Dirksen & Sobol
[2024] FedCFamC1F 831
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dirksen & Sobol [2024] FedCFamC1F 831
File number(s): SYC 365 of 2022 Judgment of: BAUMANN J Date of judgment: 4 December 2024 Catchwords: FAMILY LAW – CHILDREN – Where the proceedings were listed for final hearing in relation to property and parenting matters – Where orders were made by consent on the first day of the trial removing a third party associated with the property proceedings – Where subsequently the property proceedings were bifurcated – Where the parties are largely in agreement on parenting matters – Where the remaining disputed parenting issues were exacerbated by the parents’ differing parenting styles and opinions in relation to the management of the child’s behavioural challenges, of which the child has now received a formal diagnosis Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Division: Division 1 First Instance Number of paragraphs: 102 Date of hearing: 18 – 21 November 2024 Place heard: Heard in Sydney, delivered in Brisbane Counsel for the Applicant: Ms R Wilson Solicitor for the Applicant: Swaab Counsel for the Respondent: Ms A Petrie Solicitor for the Respondent: Jordan Djundja Lawyers ORDERS
SYC 365 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DIRKSEN
Applicant
AND: MS SOBOL
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders are discharged.
Decision making responsibility
2.That the parents have joint decision-making responsibility for the major, long-term issues concerning the child, X born 2016 (“the child”), including but not necessarily limited to matters concerning:
(a)the child’s education;
(b)the child’s health (including decisions for medical procedures but not day to day health decisions);
(c)the child’s religious and cultural upbringing;
(d)the names of the child, including any change to the names that they are currently known by; and
(e)any changes to the child’s living arrangements which may make it substantially more difficult for the child to spend time with both parents in accordance with these Orders.
3.That in the exercise of their joint decision-making responsibility for the child:
(a)the notifying parent must inform the other parent in writing of any decision that needs to be made;
(b)the other parent must respond within seven (7) days in writing with their views in relation to the decision;
(c)in the event the decision is an urgent decision or an emergency, the notifying parent must text the other parent to inform them and then telephone them to reach a decision;
(d)each of the parents must use their best endeavours to consider the view of the other parent in reaching a decision;
(e)in the event the parents are unable to reach an agreement on the decision, they shall use dispute resolution as set out in these Orders; and
(f)in the event that the responding parent does not respond to the notifying parent within seven (7) days, the notifying parent is at liberty to make the decision and inform the responding parent of the decision that has been made.
4.That each parent will have responsibility for the children’s day to day decisions relating to their care, welfare, and development during those times that the child is in their care.
Living arrangements
5.That during the gazetted school terms in 2025 and unless otherwise agreed in writing between the parents, the child shall live with the father:
(a)in week one (1), and each alternate week thereafter, from after school (or 3.00pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on Monday; and
(b)in week two (2), and each alternate week thereafter, from after school on Thursday (or 3.00pm if a non-school day) until before school (or 9.00am if a non-school day) on Friday.
6.That during the gazetted school term in 2026 and thereafter, the child shall live with the father each alternate week thereafter, from after school (or 3.00pm if a non-school day) on Thursday until before school (or 9.00am if a non-school day) on Tuesday.
7.That the child shall otherwise live with the mother.
School holidays
8.That for terms one (1), two (2) and three (3) school holiday periods, the child shall spend the first half of school holiday periods with the mother from after school at the commencement of the school holiday period (or 3.00pm if a non-school day), with the changeover for the child transitioning into the care of the father to be at 6.00pm on the halfway day through the school holiday period, and the father shall thereafter deliver the child back to school at the end of the school holiday period (or at 9.00am if a non‑school day).
Easter
9.That if Orthodox Easter and Catholic Easter does not fall during a school holiday period, then the child shall spend time with each parent as follows:
(a)The mother shall collect the child from school on the last day of school and deliver him to the father’s premises at 1.00pm on Easter Sunday; and
(b)The child shall spend time with the father from 1.00pm on Easter Sunday until the commencement of school the following Tuesday (or 9.00am if not at school); and
(c)For Orthodox Easter, when Monday is not a public holiday, the child shall spend time with the father from 1.00pm Easter Sunday until the commencement of school, the following Monday (9.00am if not at school).
Christmas
10.That during the Christmas school holiday period the child shall spend time with each parent as follows:
(a)In 2024 and each even numbered year thereafter, the father shall collect the child from school on the last day of school (or 3.00pm if not at school), following which the child shall spend time with the father for fourteen (14) days (including the last day of school) and shall deliver him to the mother at 1.00pm fourteen (14 days) from the last day of school;
(b)In 2025 and each odd numbered year thereafter, the mother shall collect the child from school on the last day of school (or 3.00pm if not at school), following which the child shall spend time with the mother for fourteen (14) days (including the last day of school) and then deliver the child to the father at 1.00pm fourteen (14) days from the last day of school;
(c)The child shall spend the balance of the Christmas holiday time with each parent equally, with the changeover to the other parent being at 1.00pm on the day that is the middle day of that remainder holiday time block;
(d)Notwithstanding any other Order, the parent who is spending Christmas Eve with the child shall deliver the child to the other parent from 11.00am on Christmas Day and the child shall spend time with that parent until 11.00am Boxing Day whereupon he shall be delivered back to the parent who spent Christmas Eve with the child;
(e)Notwithstanding any other Order, the party who is spending New Years Eve with the child shall deliver the child to the other parent on New Years Day at 11.00am and the child shall spend time with that parent until 11.00am on 2 January whereupon that party shall deliver the child back to the parent who spent New Years Eve with the child;
(f)Notwithstanding any other Order, the parent who spent the day before Orthodox Christmas with the child the shall deliver the child to the other parent at 11.00am on Orthodox Christmas day and the child shall spend time with that parent until 11.00am on the day following Orthodox Christmas, and unless otherwise ordered, shall return the child to the parent who spent the day before Orthodox Christmas Day with the child.
Special occasions
11.That commencing in 2025, the child shall spend time with the mother on the weekend of Mother’s Day from after school (or 3.00pm if a non-school day) on the Friday before Mother’s Day until before school (or 9.00am if a non-school day) on Monday.
12.That commencing in 2025, the child shall spend time with the father on the weekend of Father’s Day from after school (or 3.00pm if a non-school day) on the Friday before Father’s Day until before school (or 9.00am if a non-school day) on Monday.
13.That notwithstanding any other Order, the parent who the child is not living with on the child’s birthday shall spend time with the child from 3.00pm until 7.00pm on such day.
Changeover
14.That all changeovers shall occur at the child’s school or outside B Store in Suburb C on a non-school day.
