Dealey and Vaille

[2020] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEALEY & VAILLE [2020] FCCA 287

Catchwords:
FAMILY LAW – Parenting – Parents living in Melbourne and Sydney respectively – child conceived during ‘long distance’ relationship – relationship rapidly breaking down after birth of the child – neither parent having significant financial resources – disputes about how much time the child spends with the father – disputes about travel and who should pay for it – orders made in child’s best interests bearing in mind practical difficulties of expense and distance. 

Legislation:

Family Law Act 1975 (Cth), s.4AB

Applicant: MS DEALEY

Respondent: MR VAILLE

File Number: DGC 1839 of 2019

Judgment of: Judge Burchardt

Hearing date: 5 February 2020

Date of Last Submission: 5 February 2020

Delivered at: Melbourne

Delivered on: 28 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Howe

Solicitors for the  Applicant: Jkb Lawyers Pty Ltd

Counsel for the Respondent: Mr James

Solicitors for the Respondent: Doolan Callaghan Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Stavrakakis

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders be discharged.

2. The Mother and the Father have equal shared parental responsibility for the child X born in 2019 (“the child”).

3. The child live with the Mother.

4. The child spend time with the Father as follows:

   A.Until the child attains the age of 2:

   (a).Any weekend that the Father is able to travel to Melbourne from 11:00am until 4:00pm Saturday and 11:00am until 4:00pm Sunday with changeover to occur at the Mother’s residence;

   (b).To facilitate time spent referred to in Order 4A(a) herein the Father will give the Mother 10 days’ notice of his intention to exercise such time.

   (c).On the last weekend of each month from 10:00am until 3:00pm on Saturday and from 8:00am to 1:00pm Sunday, with such time to occur in Sydney.

   (d).For the purposes of time spent referred to in Order 4A(c) herein, changeover shall occur at the Father’s residence unless otherwise agreed and the Father’s shall be responsible for the costs of travel for the mother and child and the Mother’s accommodation at a maximum figure of $250 per night.

   B.Upon the child attaining the age of 2:

   (a).Any weekend that the Father is able to travel to Melbourne from 10:00am Saturday until 4:00pm Sunday with changeover to occur at the Mother’s residence and the Father to notify the Mother pursuant to Order 4A(b) herein.

   (b).On the last weekend of each month from 10:00am Saturday until 5:00pm Sunday with changeover to occur at the Father’s residence and the Father shall be responsible for the costs of travel for the Mother and child and the Mother’s accommodation at a maximum figure of $250 per night.

   C.Upon the child attaining the age of 3:

   (a).Any weekend that the Father is able to travel to Melbourne from 5:00pm Friday until 4:00pm Sunday with changeover to occur at the Mother’s residence and the Father to notify the Mother pursuant to Order 4A(b) herein.

   (b).On the last weekend of each month from 5:00pm Friday until 4:00pm Sunday with changeover to occur at the Father’s residence and the Father shall be responsible for the costs of travel for the Mother and child and the accommodation of the Mother at a maximum figure of $250 per night.

   D.In the Christmas school holidays:

   (a).commencing in 2020, for a period of five consecutive days as nominated by the Mother for a period of five hours from 11AM until 4 PM on each of those days with changeover to occur at the Father's residence in Sydney and the Mother shall be responsible for the costs of travel and accommodation for the Mother and child, with such period to include either up to and including 24 December 2020 or to begin on 26 December 2020 with the mother to notify the father of her nomination of such period within 28 days of the date of these orders.

   (b).commencing in 2021, for a period of five consecutive days as agreed between the parties and failing agreement from 9 AM until 5 PM with changeover to occur at the Father's residence in Sydney and the Mother shall be responsible for the costs of travel and accommodation for the Mother and child, with such consecutive days to include either up to and including Christmas Day in 2021 or to begin on Christmas Day in 2021, and in 2022, up to and including 24 December 2022, or to begin on 26 December 2022.

   (c).commencing in 2023, and in each odd numbered year thereafter, for half of the Christmas school holidays as agreed, and failing agreement with the father for the first half of the holidays, and the mother for the second half, with the Mother to be responsible for the costs of travel for the child and commencing in 2024, and in each even-numbered year thereafter, for half of the Christmas school holidays as agreed, and failing agreement with the father in the second half of the holidays, and the mother for the first half, with the Mother to be responsible for the costs of travel for the child.

