Devlin and Judd
[2018] FCCA 371
•20 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEVLIN & JUDD | [2018] FCCA 371 |
| Catchwords: FAMILY LAW – Parenting – time with father – parental responsibility. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR DEVLIN |
| Respondent: | MS JUDD |
| File Number: | PAC 4754 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 22, 23, 24 and 26 May 2017 |
| Date of Last Submission: | 26 May 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 20 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Shedden & Associates |
| Counsel for the Respondent: | Mr Hodgson |
ORDERS
All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the long term care, welfare and development of the children [X] born (omitted) 2008, [Y] born (omitted) 2011 and [Z] born (omitted) 2014.
The children shall live with the mother.
The children shall spend time with the father:
(a)In respect of the children [X] and [Y]:
(i)From the conclusion of school on Friday until 5.30pm on Sunday each alternate week commencing 23 February 2018.
(ii)From the conclusion of school on Tuesday until the commencement of school on Wednesday commencing 27 February 2018.
(iii)For one half of the school holidays at the end of Term 1, 2 and 3, being the second half of the school holidays in even numbered years commencing in 2018 and the first half in odd numbered years commencing in 2019.
(iv)For one half of the Christmas/January school holidays, upon a week about basis in alternating weeks being weeks 2, 4 and 6 in the school holidays at the conclusion of the 2018 school year and thereafter for one half of the school holidays, being the second half of the school holidays in even numbered years commencing in 2020 and the first half in odd numbered years commencing in 2019.
(v)Notwithstanding any other order on Father’s Day from 9am until 5.30pm;
(vi)Notwithstanding any other order from 3pm on 25 December until 3pm on 26 December each year;
(vii)Notwithstanding any other order from 9am on Good Friday until 9am on Easter Sunday each alternate year commencing in 2018 and from 9am on Easter Sunday until 5.30pm on Easter Monday each alternate year commencing in 2019;
(b)In respect of the child [Z]:
(i)Until he turns four years old:
1. From 10am until 5.30pm on Sunday each alternate week commencing 25 February 2018;
2. From 3pm on Tuesday until 9am on Wednesday each alternate week commencing 27 February 2018.
(ii)Upon turning four years old and thereafter:
1. In accordance with paragraph 4(a) above.
(c)On each of the children’s birthdays all three children shall spend time with the father for three hours as agreed and failing agreement from 3pm until 6pm.
If changeover is to occur at the commencement and conclusion of school then it shall occur at the school which the children attend (including for [Z] at all times).
In order to facilitate changeover during school holidays and on other occasions while the children are not at school changeover shall occur at (omitted).
The father shall have telephone contact with the children during school holiday periods when the children are not in his care between 10am and 10.30am on Tuesdays and Thursdays.
The mother shall have telephone contact with the children during school holiday periods when the children are not in her care between 10am and 10.30am on Tuesdays and Thursdays.
In order to facilitate orders 7 and 8 above the party who has the care of the children shall ensure the children are contactable to receive a telephone call on their mobile phone.
Notwithstanding any other order, the children shall spend time with the mother on Mother’s Day from 9am until 5.30pm.
Notwithstanding any other orders the children shall spend time with the mother on the children’s birthday for three hours and failing agreement from 6pm to 9pm.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Devlin & Judd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4754 of 2014
| MR DEVLIN |
Applicant
And
| MS JUDD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings concerning three children [X] born (omitted) 2008, [Y] born (omitted) 2011 and [Z] (omitted) 2014.
The parties to the proceedings are the Applicant father Mr Devlin and the Respondent mother Ms Judd (formerly Devlin).
The proceedings were commenced by the filing of an Initiating Application by the father on 7 October 2014. The father amended his Initiating Application on 24 April 2017.
The mother filed a Response to the father’s Initiating Application on 17 November 2014 and filed an Amended Response to the father’s Amended Initiating Application on 26 April 2017.
Documents Relied Upon
The father relied on the following documents at hearing:
a)Amended Initiating Application filed 24 April 2017;
b)Affidavit of Mr Devlin filed 24 April 2017; and
c)Affidavit of Ms I filed 23 April 2017.
