Fabina & Manalo
[2022] FedCFamC2F 1634
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fabina & Manalo [2022] FedCFamC2F 1634
File number(s): SYC 3632 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 29 November 2022 Catchwords: FAMILY LAW – parenting – application for final orders – where father seeks orders for the child live with him – where mother seeks orders for the child to spend less than substantial and significant time with the father – where child has ongoing health issues – where father seeks sole parental responsibility – where mother seeks sole parental responsibility for health and medical decisions and shared parental responsibility for other matters – where the Court finds it in the best interests of the child for the parents to have equal shared parental responsibility – where the Court finds it is in the best interests of the child to spend time with the father on a graduated regime increasing to shared ‘week about’ care – where the mother’s application to travel with the child outside the Commonwealth of Australia and New Zealand is refused Legislation: Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAE, 65Y Cases cited: A & A & The Child Representative [1998] FamCA 25
Godfrey & Sanders (2007) FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Johnson & Page [2007] FamCA 1235
M & M (1988) 166 CLR 69
M & S (formerly E) (2007) FLC 93-313
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Napier & Hepburn [2006] FamCA 1316
Pavli & Beffa [2013] FamCA 144
Tait & Densmore (2007) FamCA 1383
Division: Division 2 Family Law Number of paragraphs: 193 Date of hearing: 7-10 March 2022 Place: Sydney Counsel for the Applicant: Ms Treherne Solicitor for the Applicant: Daniela Fazio Lawyers Counsel for the Respondent: Mr Finch Solicitor for the Respondent: Litigant in Person ORDERS
SYC 3632 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FABINA
Applicant
AND: MS MANALO
Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
29 November 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged.
2.That the father (“the father”) and the mother (“the mother”) have equal shared parental responsibility for the child X born in 2018 (“the child”).
3.That the child live with and spend time with his parents as follows:
(a)From the date of these orders until the child starts school in 2023, the child live with the mother and spend time with the father:
(i)In week one:
A.From 4:30PM on Tuesday until 7:30PM; and
B.From 4:30PM on Wednesday until 7:30PM on Friday.
(ii)In week two:
A.From 4:30PM on Tuesday until 7:30PM; and
B.From the end of day care on Friday (or 3:30PM if he is not at day care) until the start of day care on Monday (or 9:00AM if he is not at day care).
(b)From the start of Term 1 in 2023, during term time the child live with the mother and spend time with the father:
(i)In week one:
A.From the end of school on Tuesday (or 3:30PM if not a school day) until 7:30PM; and
B.From the end of school on Wednesday (or 3:30PM if not a school day) until the end of school on Friday (or 3:30PM if not a school day).
(ii)In week two:
A.From the end of school on Tuesday (or 3:30PM if not a school day) until 7:30PM; and
B.From the end of school on Friday (or 3:30PM if not a school day) until the start of school on the following Monday (or 9:00AM if not a school day).
(c)From the start of Term 3 in 2023, during term time the child live with the mother and spend time with the father:
(i)From the end of school on Wednesday (or 3:30PM if not a school day) until the start of school the following Tuesday (or 9:00AM if not a school day) each alternate week.
(d)From the start of Term 1 in 2024, during term time the child live with his parents on a week-about basis with changeover occurring at the start of school on Monday (or 9:00AM if not a school day).
4.That from the school holiday period at the end of Term 1 in 2023, the child spend time with his parents during the school holidays as agreed between his parents in writing and failing agreement as follows:
(a)During the school holidays at the end of Term 1, Term 2 and Term 3 in odd numbered years, with his mother for the first half of such school holidays and with his father for the second half of such school holidays, with the changeover occurring at 3.00PM on the second Saturday of the school holiday; and
(b)During the school holidays at the end of Term 1, Term 2 and Term 3 in even numbered years, with his father for the first half of such school holidays and with his mother for the second half of such school holidays, with the changeover occurring at 3.00PM on the second Saturday of the school holiday.
(c)During the school holidays at the end of Term 4 in 2023 and thereafter for all Term 4 school holidays:
(i)In odd numbered years:
A.With the mother for two weeks from the end of school on the last day of school term until 2:00PM on the 14th day of the holidays;
B.Thereafter, with the father for two weeks until 2:00PM on the 28th day of the holidays;
C.Thereafter, with the mother for half of the remaining period of the holidays until 2:00PM on the day which is the middle point; and
D.Thereafter, with the father for the second half of the remaining period until the commencement of school.
(ii)In even numbered years:
A.With the father for two weeks from the end of school on the last day of school term until 2:00PM on the 14th day of the holidays;
B.Thereafter, with the mother for two weeks until 2:00PM on the 28th day of the holidays;
C.Thereafter, with the father for half of the remaining period of the holidays until 2:00PM on the day which is the middle point; and
D.Thereafter with the mother for the second half of the remaining period until the commencement of school.