   (d).when the child attains school-age, for three weeks in the Christmas school holidays as agreed with the Mother to be responsible for the costs of travel for the child.

   E.      At times as otherwise may be agreed between the parties in writing.

5. The Father communicate with the child by Facetime, Skype or telephone communication, unless otherwise agreed each Monday, Wednesday, Friday and Sunday for a period of up to 5 minutes at times as agreed.

6. Each parent notify the other immediately in the event of the child suffering a serious illness or serious injury and advise the other parent of the names and contact details of any treating practitioners and authorise such practitioners to liaise with the other parent and this order shall be deemed to constitute such authority.

7. The Mother shall authorise any kindergarten/daycare/school attended by the child to provide to the Father at his expense copies of all documents normally provided to parents and this order shall be deemed to constitute such authority.

8. Both parents shall be at liberty to attend any school, sporting or extra-curricular events to which parents are normally invited.

9. Neither parent shall denigrate the other or the other’s family in the presence or hearing of the child nor cause nor suffer any other person to do so.

10. The Mother do all acts and things necessary to ensure that the Father is nominated as a contact on any enrolment forms for the child’s education.

11. The Mother forthwith arrange and maintain a family picture book of the Mother, Father and the child and will engage the child with same.

12. The child only travel in a car seat that meets current safety standards.

THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Dealey & Vaille is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1839 of 2019

MS DEALEY

Applicant

And

MR VAILLE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about a very, very young child, X, born in 2019.  A kernel of the difficulty between the parties is, essentially, the fact that the mother lives with her parents in Melbourne and the father lives in Sydney.  Neither of them is rich and so, obviously, the question of spending time itself is complicated by the extreme youth of the child and by financial issues. 

2. Although the parties have presented quite complex and somewhat differing proposals for the spend-time regime, it is agreed that the X should live in the primary care of her mother and that there should be an order for equal shared parental responsibility.  Disaggregating the parties’ competing proposals is not entirely easy because they are all quite complex, but unsurprisingly it can be said generally that the mother wants less time than the father and proposes that he pay for all or almost all of the costs of the time that is spent.  Unsurprisingly, the father wants more time and wants the mother to pay more of the costs.  The Independent Children's Lawyer’s position is somewhat between the two.

3. It should be noted that none of the proposals put by the parties are, in substance, ridiculous or misconceived.  I strongly suspect that whichever of the orders I make now, neither parties’ proposals, by the time that X is an adult, would be perceived necessarily to have made any difference were it possible such calibration to be conducted.  For the reasons that follow, I am going to make orders that are, to an extent, an amalgam of all of the positions put forward by the parties. 

Agreed or Uncontroversial Matters

1. The mother was born in 1992 and the father was born in 1982.  They met in 2018 (mother’s version) or 2017 (father’s version) in the context of their hobby activities, a matter they shared in common.  Both parties agree that they conducted what they have described as an interstate relationship.  This appears to have meant that one or the other of them travelled to where the other was living.

2. There is a difference of emphasis in the parties’ affidavits as to quite how well the relationship travelled from time to time, but on any view of the matter it seems uncontroversial that the mother became aware in about 2018 that she was 24 weeks pregnant.  This was perhaps a surprisingly late realisation on her behalf.  There is a dispute between the parties as to the extent of time the mother spent in Sydney both before the pregnancy became apparent and after but, on any view of the matter, the mother returned to Melbourne to give birth and the father was present at the birth.

3. Unfortunately, but perhaps not altogether surprisingly, the relationship between the parents did not endure.  I say this because self-evidently they had not lived together for any meaningful period of time but, rather, had conducted what one might reasonably infer was a passionate long-distance relationship.  Such relationships doubtless are very satisfactory in the context of romantic liaison but they offer, perhaps, a poor basis on which to deal with the drudge of everyday life together and the demands of looking after a very young child.

4. The mother returned to Melbourne it would seem on 12 June 2019, and issued her proceedings on the next day.  The father had already consulted lawyers in New South Wales.  No time was spent by the father with X from that point until the court made orders in October 2019 by consent which provided a necessarily limited schedule for X to spend time with her father.  When that time has taken place, the father has brought with him his own mother and his daughter by another relationship, B, who is now 13 years old.  It seems uncontroverted that B, despite the significant age gap, is keen to see her sister.

5. The mother has recently returned to work on a three day a week basis as a public servant and the father, is and has been for many years, a self-employed tradesman. 

