Ewer and Barnard
[2012] FMCAfam 856
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EWER & BARNARD | [2012] FMCAfam 856 |
| FAMILY LAW – Parenting – relocation – high conflict. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS EWER |
| Respondent: | MR BARNARD |
| File Number: | SYC 6497 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 9-11 May 2012 and 28-29 June 2012 |
| Date of Last Submission: | 29 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Levy |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Mr B. Geddes QC |
| Solicitors for the Respondent: | Lander & Rogers Lawyers |
| Advocate for the Independent Children’s Lawyer: | Ms A. Harland |
| Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
That all previous parenting orders be discharged, save to the extent contemplated by Order 6 below.
That the mother and the father have equal shared parental responsibility for the children [S] born [in] 1999 and [C] born [in] 2001 (“the children”).
That each parent has responsibility for decisions as to the children’s day to day care, welfare and development during periods when they children are in their respective care.
That the children live with the mother.
That the children be permitted to permanently relocate with the mother to live in Tasmania at the end of the 2012 school year.
That pending the mother and the children's relocation to Tasmania, the father shall spend time with the children in accordance with the current parenting Orders.
That the children spend time with the father as follows:
(a)From 10.00 a.m. on 24 December 2012 to 6.00 p.m. on 7 January 2013 and for the same period each alternate year thereafter;
(b)From 10.00 a.m. on 26 December 2013 to 6.00 p.m. on 9 January 2014 and for the same period each alternate year thereafter;
(c)For the Easter period each year from after school on the Thursday preceding Good Friday to 7.00 p.m. on Easter Monday (or 7.00 p.m. on Easter Tuesday if that day is not a school day);
(d)For the whole of the second term school holidays each year from after school on the last day of second term until 6.00 p.m. on the last day of such holidays;
(e)For up to three further weekends each school term from after school Friday to the start of school on Monday (or Sunday evening at the father’s option) as may be nominated by the father in writing prior to the commencement of each school term or as may be otherwise agreed between the parties;
(f)On any other occasion the father visits Tasmania for up to 48 hours, with such time to be spent in Tasmania unless otherwise agreed;
(g)At such further or other times as may be mutually agreed.
That for the purposes of Order 7:
(a)The father be permitted to spend any long summer holidays, second term holidays or Easter periods with the children anywhere in Australia and/or overseas;
(b)If either party is travelling overseas with the children, they shall provide the other with a flight itinerary and a contact mobile number at all locations at which the children will be living not less than two weeks prior to the day of departure;
(c)Except for one weekend during each school term that must be located in Tasmania, the father shall be permitted to spend school term weekends with the children anywhere in Australia;
(d)The father shall provide the mother with not less than seven (7) days’ prior written notice of any intention to spend time with the children pursuant to Order 7;
(e)To facilitate all interstate and overseas time spent by the father with the children:
(i)The mother shall deliver the children to Launceston Airport at the commencement of such times and collect them therefrom at its conclusion;
(ii)The mother shall do all things required to permit and authorise the children to travel as unaccompanied minors, with the father, his wife Ms B or any other adult with whom the children are familiar to collect the children at their point of arrival and deliver the children to their point of departure.
(f)To facilitate time spent by the father with the children in Tasmania the mother shall make the children available for collection by the father from her residence at the commencement of such times and the father shall return the children to the mother's residence at its conclusion unless otherwise agreed.
That each party permit and encourage the children to communicate with the other parent at all reasonable times including occasions upon which each child may wish to do so and facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and Skype.
That the parties each:
(a)Notify the other as soon as practicable and in any event within 24 hours of any serious illness or injury suffered by the children whilst in the care of that party;
(b)Notify the other of any change in their telephone number and/or residential address within seven (7) days of such change;
(c)Notify the other of the name, address and telephone number of each health professional consulted by the children and provide all authorities and directions necessary for those health professionals to provide to each party all information and material held by such professionals in relation to the children.
That the children each be permitted to travel overseas with either parent during any period of long summer or school term holidays or Easter holidays with that parent and each party shall in a timely fashion do all things and sign all documents and give all necessary further consents to facilitate such travel including their consent to the issuing of a current passport for each child.
That at least 21 days prior to relocating to Tasmania pursuant to these Orders, the mother provide the father with full written particulars and evidence of:
(a)Her residential address;
(b)Her residential and mobile telephone numbers;
(c)Her email address;
(d)The availability of operative webcam and/or Skype facilities for the purposes of communication with the father pursuant to Order 9.
In the event that the mother nominates a weekend no more than once per month for the months of February to November inclusive each calendar year in which she proposes that the children will remain living with her, and provided she gives to the father notice of these weekends before he has nominated weekends pursuant to Order 7, then the father shall not nominate that weekend pursuant to Order 7 and it is noted that the mother will not nominate weekends when the Friday or Monday are public holidays.
That the father pay the cost of all airline travel of the children of or incidental to the father spending time with the children pursuant to these Orders.
That the father notify the mother of the flight itinerary, address, mobile and landline telephone number/s of the place/s where the children will be staying during school holidays spent away from his primary residence in Australia, not later than 72 hours prior to the commencement of any holiday period.
That the mother notify the father of the flight itinerary, address, mobile and landline telephone number/s of the place/s where the children will be staying during school holidays spent away from her residence in Australia, not later than 72 hours prior to the commencement of any holiday period.
Each parent be allowed to travel overseas with the children for holidays away from their country of residence subject to:
(a)Providing written notice to the other party no less than 42 days in advance of the departure date;
(b)Notifying the other party of the flight itinerary, address, mobile and landline telephone number/s of the place/s where the children will be staying during holidays, not later than 21 days prior to the departure date; and
(c)The children being accompanied on international flights by a parent or person familiar to the children (including the father’s wife, Ms B), until the youngest child, [C], is 12 years old.
That each party be restrained from removing the children from the Commonwealth of Australia, except as provided for in these Orders, without the prior written agreement of the other party or further Order of this Court.
That each party shall do all things necessary to set up and maintain a computer to enable the children to communicate with the other parent by way of Skype.
That the children attend [S] School in Launceston unless otherwise agreed by the parties in writing and the father pay the cost of and incidental to the attendance of the children at [S] School including, but not limited to, tuition fees, uniforms, sports uniforms, text books and school related extra curricular activities including domestic excursions.
If the parents are unable to reach agreement with the Independent Children’s Lawyer or the Legal Aid Commission of NSW about costs within 28 days, the Independent Children’s Lawyer has liberty to restore before Federal Magistrate Altobelli on seven (7) days notice.
IN THE EVENT THAT THE FATHER LIVES OVERSEAS AND THE MOTHER AND CHILDREN LIVE IN AUSTRALIA THE FOLLOWING ORDERS APPLY TO THE FATHER’S TIME AND COMMUNICATION WITH THE CHILDREN:
The children spend time with the father as follows:
(a)For one half of the summer school holidays each year at times to be agreed between the parties and to include Christmas Day each alternate year and in default of agreement:
(i)In even numbered years, for the first half of such holidays; and
(ii)In odd numbered years, for the second half of such holidays.
(b)For the purposes of calculating one half of the summer school holidays, such holidays shall be deemed to commence at 6.00pm on the last day of school and end at 8.00am on the first day of the new school year;
(c)For the whole of the first term and third term school holidays each year from after school on the last day of each term until 6.00pm on the last day of such holidays;
(d)On any occasion the father visits the city in which the children reside for up to 48 hours;
(e)On any occasion the father visits Australia but not the city in which the children reside, for up to 96 hours with the father to be at liberty to arrange at his expense (and the mother to facilitate) transportation for the children from their city of residence to the father and their return thereafter;
(f)For the purposes of subparagraphs (d) and (e), the father shall give the mother not less than 14 days notice of his intention to spend time with the children and, where required, provide full particulars of proposed transportation;
(g)At such further or other times as may be mutually agreed.
For the purposes of Order 22:
(a)The father be permitted to spend any holidays with the children anywhere in Australia and/or overseas;
(b)If either party is travelling overseas with the children, they shall provide the other with a flight itinerary and a contact mobile number at all locations at which the children will be living not less than two (2) weeks prior to the day of departure;
(c)To facilitate all interstate and overseas time spent by the father with the children:
(i)That unless otherwise agreed, the mother shall deliver the children to the Airport nearest their city of residence at the commencement of such times and collect them therefrom at the conclusion;
(ii)The mother shall do all things required to permit and authorise the children to travel as unaccompanied minors, with the father, his wife Ms B or any other adult with whom the children are familiar to collect the children at their point of arrival and deliver the children to their point of departure.
(d)To facilitate time spent by the father with the children in their city of residence, the mother shall make the children available for collection by the father from her residence at the commencement of such times and the father shall return the children to the mother’s residence at its conclusion unless otherwise agreed.
Each party permit and encourage the children to communicate with the other parent at all reasonable times including occasions upon which each child may wish to do so and facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and Skype.
IT IS NOTED that publication of this judgment under the pseudonym Ewer & Barnard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6497 of 2009
| MS EWER |
Applicant
And
| MR BARNARD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about where two children should live, and what time they should spend with each parent. [S] (known as [S]) was born on [in] 1999 and will be almost 13 by the time these reasons for judgment are published. [C] was born [in] 2001 and is 11 years old. The applicant is their father. He is 48 years old, describes himself as a [occupation omitted], and lives in a Sydney [omitted] suburb. The respondent is their mother. She is 44 years old, describes herself as a [occupation omitted], and lives with the boys in an inner Sydney suburb. In short, the mother would like to relocate with the boys to Tasmania. The father opposes this, and would like to spend more time with the boys in Sydney.