5.That notwithstanding any other order, the child spend time with his parents during Easter as follows:
(a)In even numbered years, with the father from 10:00AM on Good Friday until 7:30PM on Easter Monday; and
(b)In odd numbered years, with the mother from 10:00AM on Good Friday until 7:30PM on Easter Monday.
6.That notwithstanding any other order, in the event the child is not otherwise spending time with his mother on Country H Orthodox Easter Sunday, the child shall be in his mother's care on Country H Orthodox Easter Sunday from 9:00AM until 6:30PM.
7.That notwithstanding any other order, the child spend time with his parents during Christmas as follows:
(a)In even numbered years, with the father from 4:00PM on Christmas Eve until 2:00PM on Christmas Day and with the mother from 2:00PM on Christmas Day until 2:00PM on Boxing Day; and
(b)In odd numbered years, with the mother from 4:00PM on Christmas Eve until 2:00PM on Christmas Day and with the father from 2:00PM on Christmas Day until 2:00PM on Boxing Day.
8.That in the event the child is not otherwise spending time with his father on Father's Day, he spend time with his father from 5:30PM on the Saturday before until 7:30PM on Father's Day.
9.That in the event the child is not otherwise spending time with his mother on Mother's Day, he spend time with his mother from 5:30PM on the Saturday before until 7:30PM on Mother's Day.
10.That in the event the child is not otherwise spending time with the father on the father's birthday, he spend time with his father from 3.30PM until 6.30PM if his birthday falls on a school day and from 10:00AM to 2:00PM if his birthday falls on a non-school day.
11.That in the event the child is not otherwise spending time with his mother on the mother's birthday, he spend time with his mother from 3:30PM until 6:30PM on the mother's birthday if her birthday falls on a school day and from 10:00AM to 2:00PM if her birthday falls on a non-school day.
12.That the child spend time with the parent in whose care he did not wake up from 10:00AM to 2:00PM on his birthday.
13.That changeover is to occur as agreed in writing and failing agreement:
(a)At the child's school or day-care; or
(b)If the changeover occurs at a time when the child is not attending school or day-care or in the event changeover occurs on a non-school or non-day-care day, the parent into whose care the child is moving will collect the child from the front gate or perimeter of the property or common entrance of a unit block of the parent out of whose care the child is moving.
14.That for the purpose of order 13(b), the parent into whose care the child is moving is to collect the child from the front gate or perimeter of the property and the parent out of whose care the child is moving is to facilitate the changeover by ensuring the child is brought to either the front door of the property so he can walk to the front gate of the property, or brought to the common entrance of a unit block so he can walk to the front gate of the property or if that leaves the child out of sight of either parent for any time at all, brought to the point from which the parent sending the child can see him traverse to the front gate of the property.
15.That for all changeovers at day-care or school the parent into whose care the child is moving may appoint a nominee to conduct changeover on their behalf and for all changeovers under order 13(b), both parents may appoint a nominee to conduct changeover on their behalf.
16.That the mother and father shall facilitate phone-call/video communication between the child and the other parent as follows:
(a)During the school term, on Sunday evening on days when the child is not otherwise in the other parent’s care, around 6:00PM.
(b)During the school holidays, on Tuesday and Thursday evenings when the child is not otherwise in the other parent’s care at around 6:00PM.
(c)That the parent who is caring for the child shall initiate the call.
(d)If the parent is unable to facilitate a phone-call at the scheduled time then that parent shall facilitate a phone-call within 24 hours at a similar time.
(e)That the parents shall consider any reasonable request for additional telephone calls, provided that such calls are at reasonable times being not before 9:00AM and not after 7:00PM.
(f)That the child be at liberty to call the parent in whose care he is not according to his wishes through his own electronic device.
17.That MS MANALO born in 1987, her servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child X born in 2018 from the Commonwealth of Australia EXCEPT THAT the said MS MANALO born in 1987 may remove the child X born in 2018 from the Commonwealth of Australia for the purpose only of travelling to New Zealand on one occasion in each six-month period subject to the following conditions:
(a)Any travel arrangements to New Zealand can only be made during:
(i)New South Wales gazetted school holidays; and
(ii)The time the mother is permitted to spend time with the child in any such school holiday period.
(b)The mother must provide no less than 28 days notice to the father of her intention to travel with the child to New Zealand;
(c)The mother must provide to the father not later than 21 days prior to departure an itinerary giving details of all flights, and detail of where the child will be staying during the travel in New Zealand, including details of how the child may be contacted through the mother by the father during his stay in New Zealand.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the name of X born in 2018 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist until he turns 18 years of age (in 2036).
18.That the parents shall do all things necessary and sign all documents necessary to ensure that the child has a current Australian Passport and that the parents shall renew the child's Australian Passport within six months before its expiration and shall share equally in the costs of obtaining and renewing the child's Australian Passport.
19.That the mother retain the child's passports of any nationality including (but not limited to) his Australian, New Zealand and Country H passports.