6. In order to put the dispute in proper context, it is appropriate to turn now to what was said at Court.  What follows is taken from my notes.

The Opening and Evidence of the Mother

1. Counsel outlined the background to the relationship and the birth of X.  He noted that the father has asserted that the mother had intended to live in Sydney, which the mother denied.  He referred to the question of parental responsibility, noting that the mother sought sole parental responsibility in relation to education (this matter resolved in the running of the trial).  He noted there was a dispute as to the cost of travel and it was the father’s position that the mother should travel every third weekend to Sydney and pay for half the costs of such travel.

2. When called, the mother adopted her affidavit as true and correct.  Cross-examination  by counsel for the father commenced with the issue of equal shared parental responsibility but it is not now necessary to detail this.  The mother confirmed that, having met the father through their hobby activities, when she was living in Melbourne and the father in Sydney, she went to Sydney every three to four weeks.

3. It was put to the mother that she moved to Sydney to live in 2018.  She said she had never moved to Sydney.  She still had a full-time job in Melbourne.  She went up in the school holidays in 2018 but then went back to Melbourne.  She found out that she was pregnant in 2018.  She conceded that she and the father had discussed her moving to Sydney but there was no final decision until March 2019.  Then her parents drove up and she returned to Melbourne.  The father has work in Sydney and has bought a unit there.  She conceded that they had discussed her giving up her job.  She obtained a New South Wales driving licence in order to purchase a car but had always intended to bring it back to Melbourne.  Her Medicare address was always Melbourne.  She had attended birthing classes in New South Wales.  She always intended to give birth in C Hospital.  She conceded she had changed her address on the electoral roll to New South Wales.  The father had attended prenatal classes and attended the birth in C Hospital.  The father took time off work following the birth, but she had said this was up to him.  X had had suspected meningitis and the mother conceded that the father was at the hospital from 6:00am to 9:00pm while she was being treated. 

4. The mother conceded that the father had bathed X while she was in hospital but denied that the father had taught her how to do so.  She said, on more than one occasion in fact, words to the effect “the father can meet her basic needs”.

5. The mother had read the affidavit of the father’s former partner, Ms D.  She had met Ms D’s daughter, B.  The father has quite a good relationship with her.  The mother has qualifications.  She has learned about attachment theory and said that it is important to have strong role models in the children’s lives.

6. The mother agreed separation took place in June 2019.  Orders were made in October.  There had been a couple of FaceTimes.  The child was usually feeding or sleeping.  The father asked for FaceTime.  She had not offered it.  X is not yet verbal.  It is not appropriate for a child to be exposed to screens until they are two as this hinders their brain development.  The mother conceded she had proposed only one visit per year to Sydney until X was at school.  X has travelled.  She had done a plane ride but was upset.  Last year, she drove from Sydney to Town E and stayed there overnight and then home.  They stopped every two hours.  She had flown to the Region F with X in 2019 and came home in December.  This was a family holiday.  She had driven to Town G in 2019 which took about eight hours.  There were two drivers.  She knew there would be times she would have to travel to Sydney.  She understands the father sees B every third weekend and that she has no difficulty with X having a relationship with B. 

7. Time in Melbourne had been at a library although the first visit was at McDonalds.  In the period from July to October 2019, she had sent the father photos.  She stopped doing this because she was receiving harassing messages and phone calls.  She was not sure if the father had asked for face-to-face time before October.  She had discussed flying to Sydney for his birthday, but she was not comfortable going back into his space.  She had not replied to the father’s queries.   She conceded that she had not put any formal proposals for a spend-time regime until the day before trial.  She has no photographs of the father although has some on her telephone and could get a photograph of him.  She had given the father the information he had asked for.  She had not told the father about a hearing test for X because he had expressed no interest.  She was aware of costs of flights to and from Sydney.  She cannot afford to fly to Sydney.  It is roughly $200 per flight.  The father had been to Melbourne five times with B and the grandmother also.  She accepted that the father had no friends or relatives in Melbourne.  She accepted that each visit might cost the father approximately $1,500. 

8. The mother has no friends with whom she can stay where she could visit Sydney.  She cannot afford more than one visit to Sydney per year.  She has not applied for child support yet.  She works three days per week and lives with her parents to whom she pays board of $150.  The $150 she is paying each week for legal fees will, nonetheless, take years to pay back the monies owed to her father.