15.That with respect to school holiday arrangements as ordered herein, the parent who has the child’s school uniform shall deliver it to the parent delivering the child to school three (3) days prior to the commencement of school and each parent shall ensure they return the swimming gear to the other parent at the commencement of their respective time.
16.That for the purposes of these Orders:
(a)school holiday periods shall be defined as the school holidays as published by the school that the child attends until he completes grade twelve (12);
(b)the first day of each school holiday period is deemed to commence at the conclusion of school (or 3.00pm if not at school) on the last day of each school term that the students are required to attend school;
(c)the last day of each period is deemed to be the commencement of school (or at 9.00am if the child is not at school that day) on the first day of each school term that the students are required to attend school;
(d)if there is an uneven number of nights in the school holiday period, changeover shall occur at 1.00pm on the afternoon after midnight which is the halfway point; and
(e)at the start of each new school term the living arrangements for the school term shall commence with the parent who did not spend the first weekend of the holiday period with the child having the first week of the school term.
Communication with the child
17.That the child shall communicate with the father by telephone each Sunday and Tuesday that the child is not in the father’s care, at 6.00pm, with such call to be facilitated by the mother.
18.That the child shall communicate with the mother by telephone each Wednesday and Saturday that the child is not in the mother’s care, at 6.00pm with such call to be facilitated by the father.
Extra-curricular activities
19.That whilst the child is in their care the parents they shall each ensure the child attends any sporting or extra-curricular activities as agreed between the parties that are scheduled during periods the child is in their care, including but not limited to sports training and birthday parties.
Communication between the parents
20.That the parents forthwith download and commence using the Application “Our Family Wizard” to communicate with each other, other than in the case of an emergency in which the parents shall communicate by text message.
21.That each parent will immediately notify the other as soon as reasonably practicable in the event of an emergency involving the child, including but not limited to the child attending a hospital when the child is in their care.
22.That each parent shall inform the other parent as soon as is reasonably practicable of:
(a)the full particulars of any doctor, medical practitioner and/or therapeutical health service provider attended upon by the child;
(b)any specialist medical appointment that the child is due to attend and the full particulars of that specialist medical practitioner;
(c)any occasion that the child is scheduled to be hospitalised; and
(d)any medication that has been prescribed to the child that needs to be administered during any periods that the child spends time with the other parent.
23.That each parent shall notify the other within twenty-four (24) hours of any changes to their address, landline or mobile telephone number or email address.
24.That each parent is permitted to liaise directly with any doctor, hospital or other medical practitioners treating the child to obtain information about the physical and/or mental health of the child and the progress of any treatment that the child may be receiving and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports to each of the parents.
25.That the mother and father are permitted to liaise directly with the child’s school to receive information in relation to the child’s progress and any newsletters, reports and order forms for the child’s school photographs.
Restraints
26.That each parent is hereby restrained from the following:
(a)discussing these proceedings with the child or in his presence or hearing, unless required by a Court Order and showing the child documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with the child;
(b)passing messages to the other parent through the child;
(c)physically disciplining the child;
(d)making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent's family or household to the child, or in the presence or hearing of the child, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media; and
(e)without admissions, and pursuant to s 68B of the Family Law Act 1975 (Cth), each parent, their servants and agents be and are restrained by injunction from assaulting, threatening, intimidating or harassing (including via electronic means) the other party
Medical
27.That the parents shall administer any medication prescribed to the child by the child’s medical practitioners.
28.That unless otherwise agreed, the child shall attend upon the psychologist, Ms E with such therapy to be paid by the father and the child shall continue to attend upon same in accordance with any recommendations made.
29.That each parent shall follow and do all thing necessary to give effect to the formal written recommendations of Ms E, Psychologist, or any other counsellor or psychologist upon which the child attends with the consent of both parents.
30.That the parents be granted leave to provide a copy of the family report prepared by Ms D dated 22 August 2023 to any of their treating practitioners or counsellors.
Travel
31.That either parent shall be permitted to take the child outside the Commonwealth of Australia for holiday and the other parent shall not unreasonably withhold consent, and in relation to such travel:
(a)all arrangements are to be subject of discussion prior agreement between the parents;
(b)the occasions on which the child travels outside Australia are to coincide with school holiday periods when the when the child is due to be in the travelling parents care and shall be to a Hague Convention country;
(c)the travelling parent will give the non-travelling parent as much notification as possible of an intention to travel with the child and, in any event, no less than ninety (90) days’ notice;
(d)no less than fourteen (14) days prior to the departure date, the travelling parent will provide the non-travelling parent an accurate itinerary, which is to include:
(i)departure date;
(ii)return date;
(iii)all countries the child will be travelling to, including any stopovers;
(iv)the date the child will arrive and depart from each country;
(v)a telephone number and address at which the child can be contacted in each country; and
(vi)while the child is travelling out of Australia, the travelling parent will ensure the child is available for reasonable telephone contact with the non-travelling parent
32.That the parents shall do all acts and things and sign all documents necessary to obtain and maintain an Australian passport for the child and shall ensure that such passport is renewed and maintained so as to ensure it has six months currency at all times.
33.That when the child is not travelling, the mother shall retain the child’s passport.
34.That the mother shall deliver the passport to the father within twenty-eight (28) days of the father’s intended departure with the child.
35.That the father shall return the passport to the mother within five (5) days of his return to the Commonwealth of Australia with the child.
IT IS NOTED:
A.That Orders 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34 and 35 hereof were made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dirksen & Sobol has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
X, born 2016 (now aged eight years), is the much-loved only child of the Applicant father, Mr Dirksen, and the Respondent mother, Ms Sobol. Although the proceedings before the Court were in respect of both parenting and financial matters, for reasons known to the parties, the financial proceedings will be determined in a trial in February 2025. It was in the best interests of the child that the parenting proceedings be dealt with so that this child could have some certainty as to parenting arrangements affecting him from the beginning of 2025.
COMPETING PROPOSALS
At the commencement of the hearing, consistent with the case outlines and documents filed by the parties, the competing proposals were as follows.
Father
The father sought orders, essentially, that the parties have joint decision-making responsibility for major long-term issues in relation to X, and that the child shall live with the father from Friday after school until commencement of school the following Friday in each alternate week, namely, that there be a week-about arrangement.
Mother
The mother’s primary position in relation to decision-making is that she should have sole responsibility for decision-making in relation to X, but that her alternate position, as articulated in her minute of orders, is that the parties would have joint responsibility other than for the fact that the mother would have sole responsibility in relation to health and education decisions only.