20.Each parent is at liberty to attend any school functions and/or extra-curricular activities that the parents are in the normal course invited to attend, irrespective of whom the child is living with/spending time with at the time, and each parent may invite members of their and/or the child's extended family.
21.Any non-carer parent who attends any activity pursuant to order 20 must not do anything to monopolise the child's attention or time and must provide no more than a greeting or encouragement to the child.
22.That these orders operate as authority for each parent to be able to obtain information from the child's school and medical and health practitioners.
23.That each of the parents shall keep the other parent informed at all times of all organisations, childcare centres, preschools, medical practitioners, and health workers the child attends from time to time or with whom the child is involved from time to time.
24.That in the event that the child suffers any serious illness or accident, the parent who has care of the child at that time shall inform the other parent as soon as is reasonably practicable.
25.That each of the parents shall do all things and sign all documents necessary to authorise and direct any day care or preschool or school attended by the child to discuss with the other parent the child's day-care or preschool or school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the day-care centre or preschool or school and distributed to parents or relating specifically to the child, and both parents are entitled to attend any activities at the day-care centre or preschool or school and attend at any sporting or other extracurricular activities engaged in by the child.
26.Each party shall give to the other party not less than 24 hours notice of any changes to their residential address and provide to the other party their landline telephone number (if available), mobile telephone number, email address and street address, as applicable.
27.That each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household, in the presence or within the hearing of the child.
28.That each of the parties is restrained from allowing the child to remain in the presence of or within the child's hearing of any other person who is making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household.
29.That each of the parties is restrained from making denigrating or derogatory statements in relation to the other parent, or any member of the other parent's family, or any member of the other parent's household by way of electronic communication and/or social media.
30.That each of the parties is restrained from showing any Court documents and/or documents related to these proceedings to the child and from instructing, authorising or allowing any other person to do so and each of the parties is restrained from discussing the content of any Court documents and/or documents related to these proceedings to the child and from instructing, authorising or allowing any other person to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fabina & Manalo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MORLEY J:
Introduction
The Applicant Father, Mr Fabina (“the father”), commenced these proceedings by filing an Initiating Application on 6 June 2019 seeking parenting orders in relation to the parties’ only child, X born in 2018 (“the child”). The Respondent Mother, Ms Manalo (“the mother”) filed her Response on 9 August 2019 seeking parenting and property adjustment orders. The father filed an Amended Initiating Application on 1 November 2019 seeking parenting and property adjustment orders.
The parties settled the property adjustment issues and final property settlement orders were made by consent on 24 January 2022.
The parenting issues went to final hearing over four days from 7 to 10 March 2022. The father was represented by Ms Treherne of Counsel and the mother by Mr Finch of Counsel.
The parties commenced cohabitation in 2016 and separated on either 27 March 2019 (the father’s evidence) or 2 April 2019 (the mother’s evidence). At the time of their separation, the child was one year and three months of age. At the time of hearing, he was four years and two months of age.
The materials relied upon at hearing
The father relied upon the following materials:
(a)Case Outline document prepared by the father’s counsel and filed 28 February 2022;
(b)Second Further Amended Initiating Application filed 28 May 2021;
(c)Affidavit of the father sworn or affirmed 25 November 2021 and filed 29 November 2021 (“the father’s first affidavit”), but only in relation to paragraphs 1 to 126, 139 to 142, 165, 206 and 207 – the other paragraphs related only to the property alteration issues resolved prior to final hearing – and including exhibits – EX1 and – EX2;
(d)Affidavit of the father sworn or affirmed on 9 February 2022 and filed 10 February 2022 (“the father’s second affidavit”);
(e)Affidavit of Ms C (the paternal grandmother) sworn 20 to November 2021 and filed 29 November 2021;
(f)Affidavit of Mr B (the paternal grandfather) sworn or affirmed on 25 November 2021 and filed 29 November 2021, but only in relation to paragraphs 1 and 25 to 48, the other paragraphs relating only to property alteration issues; and
(g)The Applicant Father Minute of Order Sought – Exhibit A16.
The father also relied upon exhibits A1 to A15 and A17.
The mother relied upon the following documents:
(a)Case Outline document prepared by the mother’s counsel and filed 3 March 2022;
(b)Second Further Amended Response filed 28 June 2021;
(c)Affidavit of the mother sworn or affirmed 20 January 2022 and filed 21 January 2022 except paragraphs 241 to 360 that related only to property alteration issues, and including annexures -1 to -37 and -82 to -85; and
(d)Respondent Mother’s Proposed Orders – Exhibit R5.
The mother also replied upon exhibits R1 to R4.
I advised counsel for each of the parties that certain paragraphs or parts of paragraphs in each of the affidavits relied upon could get no weight as evidence. I announced each such paragraph in open Court and advised that I was indicating same to counsel to enable them to seek leave to lead oral evidence in chief on matters referred to in those paragraphs and so that they would be aware of my view of the evidence contained in those paragraphs for submissions.