9. The mother had left her belongings when she left New South Wales and is slowly replacing them.  This includes the child’s cot and mattress and laptop computer.  She had asked for them, but he had refused.

10. The mother works Tuesday, Wednesday and Thursday.  When she was working full-time, she worked five days per week.  X is in childcare on Tuesdays, Wednesdays and Thursdays and she pays $180 for this.

11. The mother was cross-examined about alleged savings in a substantial amount.  She denied it was as much as the father asserted and said that she had bought a new car.  She does not have the money to pay for travel.  She had not thought about how often she would drive to Sydney.  She said words to the effect that she would not be comfortable with a drive of that length with the child. 

12. Counsel for the Independent Children's Lawyer cross examined about the difference between the four hours proposed by the mother and the five hours proposed by the father. The mother said she was concerned about the longer period of time because the child is still breastfed.

13. When asked what she could say that was good about the father as a father, there was an extensive pause before the mother said that he was interested in spending time with X.  In this regard, however, I would interpolate and say that the mother’s hesitation was understandable.  The father’s relationship is at such an early stage I think that about all that can be said, in any event, is that the father has expressed an appropriate interest in spending time with her.  He has spent so little time that any further observations are scarcely likely.

14. The mother conceded that X’s relationship with her father was important but said that travelling to Sydney would be disruptive to X’s routine.  She said that X does not travel well.

15. The mother said it did not matter where they spend time together.  It is the frequency of travel that is a problem.  Her financial position will not change in the foreseeable future.  The $150 she pays to her parents was agreed with her parents and she could not, herself, alter it and would not feel it was proper to do so.  She would probably apply for child support fairly soon.

16. In re-examination, the mother confirmed that she only has about $1,500 left of her savings which are steadily decreasing.  She would not drive to Sydney on her own as it would not be safe.

The Evidence of the Father

1. The father adopted his affidavits as true and correct also.  In evidence-in-chief, by leave, he gave evidence of having spent time with X in the last couple of days and that X was always happy.  There had been contact once per month since October and, on each occasion, he had brought B and his own mother.  He had paid for them also.  Flights, car and other costs usually amount to over $2,000.  If it was just him it would be $400-$500 less.  He still has about $5,000 in his account.  If there was no one with him he can stay in Melbourne.

2. Under cross-examination by counsel by the mother, the father confirmed he was a self-employed tradesman who works an average of eight hours on five days per week.  He charges $65 per hour plus GST.  His work expenses are taken out of that sum.  He claims 50 per cent of his phone charges only.  He has no idea what his gross income is.  Airfares between Melbourne and Sydney are $180 each way on average.  You can obtain airfares for $200 if you book far enough in advance.  He has no friends to stay with in Melbourne.  It was put to the father that motels could be obtained for $200 in the suburbs but the father said he had stayed in the city because it was more convenient for the airport and otherwise.  He was paying $250 for one room.  In my opinion, his evidence that he needed to stay for two nights was convincing.

1. The father said he may have to travel on his own without B and his mother.  He has about $1,000 available as a potential mortgage redraw. 

2. When asked about child support, the father said he asked the mother if she wanted money and she told him she did not.  He normally finishes work at 3:30pm on Fridays.  He had searched for accommodation in Melbourne and this was closer to the airport.

3. Under cross-examination by counsel for the Independent Children's Lawyer, the father confirmed that he had paid B’s mother $15,000 as a lump sum child support payment about 18 months ago.  This completely resolved his child support obligations in respect of B.  Before that, he had been paying about $150 per month for the 13 years of B’s life.  He had taken B on a 10-day cruise in 2013 but could not remember the cost.  His own father is retired but his business has been going since about 2001.  He is happy to share the costs of travel.  He does not have an offset account in relation to the mortgage but is going to set one up soon and will put his $5,000 savings into it.  He does not obtain tax refunds.

Final Submissions by Counsel for the Independent Children's Lawyer

1. Counsel informed the Court that parental responsibility was now agreed.  The mother’s income was lower than the father’s on any view.  His taxable income was $65,000.  He has paid for B for 13 years.  He has compromised his child support obligations in respect of B but with a lump-sum payment.  Counsel submitted that the mother and child should go to Sydney for the last weekend of each month with the father to pay.  The mother should pay for time at Christmas.  She is not renting and has generous terms from her parents for accommodation and living expenses.

