two levels. Firstly there was an undertaking that he gave to the court that he would not take [X] on a boat, but on his own admission, when [X] wanted to come onto the boat, in the face of the undertaking the husband breached it. That is hardly responsible behaviour for the father in terms of care of [X]. Whether he agreed or did not agree with the undertaking he had given it and should have abided by it.
Secondly the father was asked by the child representative whether he would limit [X]’s involvement to traveling on the boat within calm waters such as the harbour. The father would not agree to this and made it clear that if he wanted to take [X] out of the Sydney Heads on a yacht he would do so. The effect of this would be quite devastating on the mother bearing in mind the limited information and material I have of her before me. This would have the consequences of further enhancing the conflict that already exists between the parties.
The current round of proceedings began in August 2013 after the father withheld [X] for 17 days to try to force the mother to agree to changing court orders. [X] was returned to the mother’s care after she applied for a recovery order. His time with the father was suspended for two months following this but was gradually restored and by January 2015 the issues which remained in dispute were:
i)The allocation of parental responsibility – the mother has sole parental responsibility subject to a condition pursuant to an order made in 2008. She sought an order for sole parental responsibility without any conditions. The father proposed an order for equal shared parental responsibility.
ii)Time during school terms – the mother proposed that [X] spend time with the father on the 2nd 5th and 8th weekend of each school term from Friday to Monday in the [P] area with the father to collect [X] from and return him to school. The father proposed that [X] spend time with him each alternate weekend from Friday to Sunday in Wollongong with [X] to travel by train between the two locations.
iii)Whether [X] should travel unaccompanied by train – the father sought an order that [X] be permitted to travel unaccompanied by train from Newcastle to Central, and when the father deemed it appropriate from Newcastle to [C] changing at Central. The mother opposed [X] travelling alone by train until he was 16.
iv)Christmas school holiday arrangements – the mother proposed that [X] spend two weeks of these holidays with the father. The father sought alternately half/second half of the holidays.
The Independent Children’s Lawyer proposed that:
i)the mother have sole parental responsibility subject to conditions;
ii)[X] spend three weekends each term with the father in Wollongong and two in the [P] area;
iii)[X] be permitted to travel alone by train when he was 14;
iv)the Christmas school holidays be divided equally.
Background
The mother and father had a brief relationship and an even briefer period of cohabitation which ended in 2001.[1] They have one child, [X], born on [omitted] 2002. [X] has always lived with his mother.
[1] Hand & David [2006]FamCA917
The first application concerning [X] was filed in May 2003 when he was about 10 months old.
In March 2006 Justice Benjamin conducted a hearing and made final orders about [X]’s surname, residence, contact and parental responsibility.[2] He dismissed a number of contravention applications and a contempt application.
[2] Hand & David & H [2006]Fam CA934
Within months the matter was back before the court because the mother unilaterally relocated with the child to Queensland.
In a procedural decision handed down on 31 August 2006 Loughnan JR said as follows about the parties positions, and it remains true today:
Each of the parties has a very jaundiced view of the other. This was referred to by Justice Benjamin, and it is a feature of the documents before me. I think the mother would have it that the father is inconsistent, controlling, manipulative and irresponsible in that he doesn't provide adequately either for the financial support of his son and is inconsistent in terms of changing arrangements, bringing the child late and being thoroughly uncooperative and irresponsible in relation to the boating issue. The father would have it that the mother has set about a course of defeating his relationship with the boy.
On 15 September 2008 the matter was listed for another trial this time before Justice Rose. The mother was by then living in [T] and the father in Wollongong which remains the case today.
Justice Rose made orders by consent about some matters, including it would appear the frequency and location of the father’s time with [X]. The orders he made provided for [X] to spend time with the father:
(i)on the 2nd and 6th weekend of each school term from Friday to Sunday with changeover at [omitted] Police Station with such time to take place within 100 kilometres of [L].
(ii)on the 4th and 8th weekend of each school term with changeovers at [omitted] Police Station.
(iii)for 10 days in the Terms 1 & 3 school holidays, and 7 days in the Term 2 school holidays.
(iv)for 14 days in the Christmas school holidays in 2009 and each alternate year thereafter and three weeks in the Christmas school holidays in 2010 and each alternate year thereafter.
Justice Rose was required to determine some specific issues including the allocation of parental responsibility.[3] The father sought equal shared parental responsibility but for reasons given in the judgment Justice Rose made an order that the mother have sole parental responsibility provided that she consulted the father before making a decision.
[3] Hand & David [2008] FamCA 802
In the first twelve months after these orders were made there were further problems.
The father withheld [X] after the end of his allocated time in the 2008/9 Christmas School holidays and on 21 January 2009 the mother applied for a recovery order. The father returned [X] 3 days later.
On 29 September 2009 the mother raised a concern that the father had not provided her with a residential address and that she had no idea where he exercised his time pursuant to the September 2008 orders and as a result the orders for weekend time outside the [L] area and for school holiday time were suspended.
The mother alleged that in October 2009 the father took [X] from her car outside her home and phoned her saying “I have [X] and I’m keeping him.” She was a generally credible witness and I have no reason to suppose that she made this up but there was insufficient evidence and cross-examination for me to determine exactly what occurred on this occasion and why.
The parties then achieved some sort of rapprochement because between October 2009 and October 2012 the father stayed at the mother’s home on one or two weekends per school term in order to spend time with [X] and there was little conflict.
In October 2012 trouble began resurfacing when the mother complained that the father was camping at a public beach with [X] and sometimes left him unattended. The father did not accept that he had done anything wrong.