The mother relied on the following documents at hearing:
a)Amended Response filed 26 April 2017;
b)Affidavit of Ms Judd sworn 10 November 2014;
c)Affidavit of Ms Judd sworn 17 June 2015;
d)Affidavit of Ms Judd sworn 12 February 2016;
e)Affidavit of Ms Judd sworn 21 April 2017; and
f)Affidavit of Mr S sworn 21 April 2017.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Chain of text messages between the parents dated 6 April 2016;
b)Exhibit 2 – 3 photographs;
c)Exhibit 3 – (omitted), New South Wales Police Subpoena, Sleeve 16;
d)Exhibit 4 – Tab F1, (omitted medical practice) Subpoena, Sleeve 28;
e)Exhibit 5 – School notes being tab F1, School A School Subpoena, Sleeve 24;
f)Exhibit 6 – Email from the mother to the father’s solicitor dated 17 October 2016;
g)Exhibit 7 – Application for Enrolment being tab F9, School A School Subpoena, Sleeve 24;
h)Exhibit 8 – Family Report of Ms K dated 20 October 2016; and
i)Exhibit 9 – Bail report of the father being tab F5, New South Wales Police Subpoena, Sleeve 6.
Competing Proposals
The father sought Orders as contained in his Amended Initiating Application being:
a)That the parties have equal shared parental responsibility for the children;
b)That the children live with the mother;
c)That the children [X] and [Y] spend time with the father on specific school days and during the school holidays;
d)That the child [Z] spend day time with the father gradually increasing to include some overnight time with the father;
e)That the children spend time with each of the parents for special occasions such as Mother’s Day, Father’s Day and the children’s birthdays; and
f)That the children be placed on the airport watch list.
The mother seeks orders in accordance with a Minute of Orders handed to the Court on 25 May 2017 and marked MFI ‘1’ being that:
a)The mother have sole parental responsibility for the children;
b)The children live with the mother;
c)The children [X] and [Y] spend time with the father each alternate weekend from 3pm on Friday until 5.30pm on Sunday and on alternate Thursdays from 3pm until the commencement of school the following day and for defined time over the school holidays;
d)The child [Z] spend time with the father for day time only each alternate Thursday in the first week and each alternate Sunday in the second week until the child commences school and upon his commencing school at the same time that the older two children spend with the father.
The Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8] affirmed the legislative pathway.
[7] (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] [2010] HCA 4
Issues for Determination
The primary issues for determination are parental responsibility and what time the children are to spend with the father.
The Relevant Facts
The mother was born on (omitted) 1974 and is currently aged 43 years.
The father was born on (omitted) 1975 and is currently aged 42 years.
The parties commenced cohabitation in December 2005.
The first child of the relationship, [X] was born on (omitted) 2008.
The child [Y] was born on (omitted) 2011.
The parties separated on 6 January 2014 when the mother was approximately (omitted) months pregnant with the parties third child.
The parties’ third child [Z] was born on (omitted) 2014 however, the mother did not advise the father of this until 18 June 2014 and named the child without consultation with the father.
The father filed an Initiating Application on 7 October 2014 and as a consequence Court orders were made on 12 November 2014 for the children to live with the mother and spend time with the father.
Further orders have been made throughout the proceedings altering and increasing the father’s time with the children.
The father currently lives in (omitted).
The mother currently resides in (omitted).
Parties’ evidence
The father says that he was an active parent with the children prior to the parties’ separation and that he helped to care for the children including bathing, dressing, changing nappies, feeding and nursing the children.
The father was self-employed as a (occupation omitted) and was able to adjust his working hours to suit the family needs which allowed him to assist with housework including shopping and cleaning particularly when the mother was unable to do such activities following the birth of the parties’ child [X] by caesarean section.
The parties employed the assistance of a nanny in 2009 as the mother had returned to work and the father continued to be self-employed. The father was still available in the early afternoons to care for [X].