Background
The father was born in Melbourne, and the mother in Launceston, Tasmania. They commenced cohabitation in Sydney in 1996, married in Melbourne in 1997, and then lived in Singapore between August 2001 and October 2003. The relocation in Singapore was for the father’s work purposes. [S] was about 2, and [C] 1 when they moved to Singapore. Separation occurred on 8 October 2003 when the mother and the boys returned to Sydney. At the time the boys were 4 and 2 respectively. The father remained in Singapore until August 2006 when he returned to Sydney. By this time the boys were 7 and 6 respectively. Whilst in Singapore the father met his current partner Ms B, and they have cohabited in Sydney since then. Proceedings between the parents commenced shortly after separation, in October 2003. In April 2005 final property and spouse maintenance orders were made by consent, together with parenting orders providing for the children to live with the mother, and spend time with the father in Singapore. Contact continued on his return from Singapore.
In 2009 the father obtained a position with a [workplace omitted] in Japan. Shortly thereafter the mother initiated the present proceedings for parenting orders and child maintenance. The father moved to Japan with Ms B, and the children spent time with him.
In January 2010 the parents attended on a Family Consultant who prepared a Children and Parents Issues Assessment. This document, dated 26 March 2010, prepared by Ms T, was in evidence. I do not refer to it in any depth in these my reasons but that is only because I had the benefit of two very detailed Part 15 Expert’s reports prepared by Dr L.
The father returned from Japan to Sydney in June 2010, and he says that this was a decision influenced by the report prepared by Ms T.
In August 2011 the parents entered into consent orders which increased the father’s time with the children.
History of parenting orders
On 19 March 2004 parents agreed to consent orders on an interim basis for the children to live with the mother and have contact with the father for specified periods in both Singapore and Australia. These orders also provided for telephone contact, and for the father to pay the cost of the children’s airfares.
On 26 April 2005 there were final parenting consent orders again providing for the children to live with their mother and to have contact with their father whether he reside in Australia or outside of Australia. These orders provided that if the father was residing in the same metropolitan area as where the children reside, he was to have contact each alternate weekend from 5.00pm Friday to 9.00am Monday, half of each school holiday period, as well as telephone contact.
On 9 May 2011 the parents entered into consent orders which, amongst other things, restrained them from discussing the proceedings with the children.
On 11 May 2011 orders were made relating to the father’s contact with the children in the context of the interviews conducted by Dr L for his report.
On 10 August 2011 the parents agreed to extend the father’s contact with the boys so that it commenced after school on each alternate Friday, and concluded at the commencement of school the following Tuesday. I understood this to be the current contact arrangement, during the school term, operative at the time of the final hearing before me.
Competing proposals
The father’s proposal was contained in his Case Outline document filed on his behalf 8 May 2012 which I will describe as follows. He proposed equal shared parental responsibility, and that the children live with him each alternate Friday from after school to before school the following Wednesday, and half of their school holidays. He proposed that [S] continue to attend [A] School school for his secondary education, and that [C] complete his primary education at [R] Public School, and then attend [N] for his secondary education. The father proposed to pay all tuition fees and other expenses associated with the children’s education. He proposed that the children live with the mother at all other times.
The father quite properly submitted an alternative proposal in the event that the court found it in the best interests of the boys for them to relocate to Tasmania with their mother. This alternative proposal involved the children living with him during the school holidays, and for up to three weekends each school term. He also proposed communication by telephone, in writing and by Skype.
At the court’s request the father also formulated a proposal to cover the scenario where he was living overseas, but the mother and children lived in Australia. Mindful of the history of litigation between these parents, I was keen to cover as many contingencies as reasonably possible. The evidence I heard certainly did not rule out the possibility that the father would once again work overseas. In any event, in this scenario he proposed equal shared parental responsibility, that the boys live with him for half of the summer holidays, and the whole of the first and third term school holidays, together with occasions when the father was in Australia. The children would otherwise live with the mother. He also proposed communication by telephone, Skype, etc.
The mother’s proposal at final hearing is set out in her Second Further Amended Application filed 5 April 2012. She proposes orders that enables her to relocate to Tasmania permanently with the children and thus live with her there. She proposes the father spend time with the children for half of the Terms 1 and 3 school holidays, for half of the summer holidays, and all of the Term 2 holidays. She also proposed contact two weekends each school term, and on occasions when the father was in Tasmania. She proposed that the children attend [S] School in Launceston at the father’s expense. Should the father not be living in Australia, the mother’s proposals for contact were similar to that described above.
The Independent Children’s Lawyer’s proposal was that there be equal shared parental responsibility, that the children live with the mother and that relocation to Tasmania be permitted at the end of the 2012 school year. Until then the existing parenting orders would continue. After relocation the father spend time with the children on two weekends each school term, and one further weekend if he intends to spend time with them in Tasmania. In addition the Independent Children’s Lawyer proposes contact for all of the mid-year school holidays and half of the summer holidays. Communication would be by email, telephone and Skype. The Independent Children’s Lawyer’s proposal expressly contemplates that the father’s weekend contact could occur in Melbourne.
I have only described the competing proposals above. The precise Minutes of Orders sought are replicated in the schedule to these reasons.
Representation and the hearing
The father was represented by his Senior Counsel, Mr Geddes QC, the mother by her Counsel Mr Levy, and the children by their advocate
Ms Harland. The evidence proceeded over five days on 9-11 May, and 28-29 June 2012. Dr L was the court appointed expert. His two reports dated 26 June 2011 and 2 May 2012 were in evidence. Dr L was extensively cross-examined.
The other evidence in this case consisted of affidavits of the father, his partner Ms B, the mother, her sister Ms H, and Ms P and Mr O. All but the last deponents were required to, and gave evidence. Documents were tendered in the cases of both parents.
There was an issue during the hearing about whether the father would meet the cost of the boys’ education if relocation were permitted. At the close of the evidence he conceded, however, that he would meet these costs. That was an entirely appropriate concession to make. Orders will be made to reflect this.
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Evidence of Dr L
Dr L was appointed as the Part 15 Expert in this case. He provided two reports, dated 26 June 2011 and 2 May 2012. The two reports are significant for many reasons, but perhaps the most significant is that these reports track changes in relationships over a relatively short period of time. The first report is based on interviews in June 2011, the second based on interviews held in April 2012. Dr L had the opportunity to interview the parents, the children, and the father’s partner Ms B.
The formulation in the first report commences at paragraph 127. He notes that the undercurrent to the issue of the children maintaining their relationship with the father is the hostile interaction between the parents. He notes that whilst each is capable of cooperation and oral communication, the legacy of the past is that in practise conflict is the norm. Dr L’s observation in this regard is entirely consistent with my own: the parents’ relationship is conflictual, there is little trust between them, and communication is fraught with difficulty. The court shares Dr L’ concern that ongoing conflict between the parents “is highly likely” (para.128). He describes the mother as depressed and overburdened at times, though with no significant psychological instability (para.129). He described the father as “somewhat absorbed in pursuing his career but does have a genuine love and a genuine desire to maintain contact with his children…(but)…appears to be a somewhat distant father as far as the children are concerned” (para.130). Dr L observes at para.131 that the children’s social lives in the homes of their parents are very different, and they enjoy much stronger external relationships at their mother’s home.
At paragraphs 133 and 134 he sets out his views about the relocation issue.
133. To my mind I think the children’s interest would be served by retaining the primary relationship with their mother and they are certainly very comfortable and close in their relationship. As to whether the mother should be given leave to go to Tasmania, this is matter I am unable to be clear on. However, if that were to occur I do not think it would cause significant disturbance to the boys, and be to their liking, especially [S]’s. It will, however, lead to some reduction in contact with their father but would not extinguish that relationship. As a corollary, if the mother does not go to Tasmania her sense of frustration and isolation will increase and this will likely have a negative impact on her quality of life. It is not, I think, necessarily the case that she will become depressed such that she will fail to care for the children, but her parenting will be strained as a result and her mood will likely deteriorate. There is a risk the children will blame the father for the mother’s unhappiness should that eventuate.
134. Should the children go to Tasmania I think a reasonable level of contact could be provided and both parents are capable of contributing to the transport costs for the children so as to maintain good levels of contact with their father despite living in Tasmania. Obviously there will be some truncation of the fortnightly contact that is currently occurring. Whilst some compensation for time might occur through additional time on holidays and taking advantage of things like long weekends, it would be a mistake to organise for the children to spend all of their holiday time with their father. They will need to have roots and relationships and extra curricula activities where they are living if they go to Tasmania. Inevitably, should the children go to Tasmania, as a result of the truncation of contact Mr Barnard will experience a diminution in his role as father and his dissatisfaction is likely to fuel further conflict with Ms Ewer. In addition, the children will continue to have a secondary relationship (albeit still a reasonably strong one) with their father.
It should be noted that Dr L was not necessarily suggesting that the mother be permitted to relocate.
He then considers the situation if the children remain in Sydney, having regard to the father’s proposal for more time. At paragraphs 135-138 he states:
135. The critical issue that arises if the mother remains in Sydney is whether the children should have equal time with their father and their mother. The advantages of equal time are that (with any luck) the children will be able to engage in activities around their local area and thereby make friends in the area their father lives. Since the absence of friends is one of the major disincentives to the boys staying with their father, the ability to have a local peer group is the most effective means of normalising the relationship with the father. For instance, engaging the children in a local sports team would help that arrangement. An additional advantage of equal time is the father will be more satisfied with his role as a parent and hopefully though this develops a stronger and more effective relationship with his children than currently exists, especially with [S] that may be important as [S] enters more fully into adolescence.
136. The disadvantage of such a situation is the current tension in the relationship between [S] and his father, a tension that is not strongly obvious but does seem to exist. The sense that the father favours [C] over [S] is, in my opinion, due to the way the father seems more comfortable with [C]’s outgoing disposition, more like his own than is [S]’s. Thus the transition phase for [S] in spending more time with his father is likely to be quite difficult, especially at a time of entry into adolescence proper. The transition is likely to be the more difficult as the father seems unwilling to accept there is an issue in the way he relates to [S]. Two further disincentives to shared care exist. The first is the ongoing argument between the father and mother over the children’s schooling. The disruption to [C]’s schooling whilst he is still in primary school seems to me to outweigh advantages of living half the time in [omitted] and half in [omitted]. I also think finding a compromise school that allows for reasonable commuting times for [S] is important. [S] wants to continue his association with his friends, if he stays in Sydney, and thus a move to [R] Boys is his preferred option. Both parents seem to accept that [R] Boys is not the best school option for [S], but there cooperation ends. Regrettably school has become something of a hostage to the hostilities between the parents and a negotiated settlement in this matter seems unlikely, such negotiations falling over not only on location but also on costs and who will pay.