At Christmas 2012 the mother sent [X] to spend time with the paternal grandparents. However a short time into the visit the paternal grandfather rang the mother saying that the father had tried to take [X] away and had shoved the paternal grandmother during the dispute. The mother called the police who attended at the paternal grandparents’ home.
The mother alleged that on 24 April 2013 the father tried to abduct [X] from her home by forcing him into a car.
On 26 July 2013 when [X] was with the father in accordance with the orders the father sent the mother an email saying:
Hi [Ms David] have sent you an email regarding contact. [X] will be staying in my care until the matter is resolved.
On 28 July 2013 the father sent the mother an email saying among other things:
[X] will be residing with me until we finalise regular contact with [X] and myself
On 29 July 2013 the mother filed an application for a recovery order. She also sought an order that all of the 2008 orders concerning the father spending time with [X] be discharged and that the father be restrained from contacting the mother or [X].
When the matter came before me on 13 August 2013 the father admitted that he had withheld [X] to try to force the mother to agree to change the existing orders.
The father was ordered to return [X] failing which a recovery order would issue. The orders concerning [X] spending time with him were suspended and an Independent Children’s Lawyer appointed.
The father filed a contravention application on 13 August 2013 and on 12 September 2013 he filed a second contravention application but these were ultimately dismissed.
Mr Whelan who has had a long involvement with the matter was appointed Independent Children’s Lawyer and on 15 October 2013 after his appointment an order was made that [X] commence spending time with the father every second Saturday from 10.00am to 5.00pm with such time to be spent in the [P] area and with changeover to take place at [omitted] police station.
[X] spent time with the father on 26 October 2013 and regularly thereafter but there was conflict at a number of changeovers.
On 29 November 2013 the father announced that he intended moving to [address omitted] which is about 300 metres from [X]’s school and 900 metres from the mother’s home.
On 10 December 2013 fresh orders were made discharging the existing spend time with orders and providing for [X] to spend time with the father from 21 December 2013 to 4 January 2014 and on the weekend of 11/12 January from 9.30am on Saturday until 4.45pm on Sunday and each alternate week thereafter and otherwise as agreed between the mother, father and Independent Children’s Lawyer. Changeover was to take place at [B] Children's Contact Centre.
An order was made restraining the parties from discussing the court proceedings with [X] or showing him court documents.
The parties could not reach agreement about long term orders and a Family Report was ordered. It was prepared by Mr P, a Regulation 7 Family Consultant and was released on 7 June 2014. Mr P said that [X] was keen to continue seeing his father and he recommended that alternate weekend time continue, even though it was apparent that the father had begun taking [X] to Wollongong on weekends.
The mother filed an application in a case on 7 June 2014 seeking orders that the father spend time with [X] in the [P] area. She submitted that the orders for alternate weekend time had been made only because the father was living in [P] and that as he had relocated the orders should be changed. She said that the father had failed to return [X] to her on a number of occasions since December 2013 and she had been forced to drive a considerable distance to get him back.
However as a result of the recommendations in the Family Report the Independent Children’s Lawyer did not support the mother’s proposal and an interim order was made that [X] spent time with the father each alternate weekend from 4.30pm Friday to 4.30pm Sunday with changeover at [B] Children's Contact Centre. Implicit in this was that the time would be spent in Wollongong.
In September 2014 the parties attended a legal aid intervention conference and on 12 September 2014 final orders were made by consent which provided for [X] to live with the mother and spend time with the father for ten days in the Term 1 and 3 school holidays and 7 days in the Term 2 school holidays.
The parties were unable to agree about the matters referred to in the introduction to the judgment and the matter was listed for hearing on 30 January 2015 in respect of those matters.
The hearing
The mother filed a Minute of Orders Sought and an affidavit for the hearing in accordance with the trial directions.
The father did not file documents in compliance with the trial directions but he brought an affidavit to court on 30 January 2015 and was permitted to rely on it.
The Family Report prepared by Mr P was in evidence at the hearing.
On 30 January 2015 the parties and Mr P were cross-examined but there was insufficient time to conclude the matter and it was adjourned to a date to be advised for submissions.
The court endeavoured to accommodate the parties in terms of fixing a date for submissions. The original date proposed was not suitable to the father and after numerous unsuccessful attempts by my Associate to contact the father about an alternative date the matter was listed at 4.00pm on 25 March 2015 for submissions. All parties were given liberty to attend by telephone.
The father was informed about the date in an email sent to him at [omitted]@hotmail.com on 18 March 2015, which is the email address on the affidavit he filed on 30 January 2015.
On 25 March 2015 the mother attended court in person and the Independent Children’s Lawyer attended by telephone. The father did not attend and did not dial in to the Genysis telephone link. The Independent Children’s Lawyer confirmed that the email address which the court had used to notify the father was the email address he used to contact the father.
I considered it appropriate to proceed with submissions in the father’s absence and I heard submissions from the mother and the Independent Children’s Lawyer. The Independent Children’s Lawyer very fairly referred during his submissions to some points the father would likely have taken in relation to the issues in dispute and the father’s position on the issues in dispute was in any event made clear enough at the hearing.
The Independent Children’s Lawyer submitted that changeovers should continue should continue to occur at the [B] Children's Contact Centre to avoid [X] being exposed to conflict between the parties and he proposed that prior to a decision being made he obtain and forward to the court information about the opening hours of the [B] Children's Contact Centre.
An order was made for the Independent Children’s Lawyer to do this and on 2 April 2014 he sent an email to the court from the contact centre which he copied to the parties and which said as follows:
i.Mr Hand presents challenges in terms of not complying with the rules and difficult interaction with staff etc; however this is not at a stage where the Centre would refuse him the service
ii.Due to budget cuts the Centre is not open on Sundays at all now; they can offer Friday afternoons up until 4.45pm or Saturdays up until 4.45pm;
iii.The Centre is not sure but believes the parents may be using a police station to change back on Sundays.