The paternal grandmother and aunt had assisted the parties with the care of [X] during 2010 as the parties could no longer afford the assistance of a nanny. The maternal grandmother assisted with the care during the time that she visited Australia from (country omitted).
The father says that the mother became very invested in her work and that he was the primary carer for the children [X] and [Y] following the mother’s return to work after their births. The father says his relationship with the two children [X] and [Y] was strong up until separation. The mother denies that the father was the primary carer of the children and says that she was the primary carer at all times. The mother has been the sole carer of the child [Z] since his birth.
The father ceased being a self-employed (occupation omitted) at about the time of [Y]’s birth and worked as a self-employed (occupation omitted) which again allowed the father flexibility with his working hours. The mother says that the father cared for [X] for approximately four to five hours on the days that the mother worked when he arrived home from work or from (omitted).
The father says that in September 2011 the parties had again agreed to hire the assistance of a nanny as the mother was working long hours from approximately 8am to 6pm and sometimes into the night from home. The mother says that when [Y] was approximately six months old the nanny had told her that the father had “grabbed me by the arm and dragged me into the kids bedroom. He shut the door and told me to stay there” the mother says that this was in response to the father not being able to handle the child’s crying.
The father says that the mother’s work schedule impeded her time with the two children and allowed the father to be a greater presence in their daily schedules. The mother however says that by the end of the parties’ relationship the father was working six days per week and coached and/or played (omitted) six afternoons/evenings per week.
The parties separated during the mother’s third pregnancy and the father’s evidence is that the mother ceased all communication with the father concerning their third child. He says that he would send many text messages and emails concerning the progress of their unborn child, however the mother would not reply.
The father says that following their separation he had requested to be present at the birth of the parties’ third child, however the mother did not reply. The mother never informed the father of any medical appointments pertaining to the pregnancy of the parties’ third child.
Each party makes allegations of family violence.
The father says that the mother was a perpetrator of physical abuse towards him during the relationship.
The father alleges that in about June or July 2010 the mother returned home in the early hours of the morning intoxicated. The father says he was holding [X] and the mother pushed the father in the chest and scratched him on the arm and proceeded to drag the child from the father’s arms by her legs. The father removed the mother’s hands from the child and told her to go to bed to sleep it off.
The father says the mother would frequently become aggressive towards him and would often be yelling at him to the point where their noses would almost touch.
The mother gives evidence in the proceedings of the father grabbing her by the throat and holding her to the wall, pushing her head to the car window with his forearm, being verbally abusive with him calling her names such as “fucking bitch” and “slut”.
After separation, the mother significantly decreased the father’s time with the two older children stating to the father “you don’t deserve to see them. You left the family, you left, you left the kids”. The father says the time was dictated by the mother and was sporadic. The mother says that the father’s sporadic time was a result of the father’s work and training/coaching schedule.
The parties came to an agreement for the father to spend each alternate Sunday from 8.30am to 3pm with the children. The mother says that this time was reduced by agreement to 1.30pm as [Y] would return to the mother’s care unsettled.
The father says that the mother unilaterally changed the swim school of the children [X] and [Y] and advised the father that “your presence generally impacts negatively on myself and my unborn child as previously mentioned”. The father’s evidence is that he was present at the same venue as the children’s swim school as she was contracted as a (occupation omitted)(occupation omitted) there and that he did not attend the venue to intimidate the mother. The mother says he would stand at the opposite side of the pool and stare at the mother for minutes and on one occasion made the mother leave the pool area in tears.
The father was contacted by (omitted) Police on 22 March 2014 who advised him that he was no longer able to collect the children from the mother’s home and the mother was alleging that the father was intimidating her and that she feared for her safety. The father denies ever being abusive or intimidating towards the mother or the children.
On 18 June 2014 the father received a text message from the mother saying “Our son has been born alive and healthy. If you wold like to see him today at 11.45am for 15 minutes I can arrange that for you. Please let me know in the next 30 minutes”. The father was working when the message was sent and he did not see the text message until 12.53pm that day. The father later learned that the mother did not text him about the birth of their son [Z] until two days after his birth. The father eventually met [Z] for one hour on a Sunday afternoon, however the father says that this time was restricted by the mother to occur in the foyer of (omitted) Police Station.