137. Another issue militating against a shared care arrangement is the hostility between the parents, and the apparent undermining each claims the other engages in about organising what is best for the children. The father presents himself as patient in the face of the mother’s controlling and intransigent approach to organising the children’s activities to effectively exclude him. On the other hand Ms Ewer claims to be accommodating and facilitating, in the face of paternal disinterest, of the boys relationships with the father. (I do not think there is any paternal disinterest, although the father’s occupation is a responsible and demanding one and likely to interfere at times with activities he might otherwise do with his children. Fortunately Ms B is quite good at being a compensatory parental figure and is well liked by the boys and appreciated by Ms Ewer) Irrespective of who may be at fault, the pattern of conflict and hostility will be irksome to the children, and will require them to either move adroitly between their parents, or take sides. In my view, to date the children have attempted to not take sides, but such conflict will be wearing on the children, and is not in their best interests.
138. Overall I consider the costs associated with a shared care system probably outweigh the benefits, although it is hard to determine what weight to place on each of the benefits and costs. My view is strongly influenced by the expressed wishes of the children, but such wishes may change if they spend more time with their father and become more comfortable with him.
At paragraph 139 Dr L explains that whilst he cannot make a specific recommendation, he believes the children’s interests are best served by maintaining a strong bond with their mother whilst trying to develop their bond with the father, though not in a shared care situation. He then concludes:
Strengthening the bond with the father is likely best to occur if the children remain in Sydney, although their preference and that of the mother’s is to go to Tasmania. If the children do go to Tasmania I do not believe there will be adverse circumstances for them. Should the Honourable Court provide for the mother and children to go to Tasmania the bond between the children and the father will stay much as it is, the father will feel his role is diminished but the children will retain a strong sense of identity and relationship with their father, despite the lesser time available for it.
Dr L refers to a number of matters that were clearly mirrored in the evidence I heard. Thus, for example, there was a strong sense from the evidence that the father does favour [C] over [S], despite his protestations that this is not the case. This does not mean that [S] is loved any less, but does reflect the differences in personality between [S] and his father. Moreover the evidence confirms Dr L’s pessimism about the ability of the parents to reach agreement about important matters relating to the children, and the parents ongoing hostility towards each other. It is indeed the case that which the parents ‘played out’ before Dr L they then ‘played out’ before the court.
By the time of the second report Dr L had noted some important changes. The boys were spending an additional night with the father. [S] had begun high school at [A]. The mother had commenced taking anti-depressants. There was no real improvement in the parents’ capacity to reconcile differences or communicate. The children were spending even more time with the father’s partner Ms B. The children’s relationship with Ms B had deteriorated. The boys were expressing their preferences in clearer terms. The extent to which both parents were involving the boys in discussions about the issues before the court was becoming clearer. Despite additional time between the father and the children, their relationship with him had not improved.
Dr L’s formulation commences at paragraph 45. At paragraphs 45-47 he explores the issue of the boys’ relationships with the father and
Ms B:
45. Formulation. A fundamental concern in the follow up interviews, was trying to gauge the nature of the relationship between the boys and their father. The boys (echoed by Ms Ewer) present it has not having prospered. The father and Ms B present it as having developed and progressed, but allege that out of loyalty to the mother the children present as superficially negative about it. It is therefore the father’s strong argument that the need to keep the boys in Sydney is to further nurture the good response the children have had to him as a result of the additional time. However, unless I am to completely disbelieve the boys, in the passage of time since my last report, the relationships between the children, their father and Ms B, appear to have deteriorated. I think the boys’ comments are not just superficial although I believe they are strongly motivated by their loyalty to their mother. But the issue is the loyalty to their mother and the inability, over a substantial period of time, for the boys to moderate their view of this situation, and the tug of war between their parents. They do appear to genuinely believe that things have got worse and the mobile phone incident and the issue over the debate about the tennis and those kinds of things seem to suggest that there has not been a meeting of the minds as might have been hoped, given the extra night allocated to the children to their father. There are multiple reasons why the relationship has not developed. I believe the father will argue that the children have been socialised into expressing complaints about him, but that such complaints are superficial and beneath that the children have bonded well to he and Ms B and really enjoy their time with him. That is the children are being nice to their mother, but that they will recover quickly once Ms Ewer accepts the situation she cannot go to Tasmania and the relationships will quickly normalise thereby.
46. I think the mother will say the father lacks insight into his manner around the boys and fails to understand the difference between “possession” (having the children with him) and meaningful contact with them. I believe she will see the father’s positive comment as either trying to put a gloss on things, or some form of self-delusion, justifying his intransigence (from her perspective).
47. The sense I gain from the boys is I think they do find it easy to slip into a language of complaint about their father, but the complaints against Ms B appear to have developed only since I last saw them and appear anchored in behaviours and incidents they can clearly recall. Ms B is becoming a casualty of the friction between the boys and the father; part because as I see it, Ms B does much of the actual child-care when the boys are with their father. The diminution of this relationship is most regrettable as it is clear Ms B has a strong emotional investment in the boys, and the boys did have quite positive views of Ms B in the past[1]. I think the relationship between the children on one hand, and the father on the other hand has not progressed despite the increased opportunity for that to occur.
[1] I did not get the impression Ms Ewer was deliberately attempting to interfere in the development of that relationship and made comments about her apparent approval of Ms B in my first report. I note the father’s affidavit however alleges the mother has deliberately attempted to run Ms B down to the children and reports various occasions where the children were spoken to in such a way by Ms Ewer as to form a negative view of Ms B.
There is a disconcerting dissonance between the father’s perception of his relationship with the children, and the situation as Dr L believes it to be. The disjunct between the father’s perceptions and reality was apparent elsewhere in the father’s evidence.
Paragraph 49 is an important one:
The relationship between the father and the children has seemingly, and to my surprise deteriorated since I last saw them. This is despite the efforts of the father. For some reason, which I fail to understand, the father does not appear to be able to communicate effectively with the children his interest in them in an emotionally warm way. From the father’s perspective, this is because the mother has practised some alienating techniques and so the children filter anything that he does through a kind of culture of complaint. From my perspective, I think it is not like that. The children are not alienated from their father, the relationship is not as strong as it could be, but the boys report love for their father, no fear of their father, enjoyment with him. and want to see him. I think that there is a sense of the children being protective of their mother, and they perceive their father at one level as being mean to her. They certainly perceive their father as blocking the happiness of their mother. However, there is in addition a failure of the father capitalising on the increased opportunity he has had to develop a relationship with his children. It doesn’t appear that extra time has been able to promote that relationship. If anything, the extra time appears to have led to deterioration (although it is acknowledged the father believes the children have benefited and they are not being truthful in the way they discuss their feelings with me). This leads to a major concern I have that if the status quo is retained, the children are simply going to become more resentful of the father, blame him for the likely sad and ongoing doleful mood of their mother, and rather than the opportunity for the father to develop a strong meaningful and emotionally congruent relationship with the children if they stay in Sydney, the obverse will occur.
Dr L rejects any notion that the children have been alienated from their father, but in cross-examination accepted that the boys were aligned with their mother. Of great concern to the court is Dr L’s opinion that if the status quo is maintained there is the risk that the boys’ relationship with their father will deteriorate rather than improve.
Turning specifically to the relocation issue Dr L states at paragraphs 48 and 50-51:
48. The critical issue in this matter remains the impact on the children, particularly their relationship with their father, should the mother be granted permission to move to Tasmania. At the moment, the status quo is that the mother will stay in Sydney if she is not permitted to relocate to Tasmania with the children. The mother clearly is experiencing a doleful time in Sydney. The children identify her as angry and frustrated. The mother identifies herself as being depressed and it is clear that she is quite unhappy with her living situation, despite being able to identify some strengths in it, such as continuing friendly relationships with people and enjoying her work and feeling valued there. There is no doubt that there is a strong and genuine desire on the mother’s part to move to Tasmania on the basis of her own perceived mental health and emotional needs. As my initial report discussed, the mother appears to have made the decision her life would be better if she was in Tasmania when she thought the father was going to Japan to work for an extended time. Whilst there remains debate about how long a time that might be, once the genie was let out of the bottle, the mother’s desire became quite entrenched and fundamentally disturbed the adjustment she had made, to that point, in living in Sydney. She believes that such a move would be helpful also to the children who appear to have accepted that such a move would be not only beneficial to their mum, but something they are looking forward to. The implication of any such move remains that it would likely attenuate the relationship with the father. In the event of a move to Tasmania it is difficult to see how conflict will be resolved (e.g. over such things as who pays for what), and thus the children will continue to be in a tug of war, and will likely continue to work out of their strong sense of loyalty to their mother.
…
50. It is a very difficult situation if the children do go to Tasmania. The father believes that his relationship with them will attenuate and doubtless that that will occur. He believes in time the children will regret going to Tasmania, and realise that it is not as good a place as Sydney. However, the concern now has to be that if the children remain in Sydney with the father, then attenuation may still occur, but it will occur with an additional level of bitterness and resentment towards the father, which will make it difficult for the children to maintain a relationship with him when they become older and more autonomous in their functioning.
51. The father does not believe this to be the case. The father’s perspective is that once a decision is finally made, Ms Ewer will come to accept it and the boys will be therefore less resentful because there will be no further energy in the mother’s fight to relocate to Tasmania. However, I think the father may be used to brinksmanship, certainly from my perspective it is now a gamble to say that if the children stay in Sydney he will have a better relationship with them in the long run. It may indeed occur, but it remains more probable than a year ago that the obverse will occur. Whilst indeed the mother may well come to accept that she is unable to go to Tasmania, it is not going to alter her mood or feelings about it, and I don’t believe it will alter the sense in the children that somehow or other their mother has been blocked from a chance of happiness. This will rebound quite significantly on the relationship that is seemingly under some strain between the children and their father (and Ms B). I do not think the father can build a relationship on the ashes of their mother’s despair, no matter how unfair he views that situation. I believe that the apparent deterioration in the relationship between the boys and Ms B is a warning sign that needs to be heeded in considering whether or not the mother and the children should be permitted to relocate to Tasmania. It remains a most difficult decision to make, however from my assessment it seems the passage of time has made clearer that retaining the status quo is unlikely to ultimately benefit the children or promote their relationship with their father.