Final Submissions for Counsel for the Father

1. Counsel indicated that his client largely supported the position of the Independent Children's Lawyer.  Equal shared parental responsibility was now agreed and residence had never been an issue.  The father will bear the costs during the year.  The mother earns some $35,000 to $40,000 and the father earns $65,000.  Notwithstanding possible offsets, there will be child support payments.  The father agrees that he should spend time with the child for the last weekend in each month.  He is flexible about hours and would be prepared to accept 10:00am to 3:00pm on the Sunday and 9:00am until 2:00pm on the Sunday if this was easier for the mother in respect of flights.  The father agreed that there should be changeover at his residence but was prepared to have changeover at the airport provided he was rewarded with slightly more time.  The father proposed to pay the airfares or petrol costs, if the mother drives to Sydney, for the mother and child and accommodation up to $200 per night. 

2. Counsel submitted that B was keen to encourage a relationship between the siblings.  This should be possible if X is in Sydney each month.  It was also desirable for X to meet the parental grandparents and the father’s extended family.  X has travelled to Town G and the Region F.  The father agrees with FaceTime and Skype.  He seeks time in the Christmas holidays each year and that Christmas Day alternate each year.  The father is committed to X and will pay most of the costs. 

Final Submissions of the Counsel for the Mother

1. Counsel made submissions in support of the schedule of orders submitted by his client.  It was submitted that these were age appropriate.  I note that it was expressly conceded that five hours of time with the father was not too much.  Time should proceed to eight hours, then overnight and then Friday to Sunday once X is at school.  So far as order 4D proposed by the Independent Children's Lawyer is concerned, the mother proposed that the father collect the child at Tullamarine and the mother recollect the child from Sydney airport.  The mother agreed with the Independent Children’s Lawyer’s proposed orders 1 and 2.  Order 4A(a) should be no more than two out of three weekends and order 4A(b) should require 14 days’ notice rather than five. 

2. The mother did not agree with order 4A(c).  This was the proposed last  weekend of each month.  If the court were to order this, it should be the last weekend every third month from Sunday 8:00am to 1:00pm and should not occur during January and February because of the Christmas holiday.

3. If time is ordered every month, the mother has a serious concern that the father will only see the child in Sydney, albeit that he will be paying.  It would be cheaper for the father to come to Melbourne than to pay for the mother and child’s airfares and the mother’s accommodation in Sydney.  Counsel submitted that every third month would be enough.  Counsel submitted that changeover should be at Tullamarine and Mascot when overnight time comes in and if I understood the matter correctly, counsel did not dissent from the proposition that changeover at the airport might be of assistance in any event given the difficulty of getting from Mascot airport to where the father lives.  During the time spent in Sydney, if the mother was collecting from the father’s residence, this should take place at 1:00pm.

4. In respect of the Independent Children's Lawyer’s proposed order 4D in respect of Christmas holidays in 2021 and thereafter, counsel submitted if the mother was to pay and there was no overnight time, the father should pay the mother’s accommodation in Sydney.  He had deposed to a gross income of $130,000.

5. In respect of proposed order 4E for Christmas holidays in 2023 and thereafter, it was submitted the mother should only pay half the costs of travel as the father was better off. 

6. Finally, the mother sought that the father ensure that the child travelled in an appropriate car seat that meets current safety standards.  Concern was expressed that the father might be using an old car seat that had previously been used for B which might now be out of date.

Findings about the Facts

1. It should be noted that both witnesses were, in my view, palpably honest.  I have some slight reservations about certain aspects of the evidence of each of them but they do not detract from the fact that these witnesses were plainly thoroughly decent people who were telling the truth.  In fact, the factual position in the case is really, relatively clear and, indeed in my view, uncontroversial.

2. These parties met and conducted what both of them described what was, in fact, a long-distance relationship.  While the relationship was no doubt romantically very satisfactory, the parties never lived together and therefore had no opportunity to investigate whether their personalities were truly compatible for a long-term relationship where they might actually live together.

3. In the latter part of 2018, the mother spent an extended period of time in Sydney.  The differences in the parties’ versions, in my view, are not significant.  In 2018, she discovered she was pregnant.  The mother conceded that there was plenty of discussion about her moving to Sydney.  She took a number of steps, including changing her address on the electoral role consistent with that position.  She says, however, that she was intending to give birth in C Hospital near her family.  I accept that that is so. 