The mother’s version of this differs slightly. She says that she was so intimidated and fearful of the father’s presence during [Z]’ birth that she had arranged for security presence at the hospital to protect her from the father. She says this was on the advice from Police. The mother says that:
Following [Z]’ birth, I sent two text messages to Mr Devlin, one text message to Ms I and had a girlfriend email Mr Devlin to notify him of the birth. A few days later when I had recovered from the caesarean, I invited Mr Devlin to spend time with [Z] at the hospital briefly before I was discharged. However, Mr Devlin did not respond to my text message until after I was discharged.
The mother says that she attend (omitted) Police Station a few days later and said that she wanted the father to see their newborn child but that she did not feel safe. She says the police officer sent the father a text message and told him to visit the mother and child at the Police Station, however the father did not attend.
The mother named the child without consulting the father.
The father says that the mother continued to limit the father’s time with the older children and did not allow the children to spend any overnight time with him.
The father has completed a number of parenting programs such as ‘Kids in Focus’ and also attended a post separation parenting program with Relationships Australia.
The mother declined to partake in Family Dispute Resolution with the Family Relationships Centre and the father was issued with a section 60I certificate.
On 2 August 2014 the mother emailed the father to advise him that his time with the children had been suspended due to the police issuing an Apprehended Domestic Violence Order for the protection of the mother who alleged the father had been intimidating her again. The Application initially proceeded in the Local Court at (omitted) in the absence of the father as there was miscommunication regarding the Court date. The father successfully annulled the Judgment made in his absence. The application was ultimately dismissed at trial on 13 October 2014.
It was following the father’s Initiating Application before the Court that the father began to spend time with all three children on a graduated basis and it is the father’s evidence that this time has been progressing well.
Towards the end of 2015 to early 2016 the mother made the unilateral decision to move the children’s residence from the (omitted) area to (omitted) and unilaterally changed [X]’s school enrolment to School A School commencing in 2016. The father was made aware of this change on 17 January 2016 via correspondence from the mother’s solicitor after the fact.
On 18 February 2016 Orders were made for the mother to return [X]’s school enrolment to her previous school at School B in (omitted) by 22 February 2016. The mother complied with these orders, albeit one day after the required time. Since this time however further Interim Orders have been made by the Court to return [X]’s school enrolment to School A School.
Apart from the above Apprehended Domestic Violence Order application the father in his Affidavit says that he does not have any other criminal history. However, the mother in her Affidavit says that the father “has an extensive criminal record, including convictions for assault”. In cross examination the father conceded that he has been charged at least three or four times, including for actual bodily harm and common assault. Although he initially said that he had been charged but that he has never been convicted, he later conceded in cross-examination that he has been convicted in the past, albeit when he was much younger.
The mother says that she is concerned about the father’s “fascination” with violence. She annexes to her Affidavit a number of images which she obtained from the father’s computer files including images of people who have been killed and the father holding an AK-47 in (omitted). The mother also hold concerns over the father’s like of cage fighting and kick-boxing. The mother says that the father used human growth hormones and steroids during their relationship and has “weapons training”. The mother also says that the father would often threaten to “sort people out” if they had wronged him.
The father complains of a number of injuries sustained by the children whilst in the mother’s care and particularises injuries such as an injury to [Y]’s face following the paternal uncle throwing a wooden toy at [X], bite marks to [Y]’s hand and bruising to [Y]’s face all of which he said occurred prior to the children coming into his care.
The father reports that [X] and [Y] have made a number of disclosures which have troubled the father including that [X] was assaulted by her 13 year old cousin who was minding the children and who “tried to suffocate her” and that “[Z] fell and hit his head whilst Uncle M was looking after us”.
Relevant Considerations
Ultimately, the parents were very close in terms of the orders each of them was seeking. Notwithstanding the various factual disputes and allegations of violence, each parent sought an order that the children live with the mother and spend significant and substantial time with the father – with [Z]’ time being increased on a gradual basis.