During the course of final submissions, and taking on board discussions between the Bench and the report writer, the mother offered a further order when exercising decision-making responsibility for medical decisions, that being:
(a)the mother must authorise and do all things, sign all documents and give all consent necessary to enable the father to liaise directly with any doctor, to attend appointments solely to speak with any doctor; to provide and obtain information and copies of any medical reports about the physical and/or mental health of the child and the progress of any treatment the child may be receiving;
(b)that the mother be guided by any recommendation made by any treating medical practitioner in relation to the child;
(c)the mother must notify the father of any proposed medical decision by way of email within one week of making the decision; and
(d)that subject to order (c), and in the event that the father does not agree with the doctor’s recommendation, the father can communicate these concerns with the mother in writing and with the doctor.
Although the mother's minute of order had suggested that she ought have sole responsibility for issues relating to the child's school, as I understand the final submissions, that was no longer pressed.
There was no Independent Children’s Lawyer engaged in this matter for the trial. Earlier in the proceedings, an Independent Children’s Lawyer had been appointed by the Court, but that person was discharged by my Order of 14 March 2024 when, during the course of a Case Management Hearing, it became apparent that the issues between the parents did not involve issues of unacceptable risk or other significant forensic inquiry, but rather, as I will indicate further in these Reasons, variations in parenting styles exacerbated by poor communication.
During the course of the cross-examination of report writer, Ms D, and in accordance with authority, the Court identified an alternate proposal to the proposals contended for by the parents.
Proposal by the Court
The Court indicated that it was considering, and the parties were required to also consider and ultimately make submissions upon, a proposal that:
(a)the child would live with the father during the school terms, from the commencement of the 2025 school year from:
(i)after school Thursday to before school Monday each alternate weekend; and
(ii)on the alternate Thursday overnight with changeover again at the child's school,
but would otherwise live with the mother.
The Court further offered as an alternate proposal that commencing from the 2026 school year the time the child would live with the father would be from after school Thursday to before school Tuesday each alternate week – mathematically, five nights a fortnight.
Minute of agreed orders
The context for these continued areas of disagreement is also shaped by the commendable capacity of the parties, in my view, to reach agreement – no doubt, with the assistance of their lawyers, Ms Petrie of Counsel for the mother and Ms Wilson of Counsel for the father (and their instructing experienced solicitors) - on a range of other matters.
The “consent orders” in that regard were marked as Exhibit 20 and are Appendix One to these Reasons. Importantly, the parties agreed and the Court will make as consent orders, orders in relation to:
(a)school holidays;
(b)special occasions time;
(c)Christmas holiday period;
(d)Mother’s Day;
(e)Father’s Day,
(f)the child’s birthday;
(g)changeover;
(h)communication;
(i)extra-curricular activities;
(j)restraints;
(k)maintaining prescribed medication;
(l)attending to a psychologist for therapeutic support; and
(m)arrangements in relation to overseas travel and obtaining a passport.
During the course of the evidence of the parties, and by agreement, the parties also seek the Court to make a consent order that the parties, “forthwith download and commence using OurFamilyWizard to communicate with each other, other than in the case of an emergency”.
The extensive affidavit material containing hundreds of paragraphs and hundreds of pages of annexures, sadly, considering the nature of the dispute, reflected the focus of each parent in seeking to criticise through a range of factual events the other parent.
I challenged both Counsel, obviously knowing the answer, to identify anything in the extensive affidavit material that could be possibly regarded as a concession of anything positive about the other parent. It was not possible to do so, although some concessions were made by the mother when asked in the witness box.
I make this observation so as to make clear that the Court is not required to deal with every fact deposed to in an affidavit or every submission made in either a case outline or oral submissions at the conclusion of a trial. I am satisfied that to do so was likely to not only have lengthened the trial disproportionately, but also would have caused further conflict between the parties, which has been a major factor of concern to the Court in this matter.
In that regard, I appreciate the sensible response by Counsel for the parties, confronted with the material they were asked to cross-examine upon, that they took on board the Court’s suggestion that in circumstances where a Browne v Dunn (1893) 6 R 67 inference would not be drawn, they should identify those facts in dispute which were more likely to helpfully persuade the Court to the position that they were articulating.
STATUTORY PATHWAY
Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in s 60B of the Family Law Act 1975 (Cth) (“the Act”):
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
During my term as a judicial officer, I have navigated the changing landscape for parenting orders from s 68F through s 60CC of the Act, the additional and primary considerations, and now a new regime contained within four sections of a new s 60CC of the Act. The destination, however, has never altered. It is what is in the best interests of the children.
The very expansive s 60CC(2) and (3) which had primary and additional considerations has been very much shortened. I note that the presumption of equal shared parental responsibility no longer applies in parenting cases.
Section 60CC provides that when determining a child’s best interest certain things must be considered:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection (3) does not apply in this care.
BRIEF HISTORY
Noting that the following chronology will not deal with financial matters, which are yet to be determined, but to provide some context to the reasons which follow, the following history is recorded. Statements of fact which follow should be regarded as findings of fact.
The father is 52 years of age and was born in Australia.
The mother is 40 years of age and was born in Country F.
The mother first moved to Australia in 2011 for the purpose of undertaking study. She returned to Country F in 2012 but was persuaded by the father to commence a long-term relationship with her, which caused her to return to Australia.
The parties commenced cohabiting in 2014 in Australia and were married in 2014. As earlier noted, X was born in 2016.
As I deal with in these Reasons, tensions in the relationship between the parties seemed to always be present, but, in particular, the father said that by February 2020 he felt that the mother was restricting his time with X. This is an allegation that the mother denies, she giving evidence that the father, a very hard worker, was often at work (she said, but I found difficult to accept, returning home most nights at midnight after work), and that as the primary carer of the child due to the father’s absence, all she was doing was making arrangements in the best interests of the child.
There is no doubt that an incident occurred on 20 August 2020 that brought the marital relationship to an end.
The mother says, and I accept, however, that the separation occurred under the one roof owned by the father and his brother. Coupled with Covid-19 restrictions, this effectively forced her to continue to reside with the father under the one roof.
Notwithstanding what must have been a very uncomfortable situation for the parents (and the child), the evidence of the father, which is not seriously disputed by the mother and, in fact, in some ways corroborated by her, was that the child, X, who was only four years of age when the incident leading to separation in August 2020 took place, continued to engage with his parents as he had during his journey in life to that date. I was given evidence, which I accept, that many family interactions such as meals and enjoying television and the like continued within the family unit in the same way they had prior to the incident of August 2020.