To the extent that Dr L has, in the passages extracted above, made observations or expressed opinions about the parents, those observations and opinions are consistent with those formed by me during the course of the evidence.
Dr L was cross-examined on Day 5 of the hearing, the final day. A number of important points emerged from the examination by the Independent Children’s Lawyer. For example the “disconnect” between how the parents interpret events is not attributable to their different parenting styles, and that their different parenting styles were both within normal range and appropriate albeit different. Dr L normalised the strength with which each parent advocated their own case before him, and was not prepared to draw adverse inferences against either of them if it turned out, for example, the court made findings of fact different to the facts as asserted by either parent. He inclined to the view that, more likely than not, the mother had not obstructed the father’s relationship with the children. Whilst the children are aligned to their mother, this does not of itself undermine the weight to be given to the boys’ expression of views which, he thought, were more than alignment based. He found [S] to be a mature boy, with above average cognitive ability, thoughtful and in the top range of maturity for his age. Dr L warned that as the boys enter adolescence this presented a new challenge in terms of their relationship with the father, especially if they resent him for not allowing the relocation they want. If the boys were to remain in Sydney he predicts that the mother, who he described as “fragile psychologically” would not cope and that the boys would blame their father for their mother’s sadness, which would be low grade but pervasive.
In the mother’s Counsel’s examination of Dr L, he firmly refused to be drawn into opinions or judgments about whether one parent or another was telling him the truth. Indeed he normalised the very different perspectives presented to him by each parent, explaining that he took this for granted, and that it did not affect his opinion. He reminded the court that the parents were “two high functioning people embroiled in a break-down, drag-out dispute”. Thus whether one was telling the truth or not might be relevant to the court, but far less so to him. Dr L accepted that his first report should have signalled to the father that there were problems in his relationship with the boys, and that perhaps the father had not taken this on board. He confirmed once again that the boys had age appropriate insight into their circumstances, had a strong relationship with each other, but needed to be allowed to develop their own interests in free time whilst also enjoying a relationship with their father.
Dr L was robustly examined by Senior Counsel for the father, especially about the email correspondence between the parents in September to October 2009, and the circumstances of the mother commencing the present proceedings. It is possible that in Dr L’s desire to be even-handed with the parents, and to normalise what they did at various times, he may have minimised certain things. Thus, for example, the court will find that the mother did lack insight in discussing with the boys a relocation to Tasmania, before discussing it with the father. The court also will find that the mother clearly exaggerated to Dr L the nature and extent of the connection between the boys and her and Tasmania. The court finds this goes beyond normal strident advocacy by intelligent and articulate parents about their case – it was an attempt to influence Dr L inappropriately. The court accepts that Dr L has minimised the significance of these matters. As it turns out, however, the court does not accept that these issues undermine Dr L’s opinion and recommendations. All these things merely demonstrate lack of insight in the mother, something over which she does not have a monopoly in the parental relationship before the court.
Dr L would not agree, however, that [S]’s views were merely a reflection of the mother’s views, or that [S] was parroting his mother. Thus, for example, he described [S]’s description of the mother’s symptoms as age appropriate, not merely re-played. He also would not accept that the boys’ alignment with their mother was solely attributable to the conflict between the parents ie. that alignment reduces their vulnerability. Dr L explained that the alignment was also attributable to the mother being their primary caregiver, to a better relationship with her, and to the fact that more time with the father has not led to an improvement in that relationship. In relation to the different parenting styles Dr L again confirmed that the difference between them was within the normal range, and that there was no risk to the boys in being exposed to only one of those styles. He also rejected once again any notion that the boys’ views were the result of “group-think” in the mother’s home. Dr L explained that whilst the boys knew what the mother wants, they also have their own views and are expressing the same. The boys can see both parents’ perspective, but chose to go to the mother’s.
Dr L accepted, however, that [S]’s Semester 1 Year 7, 2012 School report was excellent, indicating he was well settled at school, and did not reflect any problems at home.
He agreed there was no reason to change his school from an educational perspective, but only if he moves states. Dr L accepted that the father was in a real dilemma if he opposes the relocation as the boys would experience this as unfair at a developmental stage in their life where the perception of fairness was paramount for them.
In terms of the boys’ alignment with their mother, Dr L believes this will sort itself out if relocation is permitted, but if not there is the risk they will continue to feel that it was unfair, though quite possibly continuing their good relationship with the father. The mother could be supported by frequent contact and visits with her family in Tasmania. It was put to Dr L that there was a real risk to the boys of losing their relationship with the father if relocation is permitted because distractions to contact will increase as they enter adolescence. He agreed it would be a difficult balancing act, but he felt that the boys genuinely want to go to Tasmania, and on balance there was a greater risk to their relationship with the father if they are not permitted to go.
Even though Dr L’s evidence was robustly tested by Senior Counsel for the father, I am satisfied that he did not resile from his conclusions and recommendations. The court finds Dr L to be a truthful, helpful expert who was able to identify the risks associated with all the proposals put before the court. The court accepts his evidence. Of particular significance and concern is Dr L’s evidence that there is a real risk of deterioration in the boys’ already difficult relationship with their father if they are not permitted to relocate to Tasmania.
Meaningful relationship
The court is satisfied that on all proposals before it, the children’s meaningful relationship with their parents will be preserved. To the extent, if at all, that the father’s case, expressly or impliedly, was that he would lose the meaningful relationship he has with the boys should relocation be permitted, I do not accept this to be the case. It is not the case, either in theoretical terms, or on the facts of this case, that diminishing time diminishes the father’s involvement which thus diminishes his relationship with his children. The boys in question are nearly 13 and 11. They are not at a stage in life where diminishing involvement diminishes relationship. These boys have a meaningful relationship with their father. This is common ground. It was observed by Dr L. It was conceded by the mother. This is notwithstanding the fact, that for example, the father and children lived in different countries for 2 ½ years and 9 months respectively, at a far more vulnerable stage of their development, without this affecting the meaningful relationship. On the proposals for contact before the court, even if meaningful relationship were an issue in this case, it would no longer be due to the opportunities that will be given for the father and children to spend time together.
Protecting the children from harm
The court is satisfied that this is not an issue in this case. To the extent that the father’s Case Outline suggests it is an issue, the evidence does not support this. There is no psychological or medical condition suffered by the mother that exposes the children to any risk of any sort of harm. True it is that the children have been exposed to the parental conflict, and at times inappropriately involved in it. I regard this as matters of lack of insight rather than risk to the children.
The children’s views
The parents both gave evidence in relation to matters summarising the children’s views about where they should live, and how much time they should spend with the other parent. The difficulty with such subjective evidence is just that – it lacks objectivity. The circumstances in which such views may have been expressed to a parent might have influenced those views. The views may not be reported accurately. Children may be saying to a parent what they want that parent to hear. Even if reported accurately there may be other subtleties and nuances not reported that would otherwise have a great impact on assessing those views. For these reasons I chose not to rely on any evidence the parents themselves gave on this issue.
I accept, however, that Dr L’s evidence about the views expressed by the children is both objective, and expert. In the first report he refers at paragraphs 110-111 to the joint interviews with the boys:
110. Interviews with the Children. I initially undertook my interviews with the children together although with children of this age I would normally see independently. I wanted to see them together to check out for myself the comments made that [C] tended to dominate the interactions with [S] and that was clearly what in fact was occurring when I saw them together. [C] did most of the talking for himself and for [S]. When I saw them together, in response to a general question about what life was like at Mum or Dad’s place, [C] said we get to do a lot more at Mum’s because we stay there more and [C] said there wasn’t much to do at Dad’s. He said Mum’s place was much more exciting and Dad’s place was much more boring. At this point in time I asked [S] if he wanted to add anything and he didn’t have anything to add.
111. I asked them what it would be like if they spent equal time at Mum and Dad’s place. [S] then said that could be a bit boring at Dad’s because they have to do extra homework on weekends and again made the comment he thought it was boring with [C] supporting him. [C] said most of the things they do at Dad’s place is sport. They have breakfast and dinner and would definitely rather spend time at Mum’s than at Dad’s.
At paragraph 112 there is this important observation by him:
The critical issue for these children is not the level of activity they may do with their Dad, or even I think whether they do extra homework; the critical issue appears to be the want of friends. At their mother’s place they live in an area where they have friends. At their father’s place they do not identity people around the area as friends. They say that their mother has her friends who also have children their age and they do a lot of socialising and it is the lack of socialising that appears to be the critical issue for the boys. When they talk about their father’s place as being boring, what they mean is they can’t have friends over. I think the father is somewhat aware of that and its his contention that because he only gets to see the children briefly he is unable to engage with the children and their friends although the other issue of course is that the children live on the south side of Sydney, attend school in [R], which is a long way from [omitted], and the issue of schooling and developing peer relationships in school and in extra curricula activities around where they live would be critical for the development of the relationship between the children and the father. The children made the observation that most of their friends from school all are friends of people that the mother knows.
Dr L was not challenged on this.
He interviewed [S], and part of this report in this regard is extracted below (paras.113-116):
113. Interview with [S]. [S] told me that his Dad “gets us into trouble for nothing”. He thinks [C] is the Dad’s favourite and [C] doesn’t get into trouble as much as he does. He told me he doesn’t get into trouble from his Mum and that his Mum was nicer than Dad and he had more fun with his Mum than he does with his Dad. He said his Mum lets them do many more things than his Dad does.