The dispute about [Z]’ parentage, a matter which was resolved prior to the final hearing, and one which caused the mother a great deal of distress in the Court’s view, resulted in the parties animosity and acrimony increasing. It is the Court’s finding that the father had no real reason to dispute that he was [Z]’ father and that challenging the mother on this was an opportunistic action on his behalf.
By the time the parties were engaged in the final hearing most of the issues between them had so to speak “fizzled out” and despite the Court’s encouragement the parties were far too invested in having their dispute aired in public, to come together and resolve their parenting dispute.
Parental responsibility
The mother sought an order for sole parental responsibility, while the father sought an order for equal shared parental responsibility.
There is of course, contained in the legislation, a presumption of equal shared parental responsibility which may be rebutted in certain circumstances. The presumption is rebutted if there are reasonable grounds to believe that a parent has engaged in family violence or by evidence that satisfied the court that it would not be in the children’s best interest of the children for the parents to have equal shared parental responsibility.
On behalf of the father it was submitted that while the father had sent a series of text messages to the mother which were “deserving of sanction” by the Court and that there is no doubt that there is animosity between the parents, if communication between the parents is to be by text message and in a polite and respectful manner, something which the parents have the capacity to do, then there is no reason why an order for equal shared parental responsibility ought not be made. It was further submitted that there was overwhelming evidence that if an order for the mother to have sole parental responsibility was made then the father would be excised from the care of the children.
On behalf of the mother it was submitted that the father had engaged in coercive and controlling behaviour and that there is a lack of trust and respect between the parties. There was a lack of co-operation, communication and compromise and when the parties lacked such things then an order for sole parental responsibility was appropriate.
Section 65DAC provides that if parents are to share parental responsibility, they are taken to be required to consult with one another and make a genuine effort to come to a joint decision about that issue. That provision does not necessarily mean that parents have to have equal shared parental responsibility. If they are to share the responsibilities, there must be a modicum of respect and ability to consult and make decisions together.
In the circumstances of this case, there is little prospect that the parents could fulfil their responsibilities in any joint sense and comply with their obligations under s65DAC. This much is demonstrated by the ongoing dispute the parents at final hearing even though there was, apart from the issue of parental responsibility and the progress of [Z]’ time with the father, no real difference in the orders which they sought.
Therefore, until such time as the parents can have appropriate respect for each other and make decisions in a consultative way, the person who has the major responsibility for the daily activities and with whom the children live, should be the person who has the responsibilities for making any long term decisions. In this case, that is clearly the mother.[9]
[9] Penski & Kocher (No.2) [2013] FamCA 255 at [69]-[72]
In relation to the children’s schooling, that decision, being a major long term decision will be one which the mother will be able to make on her own by virtue of the orders for sole parental responsibility. The father can offer, if he so chooses, his views about the schools which may be appropriate and likewise he can offer, if he so chooses, to pay for the children’s schooling.
Children’s Best Interests
All three children have close and loving relationships with the mother and the father. The mother is their primary attachment and their primary carer. While the evidence of the Family Consultant is that the children are aligned with the mother, the Court finds that despite some hiccups, the mother has by and large promoted the children’s relationships with the father.
The mother is a woman who appears to the Court to have a certain level of anxiety. She, at times perhaps, worries unnecessarily about things which are beyond her control. This has caused some conflict between the parties, and it is the Court’s view that both parents need to realise that they cannot tell the other party how to parent. What each of the parents does with the children during the time the children are with him/her is up to that parent, provided of course that the children are safe and well looked after.
While the father’s accommodation may not be ideal, certainly it is adequate for the children to be spending overnight time with him. While the father might not engage in activities with the children which the mother deems appropriate, his engagement with the children in the Court’s view is not inappropriate.