On 5 July 2021 an order was made appointing Dr D as a single expert witness to prepare an expert’s report for the assistance of the Court. Dr D conducted interviews on 29 and 30 November 2021 and provided her Expert’s Report dated 20 December 2021, released by an order made 10 January 2022. The Expert’s Report is Exhibit C1.
The father was cross examined by Mr Finch, as were both of the paternal grandparents. The mother was cross examined by Ms Treherne. Both counsel made written submissions in their Case Outline document and oral submissions on behalf of their client after the close of the evidence.
For preparation of these Reasons, I have carefully considered all of the material relied upon by each of the parties, including the exhibits, and the oral evidence of each of the parties and the father’s witnesses, including reviewing the audio recordings of that evidence and counsel’s submissions.
The proceedings up to final hearing
At the first return date on 12 August 2019 before me consent orders were made providing for:
(a)The parents to have equal shared parental responsibility for the child;
(b)For the child live with his mother and to spend time with his father initially on each Sunday from 3:30PM until 6:30PM;
(c)Then from 3 January 2020 when he turned two years of age, the child was to spend time with his father each Sunday from 12:30PM until 6:30PM with all changeovers to take place at the mother’s place of residence,
(d)The mother was to deliver the child to the paternal grandmother’s home every Thursday between 7:30AM and 8:00AM with the father to spend time with the child after he came home from work from 3:30PM until 6:30PM; and
(e)At any other times as agreed between the parties.
Further orders were made by consent requiring the mother to provide to the father in writing “notes in relation to all relevant issues re care of X such as sleep routine, dietary issues, health issues, developmental issues and the like” and of “the details of the child’s childcare centre and each professional/centre consulted in relation to the child (eg professionals in relation to the health and development of the child)”. An order was also made by consent requiring each party to do all things necessary to authorise and direct the child’s childcare centre and all professionals consulted in relation to the child to provide to each parent all information, copies of documents and reports (if any) in relation to the child.
An order was made not by consent restraining the mother from removing or attempting to remove, or causing or permitting the removal of, the child from Australia and requesting that the Australian Federal Police place the child’s name on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia.
It was carefully noted that the interim orders made by consent and not by consent were made without prejudice to the application through interim orders sought by the parties.
An interim hearing took place on 5 November 2019 and 20 February 2020, with further evidence in September 2020 and interim parenting orders were made as a result of the interim hearing on 7 December 2020 providing as follows:
PENDING FURTHER ORDERS THE COURT ORDERS:
(1) That order 4 of the consent orders made on 12 August 2019 is vacated.
(2)That the child [X] born in 2018 (“the child”) live with his mother.
(3) That the child spend time with his father as follows:
(a) until 1 March 2021:
(i) Each Tuesday from 4.30 PM until 7.30 PM;
(ii) Each Thursday from 3.30 PM until 6.30 PM; and
(iii) Each Sunday from 9.00 AM until 6.30 PM.
(b) From 1 March 2021 until 31 May 2021:
(i) Each Tuesday from 4.30 PM until 7.30 PM;
(ii) Each Thursday from 3.30 PM until 6.30 PM; and
(iii)Each alternate Saturday and Sunday from 9.00 AM until 6.30 PM each day, both to occur on the same weekend, the first such occasion to commence on 6 and 7 March 2021.
(c) from 1 June 2021 until 31 August 2021:
(i) each Tuesday from 4.30 PM until 7.30 PM;
(ii) each Thursday from 3.30 PM until 6.30 PM; and
(iii)each alternate weekend from 9.00 AM on Saturday until 6.30 PM on Sunday, the first such occasion to commence on 12 and 13 June 2021.
(d) From 1 September 2021 until 1 December 2021:
(i) Each Tuesday from 4.30 PM until 7.30 PM;
(ii) Each Thursday from 3.30 PM until 6.30 PM; and
(iii)Each alternate weekend from 3.30 PM on Friday until 6.30 PM on Sunday, the first such occasion to commence on 3, 4 and 5 September 2021.
(e) From 1 December 2021:
(i) Each Tuesday from 4.30 PM until 7.30 PM;
(ii)Each alternate Wednesday at 4.30 PM until Thursday at 6.30 PM the first such occasion to be on 1 and 2 December 2021; and
(iii)Each alternate weekend from 3.30 PM on Friday until 6.30 PM on Sunday, the first such occasion to commence on 10, 11 and 12 December 2021.
(f)in the event that the child is not otherwise spending time with his father on Fathers Day, from 9.00 AM until 6.30 PM on Fathers Day.
(g)In the event that the father’s birthday occurs on a day when the child is not otherwise spending time with his father, from 3.30 PM until 6.30 PM on the father’s birthday.
(h)From 9.00 AM until 2.00 PM on 25 December 2020;
(i) From 4.00 PM on 24 December 2021 until 2.00 PM on 25 December 2021.