114. He referred to Ms B as kind of the same as Dad although he clearly didn’t have any major problems with her and he told me he would prefer to live with his Mum. He told me he had a lot of family from his mother’s side in Tasmania and he has gone to see them a few times. (When I spoke to Ms Ewer about that it appears that in fact since the children have been very young they have spent on average about 4 times a year in Tasmania, and hence have quite a strong relationship with family there.)
115. [S] made it very clear without any ambivalence whatsoever that he wants to live in Tasmania. He said because (a) there was a lot of family there (b) there was less pollution, which was interesting and something his father told me he would say, because there were fewer smokers there. When I said how did he know there were less smokers in Tasmania he said because he has been there and he had empirical knowledge to that event.
116. I asked him about the issue of leaving his friends. He said he had email and he could invite friends to Tasmania although I suspect that may be more problematic than he understands. He feels fine, he said, about not seeing his Dad as much.
Dr L makes another, unchallenged observation at paragraph 117:
I think one of the sad aspects of this situation is that there is a somewhat more attenuated relationship between [S] and his father in part because the father simply fails to understand how to relate to the more quiet nature of [S]. The father has a better capacity to relate to the more boisterous and gregarious kind of behaviour as evidenced by [C].
Dr L believes that [S]’s comments should receive some weight, and are not the sole product of his mother’s views.
In relation to [C], Dr L records at paragraph 121-123:
121. Interview with [C]. I asked the children who wanted to go first and [S] elected to go first although I ended up by talking briefly to [C] on his own initially. [C] told me that his Dad was a normal person who does normal things such as go to work, and Mum was kind of different to that. When I asked him to say in what way was she different he said she is much nicer. Dad barely cooks and Mum cooks good stuff. He said Ms B cooks but he said it isn’t interesting food i.e. food and veggies or they eat out. It appears that what he was really saying is the mother will ask them what they want to eat and then will cook food that the children want, for instance like pasta. He reiterated that the main issue (difference) as far as he was concerned was that of access to his peer and friendship group.
122. He told me that Ms B was “kind of like Dad but more active and busy”. He said that when they are at home and not doing sport Dad will sit around and work on his computer. He said they rarely go to the park but when they do they will kick the football around.
123. I talked to him about Tasmania. [C] said going to Tasmania was definitely [S]’s favourite thing. He said [S] likes things being quiet and really likes going to Tasmania because his cousins are there. He sees a lot of potential for social interaction it seems. [C] was more in favour of going to Tasmania than staying in Sydney, although there was more ambivalence in his response than with [S]. I asked him if he didn’t go to Tasmania what would things be like. He said they would probably just stay the way they are (that is he did not think he would spend more time with his dad). However I noticed [C] seemed to think quite deeply about this and I think despite his young age he is surprisingly thoughtful and surprisingly eloquent and I think that he has thought through these things. He would prefer to go to Tasmania and he said he has been to Tasmania on many occasions, which does appear to be the case. He has a good experience of the location that they would be going too and of the family and cousins there and he is whilst still somewhat ambivalent more inclined to go to Tasmania than not. I asked him what would happen if he had to leave his school. He said that would be okay but “it is not in the ‘fine with me’ category”. In other words he said he would miss his friends. I then asked him to give me a specific preference. He was careful to remain ambivalent. He said he still wanted to go to Tasmania but he still also wanted to find some means to spend time with his father in a reasonably consistent fashion.
Dr L thought that [C] was demonstrating a reflective capacity that indicates some consideration of what [C] says should occur, despite his young age. Dr L was acutely aware of the father’s belief that the children had been influenced by their mother. He says at paragraph 125, however:
Both parents nonetheless appear to have involved the children in this issue. [C] was able to identify discussions with both his parents about going to Tasmania and about each parent’s views of the other’s opinions about that. He said he doesn’t talk to [S] much about this, but he says sometimes his father will call him and [S] into his study to talk about these kinds of issues. He said his Mum doesn’t do that as much, and she will just tell them what’s happening (that she is going to court or whatever) and she will tell them to “leave it alone”, and she doesn’t give them much detail about what is actually happening.
Whilst paragraph 125 relates to [C], paragraph 31 of the second report relates to [S], but on the same issues:
[S] says both his mother and his father have had chats with him about what the issues might be. He said the other day his father talked about what he was doing about his “position”, i.e., the father had allegedly talked to [S] and told him he had changed his suggested orders for court from 50% care to more or less what it was now. Given the detail in such comment, it is likely that the father has indeed involved both children in discussions about his wishes, although given the age of the children, it is unreasonable to assume that the parents would not have at least some occasions to talk to the children about what they were thinking of, despite the fact that such discussion is likely to be distressing and placing the children in a difficult position.
Dr L believes that the mother has also been discussing these issues with the boys. For example, at paragraph 40 of the second report:
I asked him what he talked about with his mum. He said he does not talk much about things about the court case. He says that “mum will talk about things occasionally, but she doesn’t really talk too much about it,” but then they talk about things they will do in the next holidays and those kinds of things. The impression gained was that [C] is aware of the issues about parents not being supposed to talk to the children about things, and [C] was acting protectively in any comments about his mum. He said that his dad will talk about spending more time, and also spoke to me about the father having sat them down and talked to them about his changing of the application.
This is unchallenged evidence of Dr L. On balance, and having regard to all the other evidence before me, I accept that both parents have involved the boys in inappropriate conversations in relation to the matters before the court. I will find that this is another example of lack of insight on the part of both of them. In the present context, however, this fact means that I cannot dismiss the views expressed by the boys merely because one parent has spoken to them and sought to influence these views. The fact is the boys were exposed to the views of both parents.
In any event, the significance of the boys’ views becomes even more apparent in the second report. [S]’s interview is reported at paragraphs 28-30 and 32:
28. Interview with [S]. I had a reasonable interview with [S], lasting approximately 20 minutes or so. [S] tells me that he thinks things have been okay, although he told me the extra day is “pretty pointless” because he said his father is “hardly ever there2”. He says there is not much talking between them and says, as far he is concerned, the day is pointless.
29. When I gave him options on what it was that he wanted, he said his first preference would be to go to Tasmania; his second preference would be to stay in Sydney but to have fewer nights with his dad. If he couldn’t get that, then he wanted no more than what he currently had with his dad, and he definitely did not want an additional night, as suggested by his father. He says he is still quite happy to go to Tasmania, but he says if he did not go to Tasmania, he would feel annoyed. He would see that it is “time wasted”. By time wasted, he said “all the court stuff is for the purpose” of him going to Tasmania and if it did not eventuate, it would be a pointless activity. When I asked him to think of any upsides to staying in Sydney, he said, “None.” However, when pushed, he said he would not need to make new friends and he was going all right with his friends.
30. He tells me he finds his new school tough. He doesn’t like the uniform. He finds everything “too formal and too expensive”, although I suspect that that is some aspect of his protectiveness about his mother coming out. He said he would prefer to go to a regular school such as [R], and not a fancy one. When I suggested to him that he was in fact espousing his mother’s views, he said “no. This was how he felt”. He said it was not anything that he had discussed with his mum. (Ms Ewer has made plain her preference for private school education and that enrolling in a public school is an unattractive default option for her). He says he has no idea what [C] would say to me when I asked him, and said it was not something he and [C] talk much about.
…
32. He tells me if he went to Tasmania, he thought his mum would be happy and all of his mother’s family would be as well. He thinks if she stays in Sydney, she will be frustrated, angry and annoyed. He says if he goes to Tasmania, he is not sure how his father will feel. He says it is hard to tell what his father thinks because his father never shows much emotion or expression on his face. Indeed I think the father is a person who is extremely selfcontained around his emotion, and whilst at one level that may be perceived as a desirable characteristic, he is not a person who is going to get demonstrative or a negative emotion. Nonetheless, the father’s self control appears to have had the undesirable effect of confusing the children[2].
[2] I think the situation here has to be cautiously interpreted. The father may be self-contained, but on the whole, not engaging the children in displays of emotion is protective to them. The issue is whether such containment is viewed as indifference. I do not think the talks the father has with the children are likely to be construed as indifference. I think the children are aligned with the mother and defensive in how they discuss their father’s wishes to avoid conflict. However, it is the mothers contention in the affidavit material that the father has been controlling and limiting in his prior contact with his children, in order to promote his business interests, and that it is possible this attitude still exists but that the father has limited insight into it.
It is interesting to observe how, at paragraph 30, Dr L gently challenged whether [S] was expressing a genuine view, thus clearly signalling that he was aware of this possibility. One can also see that evidence such as that set out in paragraph 29 can clearly form the basis for the concerns Dr L expressed about a feeling of resentment or unfairness directed towards the father, if relocation were not allowed.
The interview with [C] commences at paragraph 36.
36. Interview with [C]. My interview with [C] also took about 15 to 20 minutes. [C] said, “Life is good”, but then said, “The extra day with dad is too much,” and he would rather it be only every second weekend, i.e., he did not want to spend any weeknights with his father. He says on the Monday and the extra day, his father was inviting people over. He said there was never enough time to finish work. He said he is getting “a bit used to the extra day now”, but still would rather do every second weekend.
37. He talked about the recent trip to Fiji. I asked him what it was like and he said it was only “so-so”. He said he did not really want to go and that he wanted to go to the Gold Coast, because he said he liked the theme parks. I got the impression that he found the idea of going to a place and having relaxing walks around the beach as not much fun. When asked about his relationship with Ms B, he was cautious. He said he does not do much with Ms B, mostly goes shopping, and implied that the time spent with Ms B now is quite boring.
38. I talked to [C] about the recent trip to Japan and the only positive he could think of was he collected a lot of Pokémon cards. He said that when they go on holidays, his father says that “this could be our last holiday together if you go to Tasmania.” He understood that his father would be quite happy if they stayed in Sydney, and is aware that his father does not want them to go to Tasmania.