The submissions about the issues in dispute
Parental responsibility
The existing order about parental responsibility was made by Justice Rose on 15 September 2008 and provides as follows:
That the mother have sole parental responsibility for the child [X] born [omitted] 2002 PROVIDED THAT the mother ensure the father is consulted in relation to any long-term issues that may affect the child AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND THE consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
The mother sought an order for sole parental responsibility with no conditions. It was her case that she and the father were utterly unable to communicate effectively or reach agreement. She said that if an order for equal shared parental responsibility or even an order similar to the 2008 order was made she would be forced to attempt to reach agreement with a man who did not respect her or her opinions and who had a history of acting peremptorily and unilaterally to try to force her to agree to do things his way.
The mother was also concerned that she might be required to deal with the father’s anger if he was displeased or upset. She said that there were many instances in the evidence, for example what happened with his parents at Christmas 2009 and what happened in the street in October 2013 which suggested that this might be the case.
The mother’s case was that she had never abused the 2008 order insofar as it gave her a final say about major long term issues. She had not attempted to use it to justify relocation or to change [X]’s name. She has made appropriate decisions for [X] about school and extra-curricular activities and this was evidenced by the fact that [X] was doing well.
The father did not make final submissions but his case would be that he is [X]’s father and has been and will continue to be an important part of his life. He brings something different to [X]’s life and [X] would benefit from the input of people with different perspectives before decisions were made about major long terms issues which affected him.
The Independent Children’s Lawyer proposed that the mother have sole parental responsibility subject to notifying the father in writing in advance before making a decision and subject to giving him 6 weeks written notice of any intention to relocate her place of residence from the [P]/Newcastle region or changing [X]’s school and that she not change his school before considering any written response to the proposal from the father provided that he gave one within 14 days of receiving the notice.
The Independent Children’s Lawyer conceded that there was no evidence that the mother had evinced any intention since the 2008 orders were made to change [X]’s name or relocate.
Weekends during school terms
The mother sought an order that [X] spend three weekends of each school term with the father and that the time be spent in the [P] area.
She said that historically the father had largely spent time with [X] in the [P] area. In December 2013 he had achieved an order about spending alternate weekend time with [X] without any restrictions by saying that he was living in [T] but if he ever did commence living there (which the mother doubted), once he gained the unrestricted order for alternate weekend time he began taking [X] to Wollongong on those weekends.
Initially this was by car but the father now did not have a car and all travel was by train.
The mother said that travel by train between [P] and Wollongong each alternate weekend was simply too onerous for [X]. It involved 6 hours travel on Friday evening and 6 hours travel on Sunday in order for him to spend 1 day and a few hours with the father.
The mother submitted that [X] had now commenced high school and had friends and interests in the area where he lived. His legitimate interests were in being able to relax on the weekends and spend time in the area where he lived after a grueling school week rather than travelling extensively every second weekend.
The mother felt that her concession about the school holiday time should be taken into account. She had offered extra time in the Term 1 and 3 school holidays to ensure that if [X] spent less time with the father in school terms he spent more time with him during the school holidays and the effect of it was [X] spending 12 days of Term 1 and 3 school holidays with the father and 5 with her, in other words [X] was spending a limited time in his “home” area during the holidays.
The mother said that another advantage of her proposal was that there would be no need for her and the father to come face to face at changeovers during school terms. She said that the father did not behave well at changeovers and while changeovers at [R] had resolved this to an extent [R] might not be able to continue to facilitate changeovers.
The father sought a continuation of [X] spending each alternate weekend with him in Wollongong. It was clear from his evidence at the hearing that he did not accept that the travel to Wollongong was onerous for [X]. He said that he and [X] interacted during the travel and that [X] wanted to spend the time with him in Wollongong.
The father said that he did not have a car and was in straitened financial circumstances and it was impossible for him to travel up to Newcastle each weekend, get to [P], pay for accommodation and get [X] around in the [P] area so that they could do things together. He said that he would not come to [P] to spend time with [X] there.
The Independent Children’s Lawyer proposed that [X] spend 3 weekends each school term with the father in Wollongong and two weekends within 100 kilometers of the mother’s home in [P] area. He proposed that on those two weekends the father collect [X] from school on Friday and return him to school on Monday.
The Independent Children’s Lawyer submitted that changeovers which did not take place at school should take place at [R]. He referred to the evidence about the father being aggressive at changeovers and to how important it was that [X] was not exposed to conflict at changeovers.
Unfortunately it is clear from the information provided by [R] that they are no longer available to do changeovers on Sunday.
Travel by train
The mother proposed that [X] not travel alone by train from [B] to Central until he was 16.
No evidence was given about any particular difficulties on the Newcastle/Central/[C] run but the mother was clearly concerned about [X]’s vulnerability as a 12 or 13 year old.
The father proposed that [X] commence travelling alone by train from [B] to Central immediately. It was his case that [X] would cope well as he was familiar with the trip having done it many times with the father and was a mature sensible 12 year old. The father said in oral evidence that he would continue to meet [X] at Central and travel with him to [C] until he felt that [X] was ready to do this part of the trip on his own.
The Independent Children’s Lawyer proposed that [X] travel unaccompanied by train when he was 14.
Time during the Christmas school holidays
The mother proposed that [X] spend the first 10 days or the last 10 days of the holidays with the father. She was particularly keen to ensure that any orders which were made were very clear and incapable of misinterpretation. She did not make any submission about why 10 days rather than half-half should be preferred.