(j) At such other times as may be agreed between the parents from time to time.
(4) That notwithstanding any other order herein, the child shall be in his mother’s care:
(a)From 9.00 AM until 6.30 PM on Mothers Day.
(b)From 3.30 PM until 6.30 PM on the mother’s birthday.
(c)From 4.00 PM on 24 December 2020 until 9.00 AM on 25 December 2020 and from 2.00 PM on 25 December 2020 until 2.00 PM on 26 December 2020;
(d)From 2.00 PM on 25 December 2021 until 2.00 PM on 26 December 2021.
(5) That notwithstanding any other order herein, on the child’s birthday:
(a)The child shall spend time with the father from 9.00 AM until 2.00 PM in even numbered years and from 2.00 PM until 7.00 PM in odd numbered years; and
(b)The child shall be in the mother’s care from 9.00 AM until 2.00 PM in odd numbered years and from 2.00 PM until 7.00 PM in even numbered years.
(6) That for the purpose of changeovers:
(a)On Tuesdays and Thursdays referred to in orders 3(a), (b), (c), (d) and (e)(i), the father or his nominee will collect the child from the child’s preschool (or the mother’s home if the child is not at preschool) at the start of his time and will return the child to the mother’s place of residence at the end of his time;
(b)On Wednesdays and Thursdays referred to in order 3(e)(ii), the father or his nominee will collect the child from the child’s preschool (or the mother’s home if the child is not at preschool) at the start of his time and will return the child to the child’s preschool (or the mother’s home if the child is not at preschool) at the end of his time;
(c)On Saturdays and Sundays referred to in order 3(a), (b) and (c) the father or his nominee will collect the child from the mother’s home at the start of his time and return the child to the mother’s home at the end of his time until the father has his own accommodation separate from his parents, and thereafter at the end of his time the wife or her nominee will collect the child from the father’s home; and
(d)On alternate weekend from Friday until Sunday, the father or his nominee will collect the child from the child’s preschool (or the mother’s home if the child is not at preschool) at the start of his time on Friday and return the child to the mother’s home at the end of his time on Sunday until the father has his own accommodation separate from his parents, and thereafter at the end of his time on Sunday the wife or her nominee will collect the child from the father’s home.
(7)That each of the parents shall keep the other parent informed at all times of all organisations, childcare centres, preschools, medical practitioners, and health workers the child attends from time to time or with whom the child is involved from time to time.
(8)That each of the parents shall keep the other parent informed as soon as reasonably practicable of any medical procedure or operation undergone by the child, such information to be provided prior to those operations or procedures being undertaken except in the case of an emergency.
(9)That in the event that the child suffers any serious illness or accident the parent who has care of the child at that time shall inform the other parent as soon as is reasonably practicable.
(10)That each of the parents shall do all things and sign all documents necessary to authorise and direct any day care or preschool attended by the child to discuss with the other parent the child’s day-care or preschool attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the day-care centre or preschool and distributed to parents or relating specifically to the child, and both parents are entitled to attend and to fully participate in all and any activities at the day-care centre or preschool and attend at any sporting or other extracurricular activities engaged in by the child.
(11)That both parents shall make notes in a journal that shall be passed between the parents on changeover of the child with respect to any dietary issues, allergic reactions, sleep issues, or health issues affecting the child whilst in the parent’s care and details of the food and drink consumed by the child whilst in the parent’s care.
(12)That each of [MS MANALO] born in [1987] and [MR FABINA] born in [1985], their servants and agents are restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child [X] born in 2018 from the Commonwealth of Australia EXCEPT THAT the said [MS MANALO] born in [1987] may remove the child [X] born in 2018 from the Commonwealth of Australia for the purpose only of travelling to New Zealand on one occasion in each six-month period, the duration of the child’s stay in New Zealand is not to exceed 14 nights AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the name of [X] born in [2018] on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist pending further order of the Court WITH THE EXCEPTION ONLY of the permitted trips to New Zealand pursuant to this order.
(13)THAT PENDING FURTHER ORDER the Husband pay to the Wife the sum of $216 per week as spousal maintenance, the first such payment to be made within seven days of the date of the making of this order and payable weekly thereafter into an account nominated by the Wife to the Husband for that purpose in writing no later than three days after the date of making of this order.
THE COURT FURTHER ORDERS:
(14)That the Wife pay the costs of [Mr B] and [Ms C] of the proceedings on 7 April 2020 in the fixed sum of $2,490, and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.
(15)That the Wife pay the costs of the Husband of the proceedings on 7 April 2020 in the fixed sum of $1,100 and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.
THE COURT FURTHER ORDERS THAT:
(16)That the Application in a Case filed by the Wife on 5 November 2020 is dismissed.
(17)That the Application in a Case filed by the Husband on 14 August 2020 is dismissed.
(18)That the Application in a Case filed by the Wife on 9 September is dismissed.
(19)That the interim application filed by the Husband on 6 June 2019 is dismissed.