At paragraph 39 Dr L states: “As with [S], quite unfortunately, it seems there has been a deterioration in the relationship between the children and Ms B”. In relation to Tasmania, paragraph 41 records:
I asked him what it would be like if he went to Tasmania. He said if they went to Tasmania, his mum would be really happy. He said there may be some issues with him about missing friends, but he says, “I could always travel back to Sydney if I move to Tasmania for holidays and the like,” and it appeared to me that he was quite resolved in his mind. He says if he stayed in Sydney… but then did not really finish that sentence other than saying that he knows that that would not be nice for his mum. He says that his mum would be unhappy. She would not get to be in a place close to her family. He then made the comment that his father’s parents were easily available (from Tasmania) and that they can always go there for long weekends to see them. This exchange indicated that [C] was quite protective of and knowledgeable about his mothers needs. There is a sense that [C] has made up his mind to support his mother, the ambivalence that was more noticeable in my first report now largely gone.
An important, and unchallenged observation is found at paragraph 42:
Although [C]’s comments appear at face value to support the father’s claims the children had been socialised into seeing the mother’s point of view, it is not the same as alienation. The children continue to profess a desire to have a relationship with their father; they are not alienated from him. The big concern is that despite increasing the time between the children and the father, there has been a diminution rather than an increase in the alignment between the boys and their father. Such a consequence is not simply an example of the invading influence of the mother, but reflects a problem in the father being able to establish his relationship with the children, despite the now greater opportunity to do it.
Dr L thus categorically rejects alienation. In paragraph 43 he explains in part why – because [C] retained some ambivalence:
I was able to talk to [C] about the concept of ambivalence. I got him to develop a rating scale about his wishes. He said staying in Sydney was about 25 to 30%, in which 100% is highly desirable. Going to Tasmania was 90%. When asked about what his other preferences would be, he said if he had to stay in Sydney, he just preferred to go over the Friday every second weekend. He says he would rather how it used to be at the end of the day on a Friday and then just go for the weekend. Then he started talking about tennis and he said that the issues around tennis were not good. He says Ms B and his father “never watch us and they always complain that we don’t learn enough there”, but he said, “I’ve learned a lot from the tennis club.” This was a spontaneous issue raised by [C] and does appear to be something that is a point of conflict between he and his father.
I am required, of course, to then consider equal time, or substantial and significant time. Neither parent advanced equal time, nor would it be in either of the boys’ best interests, or reasonably practicable.
I reach the same conclusion as regards substantial and significant time, which is inherent in the father’s proposal. It is not in the children’s best interests which, I trust, is apparent from my discussion of the s.60CC considerations set out above. It is, in any event, not reasonably practicable. If I allow relocation, as I intend to do, the father’s main proposal is not reasonably practicable because of the geographical distance between the parents (s.65DAA(5)(a)). Furthermore, I am not satisfied the parents have the capacity to implement such an arrangement (s.65DAA(5)(b)). My discussion of the s.60CC considerations above should indicate why. Moreover the parents neither have a present nor a future capacity to communicate with each other to resolve difficulties that might arise in implementing such an arrangement (s.65DAA(5)(c)). Again, this should be apparent from my discussion of the evidence above. Perhaps the most compelling factor, however, is the impact of such an arrangement on the boys’ (s.65DAA(5)(d)). The boys’ views are clearly articulated. I have found them not to be so influenced by their alignment with their mother that I should not give those views weight. Moreover the clear evidence of
Dr L is that if I do not allow the boys to relocate to Tasmania, it will have an adverse impact on their already strained relationship with their father.
For these reasons, I find the father’s proposal, which equates with substantial and significant time, not to be in the boys’ best interests, and not to be reasonably practicable.
The mother’s proposals for contact in Tasmania probably meets the definition of substantial and significant time in s.65DAA(3), but in a minimalist sense because of its comparatively low frequency. Nonetheless, for the reasons articulated above, it is both in the children’s best interests and reasonably practicable.
Order in best interests of the children?
When the s.60CC considerations are considered in the context the other aspects of the statutory scheme I conclude that these considerations favour allowing the boys to relocate with their mother. I find this to be in their best interests. The evidence indicates that the move will not adversely impact on their relationship with their father, and may in fact improve it. The relocation is consistent with their views, that I find must receive significant weight in this case. I have no concerns about the mother’s willingness and ability to facilitate and encourage the children’s ongoing relationship with their father once they relocate. I accept that it will be a major change in their lives, but I find it to be a manageable change, and one ultimately to their benefit and not detriment. I find there to be no issues of practical difficulty and expense, or of parental capacity, that contra-indicate relocation. The difficulties I have found in the attitudes of both parents will be ameliorated, I trust, and not exacerbated by, allowing relocation. I find relocation is, in fact, on the circumstances of this case, the order least likely to lead to further proceedings.
Relocation will provide to the children a number of other benefits which, whilst not determinative on the issue, provide secondary benefits. The mother will be happier, a factor that I expect will flow on to the boys, even if it just manifest itself in their being less concerned about their mother. The boys will move to a standard of accommodation that is at least equal to what they have now, if not better. They will attend what appears to be a very good school. They will be surrounded by extended family and friends. They will, I am satisfied, continue to enjoy the benefits of a father who amongst many other things, is able to offer interesting and varied travel opportunities. In the increasingly mobile and connected society in which they live, communication with their father and friends here in Sydney can be maintained.
Form of orders
Given that I intend to permit the boys to relocate, the focus now shifts to the precise orders to be made, especially as regards contact and communication with the father. The differences between the proposals in this regard are subtle, but important:
· Mother proposed half school holidays Terms 1 and 3 and over summer and all of the Term 2 school holidays
· Father proposed the Easter long weekend, two weeks over Christmas and all of the Term 2 school holidays
· Independent Children’s Lawyer proposed half summer school holidays but otherwise all of the Term 1, 2 and 3 school holidays.
Dr L gave evidence in cross-examination expressing caution about taking the children away for most of their holidays because of the importance to them of peer relationships at their developmental stage. I accept this evidence. Elsewhere in his evidence he refers to the process of individuation that these boys will experience. In my discussion about the impact of change for these boys I acknowledged the need to work consistently with developmental changes, and not against them. Of course this must be balanced with the important consideration of facilitating enough time with the father so that their relationship with him is both sustained and grown. In light of this I conclude that the father’s own proposal is in fact the best one for the boys. It leaves the boys with time at home during the Easter holidays, Term 3 and summer school holidays.
The proposals in relation to mid-term contact must also be considered.
· The mother proposes three weekends in a school term, one of which must be with the father visiting Tasmania, and the other two of which must be in Sydney or Melbourne.
· The father proposes three weekends in a school term without restriction as to venue, plus one further 48 hour period if the father is in Tasmania.
· The Independent Children’s Lawyer proposes three weekends in a school term provided one is in Tasmania.
The issue for determination is not the frequency of the weekend contact, but whether any conditions should be imposed in that regard. I intend to limit one of those weekends to Tasmania, and otherwise place no restrictions on the rest. I do this because, for the weekend in Tasmania, I think it is important that the father experience something of the world in which his boys will live both in terms of the physical world, but also their social world. That one weekend each term gives him the opportunity to get involved in their weekend activities etc. As for the other two weekends each term it is an opportunity for the boys to experience their father’s world be that a quiet weekend in his house in Sydney, or a more active weekend somewhere else in Australia. I trust the father’s common sense and judgment so that these plans do not involve unmanageable travel for his sons.
The mother and Independent Children’s Lawyer propose orders for the children to ‘spend time with’ the father, whereas he prefers to use the terminology ‘lives with’ in the context of his time with the children. All of the previous orders have been framed in terms of lives with/spends time with, or the previous statutory iterations of these concepts. I see no reason to change that now.
In Order 4 of her minute, the mother proposes in effect reserving to herself and the boys one weekend no more than once a month as a non-contact weekend. Provided that the father has not already nominated this as a contact weekend, I can see no problems with this.
It is inevitable that the children will travel by air. The mother proposes that the father pay all costs associated with this. The Independent Children’s Lawyer proposes that the cost be shared. The father’s proposal is silent about this. I will order the father to pay this cost. His financial circumstances are vastly superior to those of the mother. There was an assertion made on behalf of the mother, not disputed on behalf of the father, that the total cost to him of educating the children in Tasmania, together with the cost of the air travel for contact, would still be less than what he was prepared to pay for the children’s education in Sydney. I accept there was no direct evidence to this effect. My decision is based on their respective sworn financial statements, as well as the father’s evidence about the value to him of his current employment package.
There are a number of other ancillary orders proposed by the parents which, in my opinion, differ in form rather than substance, and in respect of which I propose to say nothing.
The mother proposes what is in effect an anticipatory costs order should the children travel overseas with a parent contrary to the terms of the orders. I decline to make such an anticipatory costs order noting that none of the matters set out in s.117(2A) are the subject of evidence before me.
In Order 15 of her minute, the mother seeks to restrain the father from seeking to reduce the amount he is paying by way of child support due to the costs that he would incur for the boys’ education in Tasmania and the costs of travel for contact. I decline the make this order. No evidence was led directly on this issue. No submissions were made in this regard. It is not for me, either as a matter of jurisdiction or exercise of discretion, to prognosticate about what the father might or might not do so far as child support is concerned. There are a range of factual and legal considerations pertinent to that issue, but in respect of which I have no evidence, and certainly no tested evidence. These matters are best determined by reference to the circumstances of the parents at the time, should an application in face be made.
The father proposes that the operation of any orders that involve relocation be deferred until the end of the 2012 school year, and on conditions that involve the mother giving him certain information. In order to minimise what I consider to be unnecessary disruption to the children’s lives, particularly as regards their current schooling, I would not consider permitting relocation before the end of this year. This is supported by the Independent Children’s Lawyer. In terms of the information the father seeks, I consider it appropriate and not overly intrusive. I have given consideration to changing the current orders pending the relocation. On balance I have decided not to do so, given the imminence and magnitude of the change the boys will experience at the end of this year. Once the boys know that they will be moving to Tasmania, the evidence suggests that many of the pressures in their relationship with the father will abate.
The father also proposes an anticipatory order i.e. that if in future they live in the same capital city, the orders revert to a formula proposed by him. I decline to make this order. The circumstances of the parents and children should determine what is an appropriate parenting order. One would have thought that as the boys get older their views on this issue will have even more weight. In any event there was nothing in the evidence to make me think that there was, for the foreseeable future, any prospect of the parents living in the same capital city.