In or about September 2021, the mother left the family home with the child.
The parties experienced difficulties in reaching agreement as to parenting arrangements after physical separation in September 2021. Whilst the mother did support X spending time with the father, it seemed that nearly all the time that occurred post-separation in September 2021, occurred with the mother also being present. The mother felt that the father did not have the required skills to care for the child without her involvement, a fact disputed by the father.
I should at this stage identify, as I will explain next in these Reasons, that in the father’s household and in the mother’s household, their own mothers were heavily involved and anxious to be involved in the care of X. The dynamic between the paternal grandmother and her son and the maternal grandmother and her daughter is a factor to which Ms D in her report draws attention.
In January 2022, the father commenced parenting proceedings, and on or about 1 March 2022 consent Orders were made that the child would live with the mother and spend alternate weekends and each Wednesday evening with the father. Relevantly, in my view, those Orders made by consent included a number of the restrictions and arrangements which have been maintained to this point in time.
An interesting notation to the Orders made by the Judicial Registrar was that the mother, apparently, at the time sought equal shared parental responsibility, and that the father sought that his time with the child gradually increase. Even at that early stage, the father was noted as seeking orders that the child live with the parents on a week-about basis. No orders in relation to parental responsibility, as the term was then known, were made on 1 March 2022.
As I will refer to more fully below, events between the parties caused the father in early 2023 to be arrested on the basis of an alleged breach of an apprehended violence order.
Exhibit 8 is the apprehended violence order. Exhibit 7 is a “bail acknowledgement” confirmed by the father in early 2023. Because it was a matter that was mentioned often by the father during his cross-examination, I note that the bail conditions included the following specific conditions, namely that the father shall:
(a)“Not to enter [G Street, Suburb C], or not go within 100 metres of that area” this being, as I understood it at the time, the place of residence of the mother and the child;
(b)“Not to go near or contact, or try to go near or contact [Ms Sobol], or any prosecution witness (except through a legal representative)”; and
(c)“Comply with the Apprehended Violence Order”.
It is noted that the bail conditions did not make any reservation that permitted the father to contact the mother in relation to parenting matters in respect of X under the Act.
The father ultimately pled guilty to charges relating to the breaches of the apprehended violence order for which he was arrested in early 2023, at which stage, of course, the bail conditions expired.
By Order of the Court, the parties were required to undertake and submit to a family report. Experienced social worker, Ms D, conducted interviews with and observations of the parties and the child (as well as the grandmothers) between June and August 2023, resulting in a 71‑page single expert report dated 22 August 2023. That report was marked as Exhibit 16. Ms D was the subject of cross-examination.
From the evidence, it is apparent that the arrangements that required changeovers for X to return to the mother after a weekend with the father on a Sunday evening were proving problematic. Both parties gave versions about why that was the case, to again, to their credit, and in a show of sensible compromise in the best interests of the child, on 12 October 2023 (knowing that this is a time when the Court had received the report of Ms D), consent orders were made which included that:
2.The parties shall have equal shared parental responsibility for the child of the marriage, namely [X] born […] 2016 ([X]).
3.[X] shall live with the mother and spend time with the father during the school term as follows:
a.Wednesday after school (or 3.00pm if not at school) until the commencement of school next morning (or 9.00am if not at school);
b.Each alternate weekend from after school (or 3.00pm if not at school) Friday until the commencement of school the following Monday (or 9.00am if not at school).
The evidence indicates that whilst there were difficulties with changeovers on a Sunday, once that order was made; which has been now in effect for over 12 months; with the parties not being required to conduct a changeover on a weekend (but rather the father returning the child to school), no real difficulties have been encountered.
I find that, in fact, for changeovers (at an agreed location) that occurred for school holidays and other special days, no difficulties at changeover have been encountered of any significance.
After the matter was transferred to Division 1, the matter was allocated to me for determination by the Sydney Case Management Judge.
On 14 March 2024, I conducted a Case Management Hearing. That was the day that I discharged the Independent Children’s Lawyer. I was told at the Case Management Hearing that there was a dispute in relation to a diagnosis of the child, and I made a direction for the filing of an affidavit with a view to crystallising that dispute.
On 18 March 2024, an affidavit was filed on behalf of the mother by her solicitor which helpfully attached an early childhood assessment team report dated 23 November 2023, and a further report to X’s general practitioner, Dr H, by developmental paediatrician, Dr K. To supplement those two reports, a more recent report by Dr K was tendered during the proceedings, that report being dated 17 November 2024 marked as Exhibit 2.
As I have indicated, the matter commenced trial on Monday, 18 November 2024 and the trial was completed with final submissions four days later. Much of that time was spent with the parties seeking to negotiate final property orders (which has so far proved unsuccessful), although they were able to agree on orders that related to the interests of a third-party intervener, the father’s brother Mr J, which allowed that litigant to no longer be present for the balance of the trial.
THE FATHER’S HOUSEHOLD
As already indicated, the father is 52 years of age, of Country L heritage although born in Australia. He comes from a close family (save for a brother, from who he is now estranged), in which his mother has a significant paternal influence.
On the evidence, the father is somewhat softly spoken, and at least his presentation in the witness box revealed a passive person, who I assess at times has found it difficult to make decisions. He has worked hard during his life in the building industry. He has been relatively successful financially. He is devoted to his son and says the only way he can maintain a true influence over his development is for there to be an equal time arrangement.
The father has been accused by the mother through her Counsel of showing no insight. I do not agree with that overall assessment, however there were some events which bear mention of which the father should be, and is by this Court, criticised, in particular:
(a)his failure to at times communicate in an effective and timely manner. In making this observation, I accept that there were periods of time where the father was entitled to be properly concerned with bail conditions and an apprehended violence order in place about the potential for contraventions or breaches that could cause significant issues. This would have been very apparent to him when he was arrested in early 2023 and spent a night in jail. There is no evidence of any prior criminal conduct, such that such an event would have been very confronting for him;
(b)the father was cross-examined about a decision made, he says by his brother Mr J, to remove a car from the mother that she used to transport the child, with such removal taking place on Christmas Eve 2022. I am satisfied that the actions taken with the father’s knowledge were highly inappropriate and did not reflect positively upon him. During his cross-examination, it fell from his testimony that one of the factors that he took into consideration was that it appeared the mother had a new boyfriend. The fact that he even tried to justify his actions at that time when the consequence for the mother and the child was that they were required then to engage in use of public transport for a period of some three months, did him little credit; and
(c)there are two occasions in around Easter 2023 when the child in his care had a minor incident (although one was a cut) and the father took the child to a local hospital for treatment. He ought to have known that the mother would be upset if he did not tell her he had taken the child to the hospital, yet he did not tell her. Again, he says he regrets his decision and will do better in the future.