4. She came back to Melbourne and did indeed give birth in that hospital.  The father, who has plainly, from the very start, engaged very fully with the notion of becoming a parent, was present at the birth and thereafter participated in an entirely laudable way in X’s care when she was returned to hospital with possible meningitis.  All of this does him credit.

5. The parties undoubtedly did return to Sydney, but they were not there for long.  In only a very short period of time, it became apparent to both of these parties that their relationship was not going to subsist.  The father has deposed that he had already contacted solicitors before the mother returned to Melbourne.  When the father became aware of the mother’s intention to return to Melbourne, he did everything in his power to prevent it.  In retrospect, this might not seem to have been such a sensible idea because it led to the mother feeling trapped. 

6. Nonetheless, his desire to try and keep the mother in Sydney, and more particularly, to keep the child close to him is very understandable at an emotional level.  In the end, the mother was able to return to Melbourne.  Had the father not been so difficult about it, he may have found the mother more accommodating in respect of time.

7. Thereafter, from the return to Melbourne in June until court orders in October, the mother did not make the child available to the father at all.  She said in her evidence that this was because of the demands of first-time motherhood.  While I accept that that would present a very considerable challenge, I think also she did not want the father in her life at that time, given the somewhat awkward series of events that preceded her return to Melbourne. 

8. Since time has been ordered, the father has taken every opportunity to spend time with his child and has brought B and his own mother with him.  Once again, this is a very sensible thing to do, but he will, as he himself acknowledged, have to consider his position in respect of the costs. 

9. Having made these findings, it is appropriate to come to the matters in dispute.  It is important to remember the statutory pathway which commences with consideration of parental responsibility.

10. In this case, there is no issue. All parties agree that there should be an order for equal shared parental responsibility. I should make it clear that I do not think there has been family violence, even within the extended definition in section 4AB of the Family Law Act 1975 (Cth), even though the father’s clumsy attempts to keep the mother in Sydney were regrettable.

11. In the end, there can be no doubt that both of these parents love the child and wish the best for her.  The father wants to spend as much time with X as he possibly can. The mother has decidedly a more cautious approach than he does.  Nonetheless, she is not proposing no time or anything akin to it.  The real problem is the question of costs because neither of these people have a lot of spare funds.

12. During cross-examination, counsel for the father put it to the mother that it was her case that it was just bad luck if the father could not afford, in effect, to spend time in Melbourne or Sydney with X.  Without in any sense decrying the emotional distress that lack of time with X may impose upon the father, the fact is that if two people, who are impecunious and who inherently and for good cause live in different states, produce a child without thinking through with how they are going to live together and end up remaining in their separate states, then the impecunious non-resident parent is indeed likely to find it very difficult to see their child.  It is a fact imposed by the tyranny of distance that obtains in Australia.

13. Having made these general remarks, I propose to work through the matter, doing my best to deal with the various matters raised by each of the parties.

14. I will endeavour to address the matters in issue by working through the matters raised by the Independent Children’s Lawyer’s minute. 

15. As already indicated, there is no dispute about parental responsibility nor that X should live with her mother.  Orders 1, 2 and 3 of the Independent Children’s Lawyer’s minutes are therefore uncontested and will be made.  That brings us to the spend-time regime.

Order 4A(a)

1. Both parties agree that, until X attains the age of two, on any weekend the father is able to travel to Melbourne, he should spend time with X from 11:00am until 4:00pm on Saturday and 11:00am until 4:00pm on Sunday with changeover at the mother’s residence with the father to be responsible for the costs of his travel and accommodation.  The mother however also seeks that this should not occur on more than two out of any three weekends.

2. The evidence suggests that the father will have the greatest degree of difficulty in getting to Melbourne in any event.  Indeed, it is the mother’s express concern that he may not come at all.  In my view, the prohibition on the excessive number of weekends is simply not necessary.  There might conceivably be circumstances where the father might be available to come on, for example, three or even four successive weekends.  Given that the mother only works for three days and has two weekdays with the child in any event, I do not think that the prohibition she seeks is in the child’s best interests.

Order 4A(b)

1. In this instance, the difference between the parties is the amount of notice that the father has to give the mother of his intention to come to Melbourne.  The Independent Children’s Lawyer and father seek that this be five days.  And the mother seeks that it be 14.  The mother has to be, as the primary carer, permitted to organise her life in a reasonable fashion, and this is plainly in X’s best interests that this occur.  In my view, 10 days’ notice should be sufficient.  This means that, for all practical purposes, the father would be notifying the mother by no less than the preceding Wednesday week which would give the mother time to readjust any timetabling issues.