The father sought year about first half and second half of the 2014 holidays.
The Independent Children’s Lawyer supported an alternate first half/second half arrangement.
Other orders sought
Both the mother and the Independent Children’s Lawyer proposed an order that on [P] weekends the father have appropriate overnight accommodation for [X] at a house, apartment, hotel, motel, cabin or caravan park and that he provide to the mother 7 days before commencement of the time the name address and contact details of the place where he and [X] would be staying and written confirmation from the service provider that the father had booked and paid for the accommodation.
A similar order was made by Justice Rose in 2008, and in the mother’s mind it was no doubt made essential by her beliefs about the father having inappropriately housed [X] in a tent or a treehouse in the past.
The mother sought an order that if the father failed to return [X] at the end of a visit then the next visit due after that should not occur.
The Rule in Rice & Asplund
Comprehensive final orders were made in 2008 after a hearing. The parties have agreed to some variations by way of interim orders since the current proceedings commenced but I am still required pursuant to the Rule in Rice & Asplund to bear the 2008 orders and the reasons they were made in mind and to consider whether the evidence before me justifies a variation of those orders. [4]
[4] Rice & Asplund (1979) FLC 90-725
Parental responsibility and time in Wollongong were both dealt with in the 2008 in a particular way and I will refer to the 2008 orders later when considering the appropriate orders about those issues.
[X]’s best interests
Any orders about a child, even when the dispute is limited, must be determined by treating the child’s best interests as the paramount consideration.
S.60CC (2) & (3) of the Family Law Act contains the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations are in s.60CC (2) are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S.60CC (2A) provides that in applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).
[X] has a meaningful relationship with his father at present in other words a relationship which is significant important and valuable to him.[5] He will not lose that if he sees the father less frequently during school terms than he is at present or even not at all during school terms or if he travels to Wollongong less frequently than he is doing at present.
[5] Mazorski & Allbright (2007) 37 Fam LR 518.
The father has made the mother’s life very difficult by his behaviour toward her and his determination to spend time with [X] on his terms and his terms only which has resulted in him unilaterally withholding [X], being threatening to the mother and forcing her involvement in what must seem endless court proceedings.
Some people in the mother’s situation would by now be seeking a “no-time” order but the mother is not, although that was her immediate response to the father’s behaviour in August 2013. She recognises that [X] has a bond with his father and is keen for [X]’s sake for the bond to be preserved. The fact that [X] spends more time with the mother and less with the father is therefore not likely to undermine [X]’s relationship with the father.
This primary consideration does not assist me.
The father has been guilty of some family violence toward the mother but there have been no incidents since changeover commenced to take place at [B] Children's Contact Centre.
The issue of family violence is relevant to the matter of parental responsibility and to the issue of where changeovers should occur but it does not otherwise assist me to resolve the dispute between the parties about the limited issues.
The first of the additional considerations in s.60CC(3) is any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
The father gave evidence about what he said were [X]’s views. He maintained that [X] wanted to spend alternate weekends with him in Wollongong and wanted to travel alone by train from [B] to Central and he submitted that those views should be respected.
The father produced letters written by [X] early in the life of these proceedings setting out what [X] allegedly wanted in regard to his time with his father.
I cannot place weight on the evidence the father gave about [X]’s views or on the information contained in the letters. I cannot be satisfied that [X] has not been overborne by the father or given in to the father to keep the peace.
The father does not respect the opinions of others. He is always right. If people in authority such as courts or employees of contact centres or managers of a workplace refuse to see this he reacts angrily and sometimes takes the law into his own hands.
The father behaves in a disrespectful and overbearing way to the mother when it suits him and [X] has witnessed the father behaving aggressively to the mother. The father has ridden roughshod over [X]’s needs in order to try and achieve his own goals, a prime example of this being his retention of [X] in July 2013 which resulted in [X] missing school.
The father’s overbearing behaviour when confronted with opinions different to his own has been evident on many occasions over the years. The information provided by the Contact Centre to the Independent Children’s Lawyer in April 2015 confirms that it continues and two other examples were provided by the Independent Children’s Lawyer at the hearing in January 2015.
The Independent Children’s Lawyer tendered the following entry dated 12 November 2014 from COPS records produced on subpoena by NSW Police:
The PN [Person Named, the father] was hired as a handyman for [workplace omitted] which is located in [omitted] in August last year. During the time that the PN was working within the [workplace] there have been a number of disagreements between him and the victim. Most of these issues are from the PN not obeying orders from the victim. An example of this occurred on 16 /8/2014 when the PN was operating on a heavy machinery which he was not supposed to because he wasn’t inducted properly. He just ignored her directions and an argument ensued. Another example was on the 26/9/14 when the PN brought his son to work and allowed him to operate the heavy machinery there, which is a clear violation of the workplace. The victim noticed that during the time the PN was working there his attitude had changed and he was becoming increasingly aggressive toward her and her fellow staff members when things went pear shape. Therefore he was fired on the 1/10/14. The victim wants a record to be made just in case she encounters the PN in future through her line of work.
The Independent Children’s Lawyer also tendered a letter dated 7 August 2014 which the Coordinator of [R] Children’s Contact Service to the father and which included the following:
The other issue is that the Service Agreement was broken last visit in that you talked in an angry manner about the other Parent in front of [X]. We believe that this is harmful to [X] and would need reassurances from you that this will not happen in the future.
The father did not agree at the hearing that he was at fault in regard to the dispute at the [workplace omitted] or that he had behaved in the way described by the co-ordinator of the Contact Centre. However it is simply not believable that the mother, the person at the [workplace omitted] and the Coordinator of the Contact Centre all got it wrong and are maligning a co-operative quietly spoken individual.