I formed the view, consistent with the evidence, and my impression of the father in the witness box and the expert evidence of Ms D, that the father is an older parent and one who is deeply committed to his child, who has the potential to be somewhat passive in his parenting style.
I am not satisfied that the use by X of “screen-time” in the father’s home is as problematic as the mother would seek to suggest. However, my impression is that the child is able to get liberties in the father’s home that he cannot, nor would he seek to achieve, in the mother’s home. I am not satisfied that any of these “liberties” have had a profound effect on the child at this stage, despite the mother’s concerns, but it could in the future continue to identify the very significant difference in parenting styles, which could create confusion for X.
THE MOTHER'S HOUSEHOLD
As earlier indicated, the mother is some 12 years younger than the father, was born in Country F, but has chosen to live in Australia.
She is a highly educated lady and there is no doubt that she regards education as very important, reflective of her own commitment to education and the fact that she supports the child attending an expensive Sydney private school at a cost of approximately 30,000 per annum. In that regard, the father also supports the child’s attendance at the private school whilst he can afford to do so and he has made payments (he says, with funds borrowed from his brother, Mr J) to maintain the child’s enrolment at the school. The different genders, cultural backgrounds and educational profiles between the parents, all reflect in a very dramatic and different parenting styles.
The mother runs an orderly and tight household supported by her mother who, although not a permanent resident of Australia, spends significant time in Australia with her daughter. Country F language is, it seems, the predominant language in the mother’s home, although the mother is fluent in English and understands that the child attends school where English is the primary language.
My impression was the mother is much more rigid in her parenting, focused on the fact that the rules must be followed and consequences can flow if they are not, and this creates in the mind of the child two examples of parenting between the mother and father that are very different.
As I will indicate later in these Reasons however, I do not regard either parenting style as particularly superior. This child benefits in different ways from the various parenting styles offered to him, styles which are encased in a commitment to his best interests as that parent sees it; love in a household that involves extended family, and where there is a strong cultural connection to both his Country L heritage and his Country F heritage.
THE CHILD
X has been exposed to the deterioration in his parents’ relationship for some years.
My impression is that the mother has asserted a dominance in the parenting arrangements during the relationship, but no real criticism of the mother’s parenting is advanced by the father. Nonetheless, as the intimate adult relationship started to deteriorate, the mother’s insistence that the parenting be undertaken in a manner she regarded as in the child’s best interests, became obvious.
I am satisfied the child has been exposed to the conflict between the parents.
I am not satisfied on the evidence that he has been exposed to the parents’ occasional, perhaps only on one occasion, physical violence.
I am satisfied he is aware of the conflict and, as a sensitive boy, seeks to navigate the very difficult waters between the households.
He has had significant support even before his diagnosis. The school offers a school psychologist.
In cross-examination, the father was taken to some examples from the counsellor’s notes which reflect, at the very least, concerns expressed by the child. On one occasion, without any apparent consequence, it appears the school psychologist felt she had an obligation to report mandatorily what could only be described as low-level child abuse to the Department, being “excessive use of screen time”. I was not taken to any document that reflected any departmental intervention.
I accept that both parents say they observed the child’s behaviour differently in their home. On all the evidence, I am satisfied that the mother was more honest about those behavioural difficulties, but at the same time the child was with her more often. Her household was likely with its rules and requirements, to trigger reactions from the child than the father’s more passive parenting style did not.
Ms Petrie of Counsel, on behalf of the mother, says that the father minimised the problems in his household. I do not find that the child necessarily behaved in exactly the same manner in each household (because of the different parenting styles), but that there was a degree of minimisation by the father and his mother, although, ultimately, the father accepted that the child has at times behaved poorly, even aggressively.
Sadly for this little boy, the parents were so fixated on blaming the other parent for the cause of behavioural problems which were then being demonstrated at school, that the earlier embracing of a diagnosis as made by Dr K was not completely and wholeheartedly accepted by the father.
He says that the diagnosis was made on a report by the mother that was not accurate. I do not accept that. The mother, I accept, gave the version of behaviour in her home accurately. That is not to say, however, that the child would act exactly the same way in the father’s home – the father says he did not. However, there is ample evidence to demonstrate that the child’s behavioural difficulties have now started to manifest in the school yard. He was even suspended on one occasion because of an inappropriate act at a school carnival.
Such behaviour is not entirely associated on the evidence with his now accepted diagnosis. His diagnosis, however, and the fact that it has not been in respect to particularly his ADHD; the subject of medication; has meant that the child has not had, in my view, the level of support that might assist him to regularise his behaviour.
The child has not yet been prescribed medication, but the consent orders both parties agreed to includes a provision, which the father says he will comply with, that both parents will provide to the child the medication as prescribed.
It is a sad reality of these sorts of cases with neuro-diverse children, that often high conflict parents (as this case involved) feel that the child’s behaviour is entirely a reflection of their parenting capacity and attitude and, whilst it can be, it is not always the case. However, as Ms D agreed with, part of the difficulties for this child is that the ongoing conflict between the parents has caused this delightful little boy a degree of anxiety and un-comfortableness that, has been created by the parents not by his condition.
FAMILY REPORT
It is not necessary in these Reasons to deal at length with the family report of Ms D. It has long been the law that a Court (and, therefore, the parents, of course) are not bound by an expert’s opinion in the form of a family report.
In my view, however, significant weight should be given to the report of Ms D. The foundation for her ultimate recommendation is well-established, both in her report and the evidence before the Court explored in cross-examination.
Ms D recommended that X live with the mother and spend five nights per fortnight with the father. She recommended transitioning to block periods of time over a two-year period (noting this report was delivered now over 12 months ago). Considering that at the time of the interviews, Sunday night changeovers were being problematic, it was not surprising that Ms D recommended that transitions take place, when possible, at X’s school. Telephone time was recommended appropriately.
The final recommendation by Ms D was that “each parent access professional consultation regarding various issues raised throughout the evaluation.” This recommendation was directed to the parties taking some responsibility towards their contribution to the conflictual environment created that their son was required to navigate, and seek therapeutic guidance.