By contrast, however, there was in my opinion more than just a hint from the father that if opportunities came his way he might accept employment overseas. “Everything is on the table” was both his evidence and his adage. Hence my desire to establish proposals to cover this contingency. It was critically important, of course, to ensure that the boys’ relationship with the father is sustained even if he is overseas once again. I accept the limitations in seeking to regulate possible or anticipated events, and the desirability of having regard to the family’s circumstances at that particular time. On the facts of this case the ideal situation is subsumed to the pragmatic desire to avoid the risk of no contact happening, and of the parents being unable to resolve issues satisfactorily in a timely fashion.
The mother’s proposal in this regard was for contact for half of the Terms 1, 3 and summer school holidays, and all of the Term 2 holidays, plus weekends whenever the father is in Australia.
The father’s proposal is for contact for half of the summer holidays, and for the whole of the Terms 1 and 3 holidays plus contact when his is in the city in which the boys reside, or in Australia.
In some respect the considerations in the present context are not all that different to those that govern contact if the father were in Sydney. However it is far less likely that there will be mid-term contact. Nonetheless Dr L’s concerns about the boys’ friends, and individuation, must still be considered.
On balance I prefer the father’s proposal because I do not think half of a mid-year school holiday is long enough to accommodate international travel. Thus it is more realistic to have orders for the whole of the Terms 1 and 3 school holidays each year.
The Independent Children’s Lawyer seeks an order that each parent pays the costs of the Independent Children’s Lawyer in the sum of $5,770. I did not have the benefit of submissions in this regard as the parties were, quite properly, focussed on the substantive issue before the court. I make this observation without in any way pre-judging any eventual costs application. The financial circumstances of the father are strong. The financial circumstances of the mother are not as strong, but do not necessarily indicate she has no capacity to pay. She clearly had the resources available to her to finance what must have been expensive litigation. Nonetheless, she may be able to come to terms with the Legal Aid Commission of NSW on this issue. The order I make will be that if the parents do not reach agreement with the Independent Children’s Lawyer on the issue of costs within 28 days, the Independent Children’s Lawyer has leave to relist the matter before me.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 20 August 2012
SCHEDULE A
ORDERS PROPOSED BY THE APPLICANT FATHER
A.Husband's proposals
That the parties have equal shared parental responsibility for all decisions relating to the long term care, welfare and development of the children of the marriage [S] born [in] 1999 ("[S]") and [C] [in] 2001 ("[C]") (collectively "the children").
That the Husband have sole parental responsibility for all day to day decisions relating to the children when they live with him and the Wife shall have sole responsibility for such decisions when the children live with her.
That the children live with the Husband and the Wife as follows:-
(a)During each school term, the children shall live with the Husband from the conclusion of school on Friday on the first Friday of each term until the commencement of school the following Wednesday and for the same period each alternate week thereafter, with the children to live with the Wife at all other times during each school term;
(b)For one half of all first, second and third term school holidays the children shall live with the Husband at such times as may be agreed but in default of agreement from after school on the last day of school term to 5.00 pm on the day which falls on the midpoint of such holidays and with the Wife for the remainder of such term holidays;
(c)Unless otherwise agreed, the children shall live with the Husband from 10.00 a.m. on 24 December 2012 to 3.00 p.m. 25 December 2012 and for the same period each alternate year thereafter;
(d)Unless otherwise agreed, the children shall live with the Wife from 3.00 p.m. 25 December 2012 to 7.00 p.m. 26 December 2012 and for the same period each alternate year thereafter;
(e)Unless otherwise agreed, the children shall live with the Wife from 10.00 a.m. 24 December 2013 to 3.00 p.m. on 25 December 2013 and for the same period each alternate year thereafter; and
(f)Unless otherwise agreed, the children shall live with the Husband from 3.00 p.m. 25 December 2013 to 7.00 p.m. 26 December 2013 and for the same period each alternate year thereafter;
(g)Unless otherwise agreed, the children shall live with the Husband for one half of the remainder of the long summer holidays each year being the first half of such holidays in 2012 (and for the same period each alternate year thereafter) and for the second half of such holidays in 2013 (and for the same period each alternate year thereafter), with the children to live with the Wife for the remainder of such long summer holidays;
(h)Notwithstanding any provision of these Orders to the contrary, the children shall live with the Husband from 10.00 a.m. to 7.00 p.m. on Father's Day and with the Wife from 10.00 a.m. to 7.00 p.m. on Mother's Day;
(i)At such further or other times as may be mutually agreed.
That the parties shall each notify the other forthwith upon them becoming aware of any occasion upon which the children shall not be living in their personal care or the personal care of a member of their family (save as provided by these Orders) for a period of more than 48 hours and in such event the other shall have the first option to spend time with and care for the children on such occasions if practicable.
That each party permit and encourage the children to communicate with the other parent at all reasonable times including occasions upon which each child may wish to do so and facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and SKYPE.
That the parties each:
(a)Notify the other as soon as practicable and in any event within 24 hours of any serious illness or injury suffered by the children whilst in the care of that party;
(b)Notify the other of any change in their telephone number and/or residential address within 7 days of such change;
(c)Notify the other of the name, address and telephone number of each health professional consulted by the children and provide all authorities and directions necessary for those health professionals to provide to each party all information and material held by such professionals in relation to the children.
That unless otherwise agreed, [S] continue to attend [A] School for his secondary education and that the parties each sign all documents and do all things necessary to cause [C] to complete his primary education at [R] School and to enrol him and permit him to attend [N] School for his secondary education and that for the purposes of this Order:
(a)the Husband pay all tuition fees and other expenses of an incidental to the children's education at such school(s) including but not limited to tuition fees, uniforms, sport uniforms, text books, compulsory required computer equipment and compulsory school related extra curricular activities including school or domestic excursions and agreed non-compulsory extra curricular activities;
(b)that if requested by the Husband to do so, the Wife will Order and pay for any computer equipment required by either of the children and within seven days of providing the Husband with invoices for such computer equipment the Husband will reimburse the Wife the amounts she has paid;
(c)the parties each be and are hereby restrained from relocating the permanent address of the children to a place outside the Sydney metropolitan area unless by mutual written agreement between the parties or further Order.
That the children each be permitted to travel overseas with either parent during any period of holidays with that parent and each party shall in a timely fashion do all things and sign all documents and give all necessary further consents to facilitate such travel including their consent to the issuing of a current passport for each child.
That pursuant to Sections 65DA(2) and 62B, particulars of the obligations these Orders create and particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust and comply with an order are as set out in the attached "Parenting Orders – obligations, consequences and who can help" and those particulars are incorporated in these Orders.
Such further or other Final Orders as this Honourable Court deems appropriate in all the circumstances.
B. Husband's Response to Wife's Proposals
That the parties have equal shared parental responsibility for all decisions relating to the long term care, welfare and development of the children of the marriage [S] born [in] 1999 ("[S]") and [C] [in] 2001 ("[C]") (collectively "the children").
That the Husband have sole parental responsibility for all day to day decisions relating to the children when they live with him and the Wife shall have sole responsibility for such decisions when the children live with her.
That the children live with the Husband as follows:
a) From 10.00 a.m. on 24 December 2012 to 6.00 p.m. on 7 January 2013 and for the same period each alternate year thereafter;
b) From 10.00 a.m. on 26 December 2013 to 6.00 p.m. on 9 January 2014 and for the same period each alternate year thereafter;
c) For the Easter period each year from after school on the Thursday preceding Good Friday to 7.00 p.m. on Easter Monday (or 7.00 p.m. on Easter Tuesday if that day is not a school day);
d) For the whole of the second term school holidays each year from after school on the last day of second term until 6.00 p.m. on the last day of such holidays;
e) For up to three further weekends each school term from after school Friday to the start of school on Monday (or Sunday evening at the Husband's option) as may be nominated by the Husband in writing prior to the commencement of each school term or as may be otherwise agreed between the parties;
f) On any other occasion the Husband visits Tasmania for up to 48 hours, with such time to be spent in Tasmania unless otherwise agreed;
g) At such further or other times as may be mutually agreed.
That the children live with the Wife at all other times.
That for the purposes of paragraphs 3 and 4:
a) The Husband be permitted to spend any long summer holidays, second term holidays or Easter periods with the children pursuant to sub-paragraphs 3(a) to (d) inclusive anywhere in Australia and/or overseas;
b) If either party is travelling overseas with the children, they shall provide the other with a flight itinerary and a contact mobile number at all locations at which the children will be living not less than two weeks prior to the day of departure;
c) The Husband shall be permitted to spend school term weekends with the children anywhere in Australia pursuant to sub-paragraph 3(e);
d) The Husband shall provide the Wife with not less seven day prior written notice of any intention to spend time with the children pursuant to sub-paragraph 3(f);
e) And to facilitate all interstate and overseas time spent by the Husband with the children:
f) The Wife shall deliver the children to Launceston Airport at the commencement of such times and collect them therefrom at its conclusion;
g) The Wife shall do all things required to permit and authorise the children to travel as unaccompanied minors, with the Husband, his wife Ms B or any other adult with whom the children are familiar to collect the children at their point of arrival and deliver the children to their point of departure.
h) And to facilitate time spent by the Husband with the children in Tasmania the Wife shall make the children available for collection by the Husband from her residence at the commencement of such times and the Husband shall return the children to the Wife's residence at its conclusion unless otherwise agreed.
That each party permit and encourage the children to communicate with the other parent at all reasonable times including occasions upon which each child may wish to do so and facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and SKYPE.
That the parties each:
(a)Notify the other as soon as practicable and in any event within 24 hours of any serious illness or injury suffered by the children whilst in the care of that party;
(b)Notify the other of any change in their telephone number and/or residential address within 7 days of such change;
(c)Notify the other of the name, address and telephone number of each health professional consulted by the children and provide all authorities and directions necessary for those health professionals to provide to each party all information and material held by such professionals in relation to the children.