It would be difficult for [X] to express his true views to a person like the father and I cannot place weight on the father’s evidence about [X]’s views.
There is some evidence of [X]’s views in the Family Report. Mr P said as follows:
[X] stated definitively that he didn’t wish to cease his time with his father, and in an unsolicited statement to the Family Consultant he said that he would like to have every fortnight weekend commencing on a Friday afternoon and concluding on a Sunday afternoon as well as half of each school holiday period with his father.[6]
[6] Family Report paragraph 54
The father said that considerable weight should be given to those views because [X] was a mature 12 year old whose debating and academic skills suggested that he was well able to apply reason and reach a considered decision which should then be respected. Mr P also felt that [X]’s views as expressed to him were genuine and should be given weight but I am troubled about whether I can be confident that the views [X] expressed to Mr P were his own true heartfelt wishes or arose from a desire to please his father or keep the peace.
There is considerable force in the following insightful comment in the mother’s affidavit:
I believe it is vital to balance [X]’s expressed views with his obvious vulnerability in this family dynamic.[7]
[7] Mother’s affidavit filed 9 January 2015 paragraph 50
[X] has uncomplainingly spent time with the father to this point in his life. The mother did not suggest that she had any difficulty persuading him to go on visits with the father in a broad general sense and I accept that [X]’s current wish is to spend time with his father. However I cannot place weight on the evidence of the father or the evidence in the family report about [X]’s wishes concerning alternate weekends.
The Family Report was 6 months old by the time the hearing occurred. [X] had just started high school and both the mother and the Independent Children’s Lawyer said that [X] had requested that there be some flexibility in the time he spent with his father so that he could attend extra-curricular, sporting or social events in the area where he lived.
It is credible that [X] might want flexibility but while a flexible arrangement would be ideal it would be impossible with these parents.
The father said that he was flexible already in that if [X] expressed a wish to do something like a scout camp he accommodated him but he then added that he went to the scout camp with [X]. It is open to question whether [X]’s views would prevail with the father if the father wished to do something else on a particular weekend, and while I have considerable faith in the mother’s willingness to promote a relationship between [X] and the father it is open to question whether she would allow [X] to go to Wollongong if he said he wanted to if she feared that it might result in the father not returning [X] and her being required to do a lengthy drive to collect him.
I must consider the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).
[X] has a close relationship with his mother who has always been his primary carer. Mr P’s observations bear that out and the father did not question it.
The father said that [X] also had a close relationship with him. He said that they shared an interest in parkour which as best I can describe it is an urban activity which involves getting from Point A to Point B in the quickest possible time while surmounting obstacles by going around, across, through, over or under them.
The father said that [X] enjoyed boating and sailing with him and learning fabrication, building and sculpting from him. He said that he involved [X] in dance, arts and music and took him camping. He said that he was encouraging an interest in Buddhism in [X].
The Independent Children’s Lawyer submitted that:
Notwithstanding the father’s challenging personality he brings something to [X]’s life that [X] doesn’t otherwise have
There is force in that submission. My concern however is that there was little evidence (except perhaps in the matter of parkour) of the father showing any interest in finding out about [X] as a person as opposed to the father taking it as a given that [X] is enthusiastic about the father’s interests. If this is in fact the case it may not bode well for the future but there was no sign that it was a problem at present.
I must consider the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child and to communicate with the child.
Each parent have always wished to be involved with [X] and to be part of any decision making about him and this consideration does not assist me.
1 must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
The mother earns a living as a remedial massage therapist and Pilates instructor. She financially supports [X] save for the limited extent to which the father provides for him when he is spending time with the father.
The father is assessed to pay $15.50 per fortnight child support which is consistent with the receipt of Centrelink benefits. The mother believes that he earns money from a vending machine business and from doing odd jobs for cash. She said that the fact that father had access to additional cash when he wanted it was evidenced by the fact that he supposedly rented a second property for three months between December 2013 and March 2014 and owned a 20 metre yacht which is moored in Sydney Harbour.
It would unsafe for me on the state of the evidence to find that the father has consistent or substantial sources of income available to him in addition to his Centrelink benefits, but that is not to say that the father could not earn income if he chose. In his 2008 decision Justice Rose said as follows:
I should emphasise at this point that in terms of the restricted income that the father claims to have, that is due to him following on a full-time basis his chosen occupation in the arts. The father does not have supplementary employment to augment what, on the face of it, is a low income. That is a choice that the father has made. It has not been submitted to me that the father has endeavoured to obtain other employment to supplement the income he otherwise earns in his artistic endeavours, or that he is handicapped from obtaining such employment for one reason or another. At times it is simply a question of priorities, and in my view it is in the best interests of the child to maximise the opportunities for the child to be adequately financially supported which, to an overwhelming degree, has been carried out by the mother.[8]
[8] Hand & David [2008] FamCA 802
Nothing has changed since 2008 and during cross-examination Mr P also pointed out to the father that he was 46 and had a choice about earning an income.
I must consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
Mr P expressed the opinion that if [X] was not permitted to spend time with the father on alternate weekends he might “vote with his feet.”
I do not consider it likely that if [X]’s time with the father during school terms takes place less frequently than once per fortnight in Wollongong or even not at all in Wollongong that he is likely to do anything precipitate. He has a good relationship with his mother, he is settled with her in [T] and he is doing very well at school and is popular with his peers. There was nothing to suggest that he found the idea of a complete change of residence attractive.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
This is a significant issue in the case.