Order 4A(c)

1. Here, the Independent Children’s Lawyer seeks that the mother fly to Sydney at the expense of the father on the last weekend of each month.  The father agrees, but is flexible about the hours and, as indicated in the submissions, proposes that time could be from 10:00am until 3:00pm on Saturdays and 9:00am until 2:00pm on Sundays to give the mother time to make and return on her flights.  The Independent Children’s Lawyer has proposed changeover at the father’s home.  The father is prepared to go to the airport, provided he obtains more time with the child.

2. The mother’s position is that, if the mother is required to travel to Sydney, she should be limited to the last weekend of every third month, and that time should only occur between 8:00am and 1:00pm and not at all in January or February because of the Christmas holiday that she proposes.  As indicated already more than once, it is her concern that if this order is made, the only time the child will spend with the father will be that in Sydney.

3. The submissions of all parties seem to me to accept implicitly that it is in X’s best interests to spend frequent but shorter amount of times with her father while she is very young.  This of course is rendered much more difficult by the tyranny of distance and the cost difficulties associated with this case.  In my opinion, given that the father is going to be paying all the associated expenses (subject to his proposal that the mother’s accommodation be limited to $200), a bedrock of at least a monthly visit is in the child’s best interests. 

4. This will of course be inconvenient to the mother and may, as she submits, actually cost more money.  It is immediately apparent that all these sub-facets of the dispute are not really about X’s best interests in any kind of abstract sense.  Rather, they reflect the father’s very eager desire to have every last minute with X that he can get and the mother’s nuanced hesitations about that, together with each side’s contending, very understandably, for the best cost outcome for them and most convenient outcome for them that they can get.

5. Although the mother has given evidence that X handled the only flight she has ever undertaken poorly, there is nothing to suggest that a child of such tender years will not be able to travel in the company of her primary carer.  Children of this age are routinely transported around Australia, as anyone who flies would be aware.  Even if the mother is correct and she ends up doing all the travel, the fact is that the father will be paying for it. This arrangement would, if it comes to pass, give X the benefit of regular time with X and the extended family in Sydney in any event.

6. So far as the costs of the mother’s accommodation is concerned, the father’s evidence is that he is able to obtain accommodation for some $200 a night in Melbourne.  There is no evidence before the Court as to whether costs of accommodation are commensurate in Sydney as they are with those in Melbourne.  I accept that it is reasonable to provide a maximum figure and will allot the figure of $250 as a maximum per night for the mother’s attendance in Sydney. 

7. I note that it is the mother’s position that if there is time in Sydney, and the mother is collecting from the father’s residence, this should be at 1:00pm. I think that is reasonable in the circumstances and, indeed, in principle, not opposed by the father as I understand it. 

Order 4A(d)

1. I accept that the father should pay for the costs of travel for the mother and child as the Independent Children’s Lawyer proposes, subject to the maximum I have described above for her accommodation.  In my view, changeover should be at the father’s residence unless otherwise agreed as this gives a measure of certainty that changeover at Mascot may not actually facilitate, bearing in mind plane schedules and the like.  There would then be issues, obviously, as to what, in effect, is make-up time that the father seeks and as to its quantification. 

2. Having said this, there is nonetheless something to be said for the father collecting the child at Mascot Airport because the mother would then not have to have the costs of going to the father’s residence for which she would otherwise be paying.  But I will leave that to such cooperation as the parties are able to engender. 

Order 4B

1. These orders concern the time regime when X reaches the age of 2.  The Independent Children’s Lawyer proposes that on any weekend the father is able to travel to Melbourne, time should be on 5:00pm, Friday until 4:00pm, Sunday, with changeover to occur at the mother’s residence, and the father to notify the mother five days beforehand.

2. The mother’s position is that there should be time for eight hours on each of the Saturday and Sunday, from 9:00am until 5:00pm and that time not occur more than two out of every three weekends.  The mother also has a proposal for the long summer school holidays, which I will return to as I will deal with the Christmas and long summer holidays separately.  For the reasons already given, I think that the notification period should be some 10 days.  Also, I do not share the mother’s apprehension about the multiplicity of such times. 