That the children each be permitted to travel overseas with either parent during any period of long summer or school term holidays or Easter holidays with that parent and each party shall in a timely fashion do all things and sign all documents and give all necessary further consents to facilitate such travel including their consent to the issuing of a current passport for each child.
That the commencement of operation of these Orders be deferred until the end of the 2012 school year and upon the Wife providing the Husband with full written particulars and evidence of :
a) Her residential address;
b) Her residential and mobile telephone numbers;
c) Her email address;
d) The availability of operative webcam and/or SKYPE facilities for the purposes of communication with the Husband pursuant to paragraph 6.
In the event the parties at any future time live in the same capital city, Orders in the same terms as those set out in paragraphs 1 to 12 of the Husband's proposals in the event the Wife's relocation is refused.
That pursuant to Sections 65DA(2) and 62B, particulars of the obligations these Orders create and particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust and comply with an order are as set out in the attached "Parenting Orders – obligations, consequences and who can help" and those particulars are incorporated in these Orders.
Such further or other Final Orders as this Honourable Court deems appropriate in all the circumstances.
SCHEDULE B
ORDERS PROPOSED BY THE RESPONDENT MOTHER
That Orders 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17.2, 18 and 19 made on 26 April 2005 be and are hereby discharged.
That the wife be permitted to relocate to Tasmania permanently with the children.
The children spend time with the husband as follows:
3.1during the school holidays at the end of Term 1 and Term 3 for one half of the school holidays at a time nominated by the husband, with the husband providing the wife no less than 2 months notice and copy of proposed flight itinerary in advance of the dates the children are to be in his care and the children returning to the wife’s residence no less than 1 day prior to the first day of the next school term;
3.2during the school holiday at the end of Term 2 with the husband providing the wife no less than 2 months notice and copy of proposed flight itinerary in advance of the dates the children are to be in his care and the children then returning to the wife’s residence no less than 2 days prior to the first day of Term 3;
3.3during the Summer school holidays for one half of the school holidays as agreed between the parties and failing agreement:
3.3.1in even numbered years, for the first half of the school holidays; and
3.3.2in odd numbered years, for the second half of the school holidays;
with the husband providing the wife no less than 2 months notice and copy of proposed flight itinerary in advance of the dates the children are to be in his care and the children then returning to the wife’s residence no less than 2 days prior to the first day of the next school year;
3.4subject to Order 4:
3.4.1from Friday to Monday before school two weekends per school term in Sydney or Melbourne with the husband providing the wife no less than 6 weeks notice and copy of proposed flight itinerary in advance of the dates the children are to be in his care;
3.4.2on any occasion the husband visits Tasmania from 5.00pm on Friday evening (or 5:00pm on the Thursday evening if Friday is a public holiday) to Monday before school (or Tuesday before school if Monday is a public holiday), upon the husband giving the wife prior notice of his intention to exercise such period, provided that such period occur no more than once per month and the husband provide to the wife no less than 2 weeks notice; and
3.5at any other time as agreed between the parties in writing.
In the event that the wife nominates a weekend no more than once per month for the months of February to November inclusive each calendar year in which she proposes that the children will remain living with her, and provided she gives to the husband no less than 4 weeks notice, then the husband shall not nominate that weekend pursuant to Order 3.4 and it is noted that the wife will not nominate weekends when the Friday or Monday are public holidays.
Each child may communicate with each parent at such time as the child so wishes and the other party shall facilitate and encourage such communication by telephone, in writing or by other electronic means, including but not limited to email and Skype.
That the husband pay the cost of all airline travel of the children of or incidental to the husband spending time with the children pursuant to Order 3.
That for the purpose of spending time periods in Order 3:
7.1When the husband is spending time with the children in Tasmania, the wife shall deliver the children to the husband at Launceston airport and shall collect the children from Launceston airport at the conclusion of spending time periods unless the husband collects and delivers the children to and from school or otherwise agreed between the parties in writing, and
7.2When the husband is spending time with the children on mainland Australia:
7.2.1the wife or her nominee shall deliver the children to Launceston airport;
7.2.2the husband or his nominee shall collect the children from Sydney or Melbourne airport upon their arrival in Sydney or Melbourne from Launceston and deliver the children to Sydney or Melbourne airport at the conclusion of the time the children spend with the husband; and
7.2.3the wife or her nominee collect the children from Launceston airport upon the children’s return.
7.3When the husband is spending time with the children overseas:
7.3.1the wife or her nominee shall deliver the children to Launceston airport;
7.3.2the husband or his nominee shall collect the children from Sydney airport upon their arrival in Sydney from Launceston and deliver the children to Sydney airport at the conclusion of the time the children spend with the husband; and
7.3.3the wife or her nominee collect the children from Launceston airport upon the children’s return.
That the father notify the mother of the flight itinerary, address, mobile and land telephone number/s of the place/s where the children will be staying during holidays spent away from his primary residence in Australia, not later than 72 hours prior to the commencement of any holiday period.
That the mother notify the father of the flight itinerary, address, mobile and land telephone number/s of the place/s where the children will be staying during holidays spent away from her residence in Australia, not later than 72 hours prior to the commencement of any holiday period.
Each parent be allowed to travel overseas with the children for holidays away from their country of residence subject to:
10.1providing written notice to the other party no less than 42 days in advance of the departure date;
10.2notifying the other party of the flight itinerary, address, mobile and land telephone number/s of the place/s where the children will be staying during holidays, not later than 21 days prior to the departure date; and
10.3the children being accompanied on international flights by a parent or person familiar to the children (including the husband's wife, Ms B), until the youngest child, [C], is 12 years old.
That each party be restrained from removing the children from the Commonwealth of Australia, except as provided for in these Orders, without the prior written agreement of the other party or further Order of this Court.
In the event that either party does not comply with Order 11 and retains the children overseas, the party in breach of the Order shall pay for the other party’s indemnity costs of commencing proceedings in whichever jurisdiction the party has retained the children in order to have the children returned to Australia.
That each party shall do all things necessary to set up and maintain a computer to enable the children to communicate with the other parent by way of Skype.
That the children attend [S] School in Launceston unless otherwise agreed by the parties in writing and the father pay the cost of and incidental to the attendance of the children at [S] School including, but not limited to, tuition fees, uniforms, sports uniforms, text books and school related extracurricular activities including domestic excursions.
That the father be restrained from seeking to reduce the amount he is required to pay by way of periodic child support pursuant to any child support assessment issued by the Child Support Agency from time to time by seeking and/or applying for a credit for:
15.1the amount/s he pays relating to the father and/or child travelling for the purpose of the children spending with the father; and
15.2the payment by him of the cost of and incidental to the attendance of the children at [S] School including, but not limited to, tuition fees, uniforms, sports uniforms, text books and school related extracurricular activities including domestic excursions.
The husband pay the wife’s costs of and incidental to this Application.
SCHEDULE C
ORDERS PROPOSED BY
THE INDEPENDENT CHILDREN’S LAWYER
That all previous parenting orders be discharged.
That the mother and the father have equal shared parental responsibility for the children [S] born [in] 1999 and [C] born [in] 2001 (the children).
That each parent has responsibility for decisions as to the children’s day to day care, welfare and development during periods when they children are in their respective care.
That the children live with the mother.
That the children be permitted to permanently relocate with the mother to live in Tasmania at the end of the 2012 school year.
That pending the mother and the children's relocation to Tasmania, the father shall spend time with the children in accordance with the current parenting orders.
That the children spend time with the father during school term as follows:
a.From after school Friday till before school Monday for two weekends per school term provided that the father give the mother not less than 14 days written notice and provides a copy of the proposed flight itineraries and contact details.
b.In Tasmania on one occasion each school term that the father visits Tasmania from after school Friday until before school Monday provided the father gives the mother 14 days written notice of his intention to do so.
c.During the school holidays at the end of Terms 1, 2 and 3 from 9am on the first Monday of the school holidays until 5pm on the second Friday after the first Monday of the school holidays.
d.During the summer school holidays, for one half of the school holidays as agreed and failing agreement, in even numbered years for the first half of school holidays and in odd numbers for the second half of the school holidays.
e.At other times as agreed between the parents in writing.
That the parties shall share equally the costs all airfares for the children in accordance with these orders.
That each party permit and encourage the children to communicate with the other parent at all reasonable times including occasions upon which each child may wish to do so and facilitate and encourage such communication by telephone, in writing or by other electronic means including but not limited to email and SKYPE.
10. That the parties each:-
a.Notify the other as soon as practicable and in any event within 24 hours of any serious illness or injury suffered by the children whilst in the care of that party;
b.Notify the other of any change in their telephone number and/or residential address within 7 days of such change;
c.Notify the other of the name, address and telephone number of each health professional consulted by the children and provide all authorities and directions necessary for those health professionals to provide to each party all information and material held by such professionals in relation to the children.
d.Notify the other of the flight itinerary, address, mobile and land telephone number/s of the place/s where the children will be staying during holidays spent away from that parent's primary residence in Australia, not later than 72 hours prior to the commencement of any holiday period.
11. That each parent be allowed to travel overseas with the children for holidays away from Australia subject to:
a.Providing written notice to the other party no less than 42 days in advance of the departure date;
b.Notifying the other party of the flight itinerary, address, mobile and land telephone number/s of the place/s where the children will be staying during holidays, not later than 21 days prior to the departure date; and
c.The children being accompanied on international flights by a parent or person familiar to the children until [C] is 12 years old.
12. That each party be restrained from removing the children from the Commonwealth of Australia, except as provided for in these Orders, without the prior written agreement of the other party or further Order of this Court.
13. That within 90 days of the date of this order the parents pay to Legal Aid NSW the sum of $5770.00 each as payment towards the Independent Children's Lawyers professional costs.
NOTATIONS:
The court notes:
A. That Tasmanian schools currently have 3 terms a year, but will operate on a 4 term year from 2013.
B. That the father may elect for his time with the children in accordance with order 7 to take place in Melbourne rather than Sydney.
0