[X] lives in [T] and attends [T] High School in [S]. The father lives in Wollongong. The two locations are about 3 ½ hours apart by car but the father no longer has a car. The present arrangement for the alternate weekends in Wollongong requires the following:
a)The mother either collects [X] from school on Friday and then drives him to [B] Contact Centre or [X] gets the bus home taking an hour and is then driven by the mother to the Contact Centre which takes an hour.
b)The father collects [X] from the Contact Centre at [B] at 4.30pm.
c)The father and [X] catch a train from [B] to Central, arriving at about 7.30pm.
d)The father and [X] catch a train to [C] arriving at either 9.00pm or 10.00pm depending on connections.
e)For the return journey the father and [X] leave Wollongong at 10.00am on Sunday and the mother collects [X] from [B] Contact Centre at 4.45pm and drives him home to [T].
The mother said that the travel was particularly hard on [X] in 2015 as he no longer went to a primary school near her home but had to catch a bus at 7.20am to start school at 8.10am.
It is also an impost on the mother who cannot work on alternate Friday afternoons and the mother said that to compound the problem on four occasions since December 2013 she had been forced to drive a considerable distance to retrieve [X] because the father refused to return him.
On 7 December 2013 the father collected [X] from [omitted] Police Station and then said that he could not bring him back because he could not afford petrol.
On 25 January 2014 the father said that he could not return [X] as he had car trouble.
On 13 May 2014 the father said that he could not return [X] as his car was bogged in the driveway. The mother had to do an 8 hour return trip to Wollongong with her step-father to collect [X].
The last occasion was on 9 June 2014 when the mother received a message from the contact centre after the father had collected [X] to say that the father would not be returning him to the centre on Sunday. The father variously said that he had a flat tyre, no money for petrol and no money for train fares. After numerous text messages the mother was able to collect [X] from [omitted] Police Station on Monday.
The mother said that because of the father’s aggression she always tried to take someone with her if she had to meet him for a changeover which added a layer of difficulty if the father failed to comply with orders.
The mother therefore proposed that time take place in the [P] area.
The father said that his lack of a motor vehicle and lack of funds meant that it was impossible for him to spend time with [X] in [P] because even if he was able to get there by train and bus he could not afford to pay for accommodation and he would not be able to take [X] about on the weekend.
However as Justice Rose observed in 2008 and as Mr P pointed out to the father on 30 January 2015 this is his choice. The father could choose to obtain some paid employment and put himself in a position to travel to Newcastle and obtain accommodation. He could choose to put himself in a position where he could either buy a motor vehicle or hire one when necessary.
The father also chooses to live at a distance from [X]. He did not explain why he left [T] in March 2014 and returned to Wollongong.
There is no reason why a heavy travel burden should be imposed on [X] or from time to time on the mother because the father, an adult, has made certain lifestyle choices.
The father suggested that there was no evidence that the travel was having an adverse impact on [X] and in particular pointed to his high level of achievement at school. However the alternate weekend time in Wollongong only commenced at some point after the December 2013 orders were made and the train travel only commenced after June 2014. [X]’s achievement at school and his appearance of being a well-adjusted child do not in those circumstances confirm that the travel is having no impact on him.
I must consider the capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The mother is capably parenting [X].
The mother did not dispute that the father fed and clothed [X] appropriately but she did raise concerns about his supervision of [X]. She believed for example that the father had left [X] alone in a tent during school holidays in 2013.
There are little snippets in the evidence which explain the mother’s unease. A concern about the father taking [X] out in a boat when he was three was raised in the proceedings before Justice Benjamin and the mother said and I accept that the father originally suggested that [X] commence travelling alone by train from Newcastle to Sydney at the age of 10. The entry in the COPS record raises a concern about the use of power tools.
The mother did not however suggest that the father’s time should be supervised and it would be impossible for me to make orders covering every issue that might arise while [X] is with the father so the issue of supervision does not assist me to determine the issues in dispute. I will deal with the train travel issue as a discrete issue in the proceedings.
The father has no capacity to provide for [X]’s emotional needs.
He admitted that he withheld [X] in July 2013 with a view to “bringing the matter [of his time with [X]] to a head.” As a result [X] missed 17 days school.
The father had no compunction in 2013 in involving [X] in court proceedings. He produced letters written by [X] requesting more time with his father than the then orders provided for. I have grave concerns about the likelihood of the father listening to [X] if [X] expressed a view different to his own.
However again the mother did not suggest that this should lead to a requirement that the time be supervised nor (in the end) did she seek a no time order and therefore while I have numerous concerns about the father’s parenting capacity these do need to be kept in context; the father is seeking time and the mother is not seeking to prevent him spending time.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
[X] is a bright child. He was Dux of his year in 2014 and was accepted into the Gifted and Talented program at [T] High School. He won a citizenship award and debating award in 2014.
The mother said that [X] had a strong social life and loved to spend time with his friends and that he had friends over on weekends including for sleepovers. I accept this evidence. It might be seen as aiding the mother in achieving her desired outcome of less time away from the [P] area but it is consistent with the kind of child Mr P found [X] to be and I found the mother a credible witness who seemed to have a very healthy and balanced view of the family situation and a capacity to put [X]’s needs first.
The father said that [X] had friends in Wollongong and that he had arranged for some of [X]’s friends from [P] to spend time with [X] in Wollongong. The mother did not challenge this but there was nothing to suggest that [X]’s friends accompanied him frequently or that he had close friends of his own age in Wollongong.
It was the father’s view in January 2015 when [X] was 12 that he was old enough to do the trip to Sydney on the train on his own. The father said that he would travel to Central to meet [X] and accompany him to Wollongong until such time as he felt that [X] was ready to change at Central and travel to [C] by himself.