I had no evidence probatively before me that indicated that either party had actually taken on the recommendation of Ms D. That is regrettable. That showed, in my view, an inability to look at their contribution to the conflict. Whilst it is noted that the parties have completed courses as earlier directed, such as the Circle of Security, and as this Court will not order that the parties engage in therapeutic counselling, it is hoped that once these final orders are pronounced and put in place, that the parties might (maybe with the comfort of knowing that notes from their psychologist or counsellor may not be the subject of subpoena or production), engage in therapeutic counselling. In the hope that they may do so, the Court intends to make an order that the parties have leave to make that family report of Ms D available to any therapeutic counsellor they engage.
In cross-examination, quite properly directed by Counsel, Ms D was asked to explain various aspects of her report. By way of summary, I note the following comments:
(a)Ms D confirmed that she would be concerned if there was a restriction on the time that the child spent with the father. She felt it was in X’s best interests that he had the experience of each parent and would benefit from the unique qualities each parent offers. She reinforced her view at paragraph 214 of her report that a reduction in time would be a loss for X and contrary to his best interests;
(b)Although she did not recommend and, in my view, was clearly not supportive of an equal time regime, she certainly was supportive of more time being spent between the father and X. She felt that the father had the skills to help him and respond to his emotional state in a different way, but no less importantly than the mother;
(c)Ms D was asked to express a view about the benefits of having joint decision-making in the context of the high conflict which currently exists between the parents and, therefore, poor communication. She made the point, with which I agree, that one of the consequences of removing a parent from an effective role in major issue decision‑making is that that can marginalise that parent and can not only cause that parent to feel marginalised but play a role in the child giving less value to one parent than another in terms of major decisions;
(d)When inquired about the nature of the observations, Ms D identified, when asked by Ms Wilson on behalf of the father, that she did not observe any anxiety between the child and the father, although she was aware of the difficulties at that time of the Sunday changeover. She continued to be complimentary of the father’s skills as demonstrated and observed at paragraph 173 in the report. She did not accept, whilst she understood the mother’s concerns, that more time with the father would have an adverse effect upon X. She strongly opposed, based on her assessment, that the child’s time with the father be reduced to three nights a fortnight;
(e)She acknowledged that children with ASD/ADHD can act quite differently in different homes. She would not consider travel overseas until the child was very settled in a new regime, and that she would be concerned if the child spent significant time away from one of the parents whilst in the care of another parent overseas. She shared a concern about the father’s initial reluctance to embrace the mother’s clear view, supported by Dr K, of X’s diagnosis, but understood why the father was reluctant to accept that diagnosis without further information;
(f)In this regard, it should be noted that the paternal grandmother, more than the maternal grandmother, reflected a lack of acceptance of the diagnosis. She did not accept it likely that the child would act so extremely different in the home of the mother to the father. Ms D was invited to consider what the mother says were comments made by the father to the child before the family report interviews took place, such as the child expressing an intention to report to the family report writer that he wanted to live with the father, that the father gives him everything and that he can, effectively, do whatever he likes in the father’s home;
(g)When these comments were put to Ms D, she observed that they were not repeated to her in the same way during the interviews and observations. While she was satisfied that the child had a genuine desire to spend more time with the father, she felt comments that were made by X to the mother, if accurate (and I am prepared to accept that the mother has accurately indicated what the child may have said to her), is probably more reflective of his awareness of the different outcomes his parents want from the litigation. She certainly felt that the child was aware of the conflict, and I agree that is likely to be the case;
(h)The issue of screen time had a significance, in my view, as reflecting a very different parenting style. I am not satisfied on the evidence that the father permits the child regularly to observe inappropriate content or allows the child at this age to sit up regularly to midnight to access a screen. I think it is likely that he has more screen time in the father’s home than in the mother’s home. Ms D explained about the effect on young children of excessive screen time mostly in the deprivation of sleep. I see no evidence or corroboration from the school records that have been produced in the Court to reflect that the child is showing sleep deprivation; and
(i)Ms D was of the view that the current arrangements, having six changeovers a fortnight, are too frequent. In the final analysis, after a significant amount of cross-examination by Counsel for the mother that were appropriately directed to areas of concern about the father’s parenting, Ms D said that the regime of five nights a fortnight in a configuration explained to her by the Court would meet the child’s needs. Overall, she continued to emphasise the necessity for the parents to take some responsibility for the conflict which has been created in their son’s life to which both are contributors. I agree that that is a significant factor in this case and that, unless the parties are able to adjust their behaviour, the way they explain their position to their child, all of which might be assisted by therapeutic support, then medication and attention by health professionals and paediatricians will not overcome some of the stressors this little boy has to endure.
OTHER FINDINGS
I rely upon but do not repeat my earlier findings.
With an eye to the pathway identified in s 60CC of the Act, I make the following further findings on the evidence of relevance.
The proposals of the parties reflect that neither party asserts that this child is at an unacceptable risk of harm emotionally, physically or as a result of parental deficits. This is a case which, thankfully, did not involve evidence or suggestions of drug use, excessive alcohol use, diagnosed parental mental health challenges and, to the extent which I will deal with next, family violence. At least since physical separation, there have been few events of family violence between the parties and none to which I can find the child has been exposed.
There is no doubt that the amended legislative pathway puts an emphasis upon arrangements which would promote the safety (including safety from family violence, abuse, neglect or other harm) of a child or each person who has the care of the child. I do not find that the child is at risk of being subject to abuse, neglect or other harm in the home of either parent. I accept that parenting styles have an emphasis which from the other person’s perspective might suggest harm, through lack of attention to an important factor, or are likely to induce confusion in the child.
There has been family violence between the parents as defined by the Act. Ms Wilson of Counsel on behalf of the father in cross-examination drew to the mother’s attention the disparity in what she indicated at the commencement proceedings and in her Notice of Risk with what she says now. There can be many explanations why different affidavits at different times give more or less detail of events. I do not regard the mother as an unreliable witness. I am not satisfied, however, that every event of abuse towards her by the father is made out on the evidence. Certainly, they are all denied by the father. However, the basis for the apprehended violence order, the fact that he was charged and dealt with by the Courts, make it clear that the father has perpetrated family violence in the past upon the mother.
I am not satisfied, however, that the nature of those events and the passage of time that has passed since those events occurred, and couple with the lack of evidence of conflict of that nature since the parents have been physically separated, create an unsafe environment for the child in the father’s home.
I do accept those events have exacerbated the capacity of these parties to trust each other, and in the mother’s case, to be confident that the father has changed, as that is not her lived experience. This has made the communication between the parties difficult, ineffective and at times has created conflict, frustration and anger. The mother embraced the opportunity to engage in email communications through a well-known site. My view is that she wants to communicate with the father but needs to do so safely and would like him to respond more quickly.