3. Little was said by any party as to whether day time only or night time should occur.  In my view, to move from circumstances where the child will not, subject to what occurs in the Christmas holiday 2020, have spent any overnight time with the father at all, to two nights overnight straightaway is, in my view, excessive.  There should be one overnight on each Melbourne visit until X turns 3, at which point, the Friday to Sunday regime should be imposed.

Order 4C

1. The Independent Children’s Lawyer proposes that X spend, during the 2020 Christmas school holidays, time with the father on five consecutive days as nominated by the mother for a period from 11:00am until 4:00pm on each of those days, with changeover at the father’s residence in Sydney, and the mother to be responsible for the costs of travel for herself and for the child.  Obviously, there would be no accommodation costs for the child.  The mother’s position is that this time should be for four hours, from 11:00am till 3:00pm, with the parties being equally responsible for the costs of travel and accommodation. 

2. Unsurprisingly, the father supports the Independent Children’s Lawyer’s position.  The mother’s position in submissions was more nuanced again, and it was put that if the mother was ordered to pay the costs of travel, and there was time which was not overnight time, the father should pay the accommodation in Sydney on the basis of his substantially greater wages. 

3. These are difficult areas.  In truth, neither of these parties is replete with funds.  The mother does have the benefit, however, of very generous accommodation terms with her family.  She has been able to afford to go to the Region F and to Town G with X.  In my view, and bearing in mind that at present, she works only three days and has not deposed to any particular difficulty that would prevent her working slightly longer, to ask her to pay for one trip to Sydney per year is neither unreasonable nor impracticable. 

1. She should pay the costs of travel and accommodation.  I think it is not agreed that there be five hours rather than three hours,  but in my opinion, by the time X goes to Sydney in the Christmas holidays 2020, she will old enough to sustain that regime.

Order 4D

1. This progresses the matter in the 2021 school holidays to five full days of time.  The mother’s proposal is for eight hours with the costs to be borne equally, rather than solely by her.  The father again supports the Independent Children’s Lawyer’s position.

2. In my opinion, by 2021, X will be almost three, and I think the period proposed by the Independent Children’s Lawyer is appropriate and in X’s best interests. 

Order 4E

1. The Independent Children’s Lawyer goes on to propose that from 2023, when X will be almost four, X spend half the Christmas school holidays as agreed, with the mother paying for the costs of travel to Sydney.  The mother’s position, which is nuanced on an increase of time when X attains the age of three, with overnight time then being introduced and two periods of two consecutive days over a five-day period in the Christmas holidays.

2. I observe again that really, there is no particular indicator to suggest that either of these proposals is objectively capable of being analysed as being superior in its quality in respect of X’s best interests to that of the other.  In my opinion, given that X will already have spent five days with her father in the previous summer, the time is ripe for her to spend two weeks. 

3. Once X attains school age, the time in the long summer holidays can increase to three weeks. 

Order 5

1. The Independent Children’s Lawyer’s proposed order 5 is, in my view, plainly in the child’s best interests.  It should be noted that the mother expressed the view that there should be no screen time for X until she is two as this is likely to impact her development significantly.  There is no medical or even social science material before the Court to support these reservations, and it is, in my view, entirely desirable, as I believe I indicated during the running of the trial, that this occur. 

2. The Independent Children’s Lawyer’s proposed for school and medical authorities and school attendances are replicated in order 7 and 8 proposed by the mother and will be made. 

Orders 8 & 9

1. The Independent Children’s Lawyer’s proposed Order 8 as to nominating the father as a contact is likewise plainly in X’s best interests.  Likewise, order 9 proposed by the Independent Children’s Lawyer seems to me to be eminently in X’s best interests.  It is greatly in X’s best interests that there be a photograph of her father, together with her mother and herself, and that this be explained to her. 

Mother’s proposed orders 6 & 9

1. I note that the mother has additionally proposed standard clauses as to notification of illness (proposed order 6) and non-denigration (order 9) which are plainly appropriate.

Christmas Day time

1. I believe the father seeks that Christmas Day alternate between the parents.  Little was said about this aspect of the father’s case.  In the circumstances, I am going to request the parties to consider the draft minutes I have prepared, and I will hear any further submissions about that outstanding issue.

Child’s car seat

1. Finally, I will make an order that the child only travel in a car seat that meets current safety standards, as the mother seeks.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  28 February 2020