The mother is strongly opposed to [X] travelling alone and Mr P did not support it at this time. His view was that this would not be appropriate until [X] was at least 14.
There was not a lot of evidence about this issue. There was no independent evidence of [X]’s view and I was not given any information about train travel to Sydney for example and how many people were on the train and whether there had ever been any incidents on this particular train.
It was clear however that the mother was genuinely anxious about the issue and was not opposing the father’s proposal out of mere unreasonable stubbornness.
I must consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother has capably parented [X] for his entire life. Despite the endless court proceedings between his parents he is on Mr P’s account a well-adjusted child. He is doing well at school and has recently commenced a sport called parkour.
The mother recently undertook 6 individual consultations at Unifam to assist her with issues surrounding the party’s entrenched conflict which in my view shows a good attitude to the child and the responsibilities of parenthood.
The father’s attitude to the child and the responsibilities of parenthood has not been good in recent times. The mother was forced to commence these proceedings in 2013 because the father did not return [X] after a visit for the stated purpose of trying to force the mother to agree to changes to court orders and he has blatantly failed to comply with the court orders on a number of occasions since then imposing burdensome travel and stress on the child’s mother..
I must consider any family violence involving the child or a member of the child’s family.
The mother was charged with an assault in 2003 as a result of an incident at changeover when she reactively kicked out at the father when he was attempting to remove an unwilling [X] from her. The charge was dismissed upon the mother entering into an s.10 bond and the mother said that she regretted her behaviour.
The mother said that in October 2013 the father forced a car door into her to prevent her leaving and make her talk to him about the court proceedings. I accept the mother’s evidence. She was a credible witness and her description of what occurred is inherently believable given other evidence about the father’s behaviour. This was an act of family violence by the father.
There are no family violence orders.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Unless the court makes exactly the orders the father wants, and even then given the history of the matter and the father’s failure to comply with orders, the risk of further litigation is extremely high.
I must consider any other fact or circumstance that the court thinks is relevant.
The parties have come repeatedly into conflict since August 2013 and have no capacity at present to communicate peacefully and productively. The fact that the mother was civil to the father on one occasion in 2014 when she collected [X] from his home in Wollongong is not evidence that the parties now have a good relationship.
At the request of the Independent Children’s Lawyer an order was made on 10 December 2013 for the parties to attend the Keeping in Contact program at Unifam to address ongoing conflict. The mother attended her intake interview and made an appointment for [X] to have an intake interview but the father refused to participate and Unifam cancelled the family’s involvement.
I can have absolutely no confidence that the parents woeful capacity to communicate is likely to improve in the future.
Parental Responsibility
In 2008 Justice Rose made an order that the mother have sole parental responsibility for [X] provided that she consulted with the father before making a decision. He gave the following reasons for this decision:
…The mother has had the primary care of the child almost for the whole period of time since the parties have separated.
The parties have had a conflicted parenting relationship whereby constructive communication and decision making for the benefit of the child has not only been limited, but for a large part of the period of this litigation at least, which has been ongoing now for at least two years, the areas in which they have reached agreement have been swamped by the number of topics and issues upon which they have disagreement.
In addition, the mother has not only carried out the primary care, supervision and upbringing of the child, but has also shouldered by far the greater responsibility for financial support of the child.
……….the range of child support, depending on whose version of the pattern of support is correct, is between $6.00 per week to $12.00 per week. ….there was no submission that the father can, or is likely to be able to substantially increase the level of financial support for the child.
With regard to long term issues affecting the child, I was referred by counsel for the mother to a number of family reports which are in evidence. At least in two of those family reports the father expressed the view, according to the report writer, that he is, and will continue to be, unable to reach agreement with the mother on those issues.
Consequently, in my view and for the reasons given, it is in the child’s best interest that the mother have sole parental responsibility qualified to the extent of the proposed orders.[9]
[9] Hand & David [2008] FamCA 802
Nothing has changed in these respects since 2008 and I could not possibly make an order for equal shared parental responsibility. The parties have no capacity to peacefully consult with each other and negotiate and reach agreement. Twelve years of litigation are ample evidence of that and the father passed up the opportunity to attend the Keeping in Contact program.
The mother sought a change to the 2008 order, namely that she have an ungarnished order for sole parental responsibility and in my view despite the preference of the Independent Children’s Lawyer for a conditional order (although a different conditional order to the 2008 order) I should accede to the mother’s proposal.
The mother has made good decisions for [X] to date. She has no intention of relocating or trying to change his surname. The father regularly treats her in an overbearing and cavalier fashion and puts her to trouble and expense when he feels like it. The situation with trying to schedule the submissions demonstrates that he is not always easy to contact. It is unreasonable and is unnecessary for [X]’s future wellbeing for the mother to be required to consult with the father before making a decision.
There is also no rational basis for requiring the mother to give the father six weeks notice before making a decision. This would be almost inviting further litigation, as the other conditions suggested by the Independent Children’s Lawyer are unnecessary.
The father offers interesting alternative views of the world to [X] but [X] can be exposed to those views while spending time with the father. The father does not need to share parental responsibility with the mother for that to occur.
The Family Report Writer’s recommendations
In his report released on 7 June 2014 Mr P recommended that [X] spend time with the father each alternate weekend from Friday afternoon to Sunday afternoon and for half of the three term school holidays and for two weeks of the Christmas school holidays. It was his view that despite the conflict between the parents [X] had a bond with the father and wanted to spend time with him and that this should be the overwhelming consideration.