The father’s capacity to communicate also could be significantly improved by him understanding that the mother’s legitimate desire to parent in a certain way is not, as he seems to perceive it, an attack upon him, his mother, or his culture.
The child is of an age where any views expressed by the child would have to be given limited weight. Thankfully, however, for this child he wants a good, consistent relationship with both of his parents. He is not making negative comments about the other parent. He is not expressing a view about not really having a relationship with that parent, notwithstanding the occasional comment made in anger. I think this child feels loved in both households and each grandparent in that household adds to that sense of love.
The Court is required to take into account the developmental, psychological, emotional and cultural needs of the child. This child is a child of mixed heritage, Country L and Country F. My impression from all the evidence is that in each household the heritage is demonstrated, lived, reflected in meals and other cultural aspects. It is important for him. Neither parent gave me the impression they did not respect the importance of the other person's cultural background. I have already indicated that these parents supporting the child with the diagnosis (including medication) is paramount. I accept there have been difficulties in the past. I do not on the evidence accept the mother's view that the father cannot do better. I believe he can and, on balance, believe he will do better.
Ms D identified that each party has the capacity to provide for the child’s developmental, psychological, emotional, and cultural needs. I accept that assessment. I also accept that it is in the child’s best interests to have a relationship not only with each parent, but with the significant extended family that form part of the respective households.
One of the issues which I raised during submissions is the effect of change from the current arrangements. This child’s lived experience is, of course, being predominantly in the care of the mother. That was his experience when the parties were an intact couple and has been the experience since both separation under the one roof and then physical separation.
However, as the child has got older, he has embraced having more opportunity to spend time with the father. The fact that the parties agree for extensive and equal holiday time reveals, in my view, the importance that each party has acknowledged about the child's opportunity to spend time with the party for recreational and holiday time. In time, that will probably manifest in overseas holidays where they can explore in the country of their grandparents’ origin, safely, it is to be hoped, aspects of that culture.
It would be a significant change, in my view, for this child to move from the current arrangements to an equal time regime. It would not, in my view, be a significant change for this child to increase time in the way that the Court proposed as an alternative. I am strongly of the view that a reduction in time as the mother proposes as her primary position would be contrary to the best interests of the child.
PARENTAL RESPONSIBILITY AND DECISION-MAKING
The father and mother will each be spending substantial and significant time with the child. Through their parenting of the child, they will gain an impression of, and hopefully understand the nuances of, his development. These issues are important when making the few major long‑term decisions that the Act is directed to. Too often, parties in this type of litigation forget that there are day to day decisions which each parent should properly be entitled to make. They operate within a range. It is not possible to duplicate in the mother’s home the parenting style of the father, or in the father’s home the parenting style of the mother.
In my view, however, each parent should take up the responsibilities of parenting and not be seen to abdicate those responsibilities; however well-intentioned, to their respective mothers. There is no doubt in the history of this matter that the intervention at times by the father’s mother did create significant conflict in the household and caused, sadly, in many ways not only a reduction in time between the child and the father and the paternal grandparents but has also caused some pain to be carried into the post-separation relationship.
I am satisfied it is in the best interests of the child that the parents exercise jointly decision‑making for major long-term issues. Making orders sought by the mother would, in my view, marginalise the father in a way which would not be in the child’s best interests. It cannot be the answer to a relationship shaped by conflict that one person must have control. In this case, both parents are able to do better, in my view, and should seek to do so. Again, I remind them of the importance of getting some therapeutic support which might help them make sense of where they have got to the position they are now.
If they do not do so, then this child who is the focus of so much attention and love of both the mother, father, and the extended families in each household, will almost be unable to resist the temptation to play one parent off against the other, and ultimately as he approaches adolescence, to perhaps align with the parent who he sees as more passive. That would not be in his best interests. Both of these parents have much to offer this child. They should be involved in his joint, major, long-term decisions.
TIME
I am satisfied that it is the child’s best interests that the child does not have a reduction in time with the father as proposed by the mother. I agree with Ms D this would be a loss for the child and one which in his current state of development could be significantly compromising to his potential.
Furthermore, I am not satisfied that the divergence in parenting styles and the poor communication which exists at the moment could support an equal time regime. In my view, this child will benefit from having more time with one parent than the other and that parent should be the mother.
For these reasons, I make the orders which appear in relation to time at the commencement of these Reasons in respect of the proposal offered by the Court during the course of the cross‑examination of Ms D.
In that regard, I do not accept, on the evidence, as Ms Wilson identified, that time should be extended into one block of six nights. Each parent should be supporting the other parent’s parenting. In that regard, it may well be in the passage of time with better communication and a more insightful attitude to the benefits of the style of parenting the other parent offers that some flexibility can be agreed to, as the orders I make will permit.
Accordingly, the orders that are made will provide that the regime prescribed by the Court in relation to time can be varied by parental consent, combined with the orders which are agreed to (in Appendix One) and the orders which appear at the commencement of these Reasons are in the best interests of X at this time.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 December 2024
APPENDIX ONE
School Holidays
1.For Terms 1, 2 and 3 school holiday periods, X shall spend the first half of school holiday periods with the mother from after school at the commencement of the school holiday period (or 3.00pm if not at school) with the changeover for X to the father to be 6:00pm at the halfway day through the school holiday period and the father shall, thereafter, deliver X back to school at the end of the school holiday period (or 9.00am if not at school).
Special Occasion time
Orthodox Easter2.That if Orthodox Easter and Catholic Easter does not fall during a school holiday period, then X shall spend time with each party as follows:
(a)The mother shall collect X from school on the last day of school and deliver him to the father’s premises at 1.00pm on Easter Sunday; and
(b)X shall spend time with the father from 1.00pm on Easter Sunday until the commencement of school the following Tuesday (or 9.00am if not at school).
(c)For Orthodox Easter, when Monday is not a public holiday, X shall spend time with the father from 1.00pm Easter Sunday until the commencement of school, the following Monday (9.00am if not at school).
Christmas
3.That during the Christmas school holiday period X shall spend time with each party as follows:
(a)In 2025 and each odd numbered year thereafter, the mother shall collect X from school on the last day of school (or 3.00pm if not at school) and X shall spend time with the mother for 14 days (including the last day of school) and shall deliver him to the father at 1.00pm 14 days from the last day of school.
(b)In 2024 and each even numbered year thereafter, the father shall collect X from school on the last day of school (or 3.00pm if not at school) and X shall spend time with the father for 14 days (including the last day of school) and shall deliver him to the mother at 1.00pm 14 days from the last day of school.