What is concerning to the Court however, is the opinion of the Family Report writer who states as follows:
Mr Devlin and Ms Judd both presented as having a limited ability to maintain a child-focused narrative during interview, instead focusing on their reported concerns and grievances regarding the other. This raises concerns regarding both parent’s willingness and ability to appropriately and consistently encourage and facilitate the children building and maintain meaningful relationships with the other. If the children are unable to maintain meaningful relationships with both parents it is likely to have a detrimental impact on their psychological wellbeing including identity development and capacity to build and maintain close relationships, neither parent demonstrated an understanding of that.[10]
[10] Paragraph 68 Family Report
The Court’s view of the parents after observing them both during cross-examination and during the hearing is similar. Both of them need to be more child-focused, particularly in their interactions with one another. The children must be kept out of the parental conflict, something which the parents had not been able to do as at the time of the final hearing. The children’s exposure to the parental conflict is a matter of significant detriment to them, particularly for their psychological wellbeing.
The allegations made by the mother of family violence, a matter upon which the Court will not be making any findings, ultimately in the Court’s view would not (even if the facts were established on a balance of probabilities) give rise to a finding of unacceptable risk of harm to the children. The physical discipline of the children, as described by them to the Family Consultant , is also something which does not give rise to an unacceptable risk of harm, but is behaviour which ought not continue.
It is also a finding of the Court that the father has engaged in abusive behaviour towards the mother. Such a finding is based on the text messages which the father sent, which included the following comments:
… Once again you have shown how pathetic and low you really are… the fact that you are willing to put the kids in the middle of it shows just how much of a lowlife grub you are!!! I look forward to the day they grow up and finally see you for the lying cheating manipulating grub you really are, I will welcome them with open arms the they walk out on you, the same way I did!!!...
The two older children have been spending overnight time with the father each alternate weekend, and the youngest child has to date, only spent day time with the father. The parties’ proposals differ slightly in the time the children are to spend with the father and ultimately both are informed and thought out proposals.
With respect to [Z], the mother proposes for the overnight time to only commence after he has commenced school. This order is not in line with the recommendations of the family consultant and is not the subject of any objective evidence.
The Court accepts the recommendations of the family consultant in respect of the children’s time as being in the children’s best interest. In terms of practicalities, the Court finds that given the distance between their school and the father’s residence and what this means in terms of real time in Sydney traffic in the Court’s view any inconvenience of travel for the children is outweighed by the benefit to them of the father being involved in their after school care, including homework being completed. Likewise, the Court finds that it is best for these children time with the father proceed in the simplest fashion possible, with as few changeovers as possible.
At the time of publication of this judgment, the children are nine, six and a half and three and a half. The two older children are at school and the youngest will be four by (omitted). They have had the benefit of spending meaningful time with the father since the making of the last set of interim orders and continuing after the hearing. The Court infers that they are settled in both parent’s care.
Both parents have extended families overseas. Both parents submit to the Court that the children should be permitted to travel overseas with the parents. The father says that [Z] should be allowed to travel only after he turns 6. The Court does not accept this submission as it is not supported by the evidence. Restricting the other children’s potential overseas travel for a further two and a half years because of an arbitrary age selected by the father is not in the children’s best interest.
Provided that each of the parents has provided appropriate notification to the other parent about the proposed period of travel and that such travel does not impinge upon the children’s time with the other parent then there is no reason to restrict such travel until such time as [Z] turns six years old.
The mother submits that the children should spend the Christmas school holidays with each of the parents on a week about basis as the children have not been away from the mother for longer than eight days. If either parent proposes to take the children on a holiday during this period, then in the Court’s view a week is not sufficient time to do so, particularly if it is a short overseas holiday. It would also defeat the purpose of an order permitting the parties to travel overseas if the realities of the situation were that the children never spent longer than 1 week during school holidays with either of their parent. However, given [Z]’ present age, the time the children spend with the father at the conclusion of the 2018 school year will be limited in the manner suggested by the mother and thereafter it will be simply for half the school holiday period.
Conclusion
For all of those reasons, orders are made as set out at the forefront of these Reasons.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 20 February 2018
Key Legal Topics
Areas of Law
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Family Law
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