(20)The Application in a Case filed twice by the Husband on 4 December 2020 is dismissed.
On 9 December 2020 a further order was made by consent in these terms:
That prior to any travel by the child outside the Commonwealth of Australia and two New Zealand as permitted by order 12 of the orders made on 7 December 2020, the Mother must provide no less than 14 days notice to the Father of her intention to travel with the child to New Zealand, and further must give to the father no later than seven days prior to the date of departure an itinerary giving details of all flights, and details of where the child will be staying during the travel in New Zealand, including details of how the child may be contacted through the Mother by Father during his stay in New Zealand.
A notation was also made:
The Court is making enquiries with the AFP as to how order 12 will, practically, operate, so as to ensure that the child is appropriately maintained on the Airport Watch List but also permitted to travel to New Zealand as provided for in the order.
On 27 April 2021 a hearing of an Application-Contravention filed by the father resulted in the mother being found guilty of five contraventions and the parties entered into orders by consent providing for the father to have make-up time and for the mother to enrol in and complete the Parenting After Separation – Focus on Kids course, with no orders be made as to costs.
The competing proposals of the parties
The father sought the following final orders as set out in his Minute of Order that is Exhibit A16:
Parental responsibility
1. That all previous parenting orders be discharged.
2.That the father have sole parental responsibility for the child [X] (born in [2018]) (the child) in relation to his care, welfare and development of a long-term nature.
3.That on each occasion a decision in respect to the long-term welfare of the child arises the father will:
(a)advise the mother in writing of the issue and his proposed decision;
(b)invite the mother to express his view or any alternate proposal she may have within 7 days;
(c)give genuine consideration to the timely views of the mother; and
(d)advise the mother in writing of the decision made.
Care arrangements
4. That the child live with and spend time with the parents as follows:
(a)from the date of these orders, for a period of two months, the child live with the mother and spend time with the father:
(i) in week one:
(A)Tuesday from 4:30pm (if the child is in daycare conclusion of school until 7:30pm
(B)Wednesday from 4:30pm (if the child is in daycare) or the conclusion of school until 7.30pm on Thursday.
(ii) in week two:
(A)Tuesday from 4:30pm (if the child is at daycare) or the conclusion of school until 9am on Wednesday or the commencement of school; and
(B)From 3:30pm on Friday until Monday 9am (if the child is at daycare) or the commencement of school.
(b)at the expiry of order 4(a) above, for a period of three months, the child live with the father and spend time with the mother:
(i) in week one:
(A)From 4.30pm on Wednesday (or the conclusion of school) until 9am Thursday (if the child is at daycare) or the commencement of school;
(ii) in week two:
(A)Tuesday from 4.30pm (if the child is at daycare) or the conclusion of school until 9am Wednesday or the commencement of school;
(B)Friday from 4.30pm (if the child is at daycare) or the conclusion of school until Tuesday at 9am (if the child is at daycare) or the commencement of school.
(c)at the expiry of order 4(b) above, or at the start of Term 1, 2023 (whichever is the earlier), the child live with the father and spend time with the mother:
(i)each Wednesday, from after school until before school Thursday; and
(ii)each alternate weekend from after school Friday until before school Monday.
5That notwithstanding order 4 above, the child spend time with the parents during the Term 1, 2, 3 and 4 school holiday periods as agreed by the parties in writing, but failing agreement as follows, half of all of school holidays but in a week about arrangement, with changeover to occur on each Saturday at 6:00pm:
(a)in odd-numbered years, the first week of the school holidays with the mother; and
(b)in even-numbered years, the first week of the school holidays with the father; and
(c)for the purposes of changeover, the changeover shall occur on the Saturday at 6:00pm in the middle of the holidays.
Special Days
6.Notwithstanding any other order made herein, the child is to spend time with the mother:
(a)For the weekend of Mother's Day from 9.30am on the Saturday to 7.30pm on the Sunday if the child is not already in the mother's care;
(b)From 9.30am … to 9.30am …;
(c)From 4pm on 24 December until 2pm on 25 December in even numbered years.
7.Notwithstanding any other order made herein, the child is to spend time with the father:
(a)For the weekend of Father's Day from 9.30am on the Saturday to 7.30pm on the Sunday if the child is not already in the father's care;
(b)From 9.30am … to 9.30am ….
(c)From 4pm on 24 December until 2pm on 25 December in odd numbered years.
8. Notwithstanding any other order herein, on the child's birthday:
(a)The child shall spend time with the father in odd numbered years from 9am to 6pm;
(b)The child shall spend time with the mother in even numbered years from 9am to 6pm.
Changeovers
9.For the purposes of these orders, changeover other than at the school or scheduled activity or event is to take place at [Suburb K] McDonalds, [J Street, Suburb K] unless otherwise agreed in writing.
10.For the purposes of these orders, the parents or their agents may attend changeover, provided the parents have communicated the name of the agent in writing to each other.