(c)X shall spend the balance of the Christmas holiday time with each party equally, with the changeover to the other party being at 1:00pm on the day that is the middle day of that remainder holiday time block.
(d)Notwithstanding any other Order, the party who is spending Christmas Eve with X shall deliver X to the other party from 11.00am on Christmas Day and X shall spend time with that party until 11.00am Boxing Day whereupon he shall be delivered back to the party who spent Christmas Eve with X.
(e)Notwithstanding any other Order, the party who is spending New Year's Eve with X shall deliver X to the other party on New Year's Day at 11.00am and X shall spend time with that party until 11.00am on 2 January whereupon that party shall deliver X back to the party who spent New Year's Eve with X.
(f)Notwithstanding any other Order, the party who spent the day before Orthodox Christmas with X shall deliver X to the other party at 11.00am on Orthodox Christmas day and X shall spend time with that party until 11.00am on the day following Orthodox Christmas and unless otherwise retaining X in accordance with Order 9(a), (b) or (c), shall return X to the party who spent the day before Orthodox Christmas Day with X.
Mother's Day & Father's Day & Child's Birthday
4.That:
(a)Commencing 2025, X shall spend time with the mother on the weekend of Mother's Day from after school or 3:00pm on the Friday before Mother's Day until the drop off at school Monday morning (or 9.00am if not at school).
(b)Commencing 2025 X shall spend time with the father on the weekend of Father's Day from after school or 3:00pm on the Friday before Father's Day until the drop off at school Monday morning (or 9.00am if not at school).
5.That notwithstanding any other Order, the parent who is not spending time with X on his birthday shall spend time with him from 3.00pm to 7.00pm on X's birthday and unless otherwise agreed such changeover shall take place at B Store, Suburb C or collect X from school at 3.00pm (if in school).
Changeover
6.That changeovers, if not at school shall occur outside B Store in Suburb C.
7.That with respect to Orders 1 to 5 above the party who has X’s school uniform shall deliver it to the party delivering X to school 3 days prior to the commencement of school and each party shall ensure they return the swimming gear to the other parent at the commencement of their time.
8.That for the purposes of these orders:
(a)School holiday periods shall be defined as the school holidays as published by the school that X attends until he completes Year 12;
(b)The first day of each school holiday period is deemed to commence at the conclusion of school (or 3.00pm if not at school) on the last day of each school term that the students are required to attend school;
(c)The last day of each period is deemed to be the commencement of school (or at 9.00am if the child is not at school that day) on the first day of each school term that the students are required to attend school;
(d)If there is an uneven number of nights in the school holiday period, changeover shall occur at 1.00pm on the afternoon after midnight which is the halfway point; and
(e)At the start of each new school term the living arrangements for the school term shall commence with the party who did not spend the first weekend of the holiday period with X having the first week of the school term
Communication
9.The mother shall facilitate X telephoning the father each Sunday and Tuesday at 6pm when X is in her care.
10.The father shall facilitate a telephone call between the mother and the child each Wednesday at 6.00pm and Saturday at 6.00pm while X is in his care.
11.Each parent will immediately notify the other as soon as reasonably practicable in the event of an emergency involving the child including but not limited to the child attending a hospital when the child is in their care.
12.That each party shall inform the other party as soon as is reasonably practicable of:
(a)The full particulars of any doctor, medical practitioner and/or therapeutical health service provider attended upon by the child;
(b)Any specialist medical appointment that the child is due to attend and the full particulars of that specialist medical practitioner;
(c)Any occasion that the child is scheduled to be hospitalised; and
(d)Any medication that has been prescribed to the child that needs to be administered during any periods that the child spends time with the other party.
13.Each party is permitted to liaise directly with any doctor, hospital or other medical practitioners treating the child to obtain information about the physical and/or mental health of the child and the progress of any treatment that the child may be receiving and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports to each of the parties.
14.That the mother and father are permitted to liaise directly with the child's school to receive information in relation to the child's progress and any newsletters, reports and order forms for the child's school photographs.
Extra-curricular activities
15.That, whilst X is in the care of the father or the mother, they shall each ensure that X attends any sporting or extra-curricular activities as agreed between the parties that are scheduled during periods when he is in their care, including but not limited to sports training and birthday parties.
Restraints
16.Each party is hereby restrained from the following:
(a)Discussing these proceedings with X or in his presence or hearing, unless required by a Court Order and showing X documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with them.
(b)Passing messages to the other parent through X.
(c)Physically disciplining X.
(d)Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent's family or household to X, or in the presence or hearing of X, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.
(e)Without admissions, and pursuant to Section 68B of the Family Law Act 1975, each party, their servants and agents be and are restrained by injunction from assaulting, threatening, intimidating or harassing (including via electronic means) the other party
Medication
17.That the parties administer any medication prescribed to the child by the child's medical practitioners.
Psychologist
18.That unless otherwise agreed, X shall attend upon the Psychologist, Ms E, with such therapy to be paid by the father and X shall continue to attend upon same in accordance with any recommendations made.
19.Each party shall follow and do all thing necessary to give effect to the formal written recommendations of the Ms E, Psychologist, or any other Counsellor or Psychologist upon which X attends with the consent of both parties.
Contact Details
20.That each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.
Passport
21.Either party shall be permitted to take the child outside the Commonwealth of Australia for holiday and the other parent shall not unreasonably withhold consent and, in relation to such travel:
(a)All arrangements are to be subject of discussion prior agreement between the parties;
(b)The occasions on which the child travels outside Australia are to coincide with school holiday periods when the when the child is due to be in the travelling parent's care and shall be to a Hague Convention country;
(c)The travelling parent will give the non-travelling parent as much notification as possible of an intention to travel with the child and, in any event, no less than 90 days' notice;
(d)No less than 14 days prior to the departure date, the travelling parent will provide the non-travelling parent an accurate itinerary, which is to include:
(i)Departure date
(ii)Return date
(iii)All countries the child will be travelling to, including any stopovers;
(iv)The date the child will arrive and depart from each country;
(v)A telephone number and address at which the child can be contacted in each country;
(vi)While the child is travelling out of Australia, the travelling parent will ensure the child is available for reasonable telephone contact with the non-travelling parent
22.That the parties shall do all acts and things and sign all documents necessary to obtain and maintain an Australian Passport for the child and shall ensure that such Passport is renewed and maintained so as to ensure it has six months currency at all times.
23.The mother shall retain the child's Passport.
24.The mother shall deliver the passport to the father within 28 days of the father's intended departure with the child.
25.That the father shall return the Passport to the mother within five days of his return to the Commonwealth of Australia with the child.
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