When informed about the travel situation during cross-examination
Mr P said that it was a significant issue and he recommended that [X] continue to spend each alternate weekend with the father but that one out of every three alternate weekends be spent in [P].During cross-examination Mr P emphasized however that [X] was now 12 (he has turned 13 since Mr P gave his evidence) and that his peer group would become increasingly important to him. He said that as time went by [X] was likely to be involved in such things as weekend sport, having a part time job and social activities with his peers which he would consider more important than spending time with a parent, and that it was very important that as he got older he be allowed some control over whether he spent time with the father on weekends or travelled to Wollongong.
Mr P conceded that there were possible perils on public transport and said that he did not support [X] travelling alone on public transport between Newcastle and Central until he was 14.
Conclusion
Weekend time during school terms
Weekend time in Wollongong is a recent development in this matter. Prior to early 2014 no such time had occurred since 2009. The mother did not consent to time in Wollongong in late 2013 – early 2014; the father achieved it by the strategy of renting premises in [T] but his stay there was short lived.
It has now been tried and the onerous nature of it has been revealed and I do not accept that it is reasonable for the father to require [X] to travel from [T] to Wollongong each alternate weekend. After the end of the last school day of the week he is required to travel or wait for transport for a total of about 7 hours. After spending Saturday (estimate 13 hours) and (presuming that he wakes early on Sunday) about 3 hours of his waking hours on Sunday at the father’s home he leaves at 10.00am and arrives home about 8 hours later.
[X] is 12, almost 13. He has an established relationship with the father which he will not lose if he sees his father less rather than more frequently. He can benefit from the activities and interests the father offers him when he does see him. He does not need to see him every alternate weekend to benefit from that exposure.
The Independent Children’s Lawyer agreed that time in Wollongong during school terms should be reduced but felt that it should still occur on three weekends each school term.
There is considerable force however in the mother’s case that the alternate weekends in Wollongong should be abandoned, in circumstances where the father insists on the use of public transport, the distance makes travel arduous at the end of a school week no matter how it is undertaken, changeovers may be problematic because [R] is no longer available on Sundays and may become unavailable on Friday and [X] has a strong relationship with his father which will not be lost even if the father refuses to come to [P] during school terms.
There is also considerable force in the mother’s concern that she may be forced to do a long drive to collect [X] on occasions if the father fails to return him, and there is no reason why the mother, who is virtually solely financially supporting [X], should be required to do that.
I do not accept that there is clear evidence that [X] desires the weekends in Wollongong to continue nor do I consider it likely that he will do anything rash if they cease.
Another matter which supports orders ending the weekend travel to Wollongong is that while Mr P did not support an immediate end to it he commented that as [X] grew older the parents would need to respect his right to decide whether he wished to spend a weekend with his father or a weekend out of his local area and the Independent Children’s Lawyer said that [X] wanted some flexibility in the orders.
[X] has turned 13 and these parents are incapable of being flexible. There is a very high risk that if an order is made for either for alternate weekend time in Wollongong or for three weekends per term in Wollongong the matter will be back before the court sooner rather than later either on a contravention application or an application to vary the orders.
I intend to make the orders sought by the mother which will provide for [X] to spend three weekends per term with the father in the [P] area and from this point on whether the father sees [X] during school terms or does not see him will be a matter for him. He can drive to [P] and obtain accommodation there if he wishes. He can choose to earn some money to allow him to do this.
If the father fails to do this [X] and the father will still have ample time during school holidays to go boating, construct things, do parkour or participate in Buddhist activities.
On balance despite the recommendations of Mr P and the position of the Independent Children’s Lawyer I intend to make the orders sought by the mother about this issue.
Unaccompanied travel by train
The court does not operate in a vacuum and cannot ignore the fact that incidents do sometimes happen on trains. Children of [X]’s age have been abducted from public places. If the mother does not wish [X] to travel alone until he is older I am not going to order that it occur.
I do not need to make an order about this as the father will be required to return [X] to and collect him from Newcastle in order to spend time with him.
Christmas school holidays
The mother proposed that [X] spend time with the father from 4.30pm on 9 January to 4.30pm on 23 January in 2016 and each alternate year thereafter and from 4.30pm on the first Saturday of the holidays to 4.30pm on the Saturday that is 14 days later.
Save that the mother proposed that time run from 9 to 23 January rather than 10 to 24 January this mirrors the orders made in 2008.
The Independent Children’s Lawyer proposed that [X] spend time with the father for the second half of the Christmas school holidays which commenced in 2015 and each alternate year thereafter and the first half of the holidays which commenced in 2016 and each alternate year thereafter. He proposed that time commence at 9.00am on the first Saturday and end at 4.00pm on the Sunday falling closest to the mid-point of the holidays or commence at 4.00pm on the Sunday falling closest to the mid-point of the holidays and end at 4.00pm on the final Saturday of the holidays.
[X] will be 13½ at Christmas 2015. Mr P said that [X] had expressed a wish to have two weeks with the father at Christmas but there seems no good reason why he should not spend approximately three rather than approximately two weeks with the father from an emotional point of view and given that as a result of the orders I have made about time during school terms the only time [X] catches up with the father could be during school holidays I intend to make the order proposed by the Independent Children’s Lawyer.
Other orders sought
The mother proposed an order that if the father failed to return [X] on any occasion the next visit should not occur. I am not prepared to make that order. If the father fails to comply with orders in the future then consideration may need to be given to ceasing all time not just punishing the father and possibly [X] by the father missing a visit but this will only occur after a proper consideration of [X]’s best interests. The mother’s first course of action should be to file a contravention application.
Changeovers
As [R] is not going to be available on Sundays and could cease to be available on other days I intend to order that changeovers which do not take place at school take place at [omitted] Police Station. This is far from ideal and this Police Station is now some distance from the nearest train station but no other options were suggested.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 04 August 2015
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
0