Communication
11.The parents shall communicate with each other using the "Our Family Wizard" parenting application, the parents to share the cost of the subscription equally. The communication between the parents in the "Our Family Wizard' app is to be limited only in relation to obligations as to parental responsibility including medical and psychological treatment (if necessary) and education, including extra-curricular activities, unless in the case of an emergency.
12.Each of the parents are permitted to have reasonable contact with the child and may communicate with the child via the child's "Watchi pals" smart watch and/or other technology at all reasonable times, provided that communication does not take place before 6am or after 7pm and not more than 2 occasions, every second day, unless otherwise agreed.
13.Each parent will ensure the child's smart watch and/or other technology is with the child at all times, charged, turned on and if the child is not wearing the watch, ensure the smart watch and/or other technology is within hearing distance so that the parent who phones the child may speak to the child. If the watch and/or other technology is lost or damaged, that parent with whom the child was with during the time the watch was lost or damaged shall be responsible to purchase and set up a new smart watch for the child at that parents own cost and within 7 days.
14.The father will ensure that the father’s telephone number, the mother’s telephone number and the paternal grandmother’s telephone number are programmed into the smart watch, those being the carers with whom will collect the child and/or hand over the child at changeovers.
15.Notwithstanding any other order herein, in the event the child expresses a wish to speak with the parent whom he is not living with/ spending time with, the parent whom the child is living with/ spending time with must facilitate any reasonable request by the child for such communication.
16.Each party shall give to the other party not less than 24 hours' notice of any changes to their residential address and provide to the other party landline telephone number (if available), mobile telephone number, email address and street address, as applicable.
Activities & Notifications
17.Each parent and/or members of the child's extended family as invited by one of the parents is at liberty to attend all and any school functions and/or extra-curricular activities that the parents are in the normal course invited to attend, irrespective of whom the child is living with/ spending time with at the time.
18.In the event the child is not attending daycare or school on a normal daycare/ school day for any reason, the parent with the child's care· shall contact the other parent by no later than 10.30am on that day to inform them of the child's absence from daycare/ school and the reason for the absence.
19.Should there be any medical emergency involving the child, including but not limited to serious illness, accident or hospitalisation, the party with the care of the child must:
(a)immediately contact the other party; and
(b)within 48 hours of the medical emergency provide to the other party all documentation and information in their possession regarding the incident and the status of their child's health.
Injunctions
20.That the mother and the father are restrained from making denigrating or derogatory statements in relation to the other parent, or the other parent’s family members, de facto spouses/future partners, in the presence or hearing of the child, or by way of electronic communication and/or social media, and are restrained from allowing the child to be in the presence or hearing of any other person making denigrating or derogatory statements in relation to the other parent, or the other parent’s family member.
21.The parties are restrained by way of injunction from showing any Court documents and/or documents related to these proceedings and/or discussing the content of any Court documents and/or documents related to these proceedings to the child.
Airport Watchlist
22.That [MS MANALO] born in [1987], her servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child [X] born in [2018] from the Commonwealth of Australia EXCEPT THAT the said [MS MANALO] born in [1987] may remove the child [X] born in [2018] from the Commonwealth of Australia for the purpose only of travelling to New Zealand on one occasion in each six-month period subject to the following conditions:
(a) any travel arrangements to New Zealand can only be made during:
(i) New South Wales gazetted school holidays; and
(ii) the time the mother is permitted to spend time with the child in any such school holiday period.
(b)the mother must provide no less than 28 days' notice to the father of her intention to travel with the child to New Zealand;
(c)the father will provide the child's Australian passport to the mother for the purposes of such travel within 48 hours of receiving the request at order 22(b) above;
(d)the mother must provide to the father not later than 21 days prior to departure an itinerary giving details of all flights, and detail of where the child will be staying during the travel in New Zealand, including details of how the child may be contacted through the mother by the father during his stay in New Zealand.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by maintaining the name of [X] born in [2018] on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Family Law Watchlist until he turns 18 years of age (in [2036]).
23.Within 7 days from the date of these orders, the mother deliver up the child's Australian, [Country H] and New Zealand (if any) passports, whether expired or current, to the father.
24.That pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the father is solely responsible for signing passport application forms (including any renewal forms) for the child without the necessity of the mother's knowledge, consent or signature and at all times (unless agreed by the parents in writing or pursuant to order 23 above) the child's passport shall remain in the father's physical possession.
25.After any travel pursuant to order 22 above, the mother shall, upon her and the child's return, return the child's Australian passport to the father within 48 hours of their arrival back in Australia.
Costs
26.That the mother pay the father's costs on an indemnity basis.
27.That pursuant to sections 628 and 65OA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders
The mother sought the following final orders as set out in her Minute of Order that is Exhibit R5:
(1) That all previous parenting orders be discharged.
Parental Responsibility
(2) That, subject to Order 3, the parents have equal shared parental responsibility for all major long-term issues.
(3)That the mother have sole parental responsibility for all health and medical decisions and that the mother will;
(a)Advise the father in writing of the issue and her proposed decision;
(b)Invite the father to express his view or any alternate proposal he may have within 7 days;
(c)Give genuine consideration to the views of the father;
(d)Advise the father in writing of the decision to be made.
(4)That the mother shall provide 14 days notice to the father of any food challenge that is to be undertaken and that during such period of the food challenge each parent shall maintain a food diary and confine such notations to the child's skin condition and allergic reactions whilst in the parent's care and details of the food and drink consumed by the child whilst in the parent's care.
(5)That both parents shall comply with any treatment plan, including diet and medication as provided by the child's medical practitioners and dieticians.
Live With and Spend Time
(6)That the child [X] born in [2018] ("the child") live with the mother.
(7)That for the remainder of 2022 and continuing until the commencement of the 2023 school term the child spend time with the father as follows:
(a) Each Tuesday from after school or 4:30pm until 7.30pm.
(b) Each alternate Wednesday from 4:30pm until Thursday at 6.30pm.
(c)Each alternate weekend on Friday from 3:30pm until 6:30pm on Sunday.
(8)That commencing 2023 during the school term the child spend time with the father as follows:
(a)Each Tuesday from after school or 3:30pm on a non-school day until 6.30pm
(b)Each alternate Wednesday from after school or 3:30pm on a non-school day until Thursday at 6.30pm.
(c)Each alternate weekend, commencing in week 2 from after school on Friday or 3:30pm on a non-school day until 9am Monday and if Monday falls on a public holiday until 6:30pm.
(9)That during the Terms 1, 2 & 3 school holidays the child spend time with the mother and father as agreed in writing but otherwise:
(a)In odd numbered years with the mother for the first week and with the father for the second week;
(b)In even numbered years with the father for the first week and with the mother for the second week;
(c)For the purposes of changeover, that changeover take place on the second Saturday at 12pm.
(10)That during the Term 4 school holidays the child spend time with the mother and father as agreed in writing but otherwise;
(a) In odd numbered years:
(i)The child will spend with the father for 2 weeks from the conclusion of school on the last day of school term until 2pm on the 14th day.
(ii)Thereafter with the mother for 2 weeks until 2pm on the 28th day.
(iii)Thereafter with the father for half of the remaining period until 2pm.
(iv)Thereafter with the mother for the second half of the remaining period with the father to the commencement of school.
(v)That the school holidays commence on the first day that the child is not required to attend school.
(b) In even numbered years:
(i)The child will spend with the mother for 2 weeks from the conclusion of school on the last day of school term until 2.00 PM on the 14th day.
(ii)Thereafter with the father for 2 weeks until 2pm on the 28th day.
(iii)Thereafter with the mother for half of the remaining period until 2pm.
(iv)Thereafter with the father for the second half of the remaining period with the father to the commencement of school.
(v)That the school holidays commence on the first day that the child is not required to attend school.
Significant Days
(11)In the event that the child is not otherwise spending time with his father on Father’s Day, from 7:30pm on Saturday until 6.30pm on Fathers Day.
(12)In the event that the child is not otherwise spending time with his mother on Mother’s Day, from 7:30pm on Saturday until 6.30pm on Mother's Day.
(13)The child shall be in his mother's care on [Country H] Orthodox Easter Sunday from 9.00 AM until 6.30pm.
(14)In the event that the father's birthday occurs on a day when the child is not otherwise spending time with his father, from 3.30 PM until 6.30 PM on the father's birthday on a school day and from 10am to 2pm on a non-school day if the child is in the mother's care.
(15)In the event that the mother's birthday occurs on a day when the child is not otherwise spending time with his mother, from 3.30 PM until 6.30 PM on the mother's birthday on a school day and from 10am to 2pm on a non-school day if the child is in the father's care.
(16)In even numbered years with the mother from 10am on Good Friday until 7:30pm Easter Monday.
(17)In even numbered years with the father from 10am on Good Friday until 7:30pm Easter Monday.
(18)That the child shall spend time with the mother and father at Christmas by agreement in writing but otherwise as follows;
(a)In odd numbered years with the mother from 4pm on Christmas Eve until 2pm Christmas Day and with the father from 2pm Christmas Day until 2pm Boxing Day.
(b)In even numbered years with the father from 4pm on Christmas Eve until 2pm on Christmas Day and with the mother from 2pm Christmas Day until 2pm Boxing Day. ,
(19)That the child shall spend time with the father on the child's birthday from 10am to 2pm if the child is in the mother's care.
(20)That the child shall spend time with the mother on the child's birthday from 10am to 2pm if the child is in the father's care.
(21)On days when the child is not attending school the father or his nominee will collect the child from the mother's home at the start of his time and return the child to the mother's home at the end of his time until the father has his own accommodation separate from his parents, and thereafter at the end of his time the mother or her nominee will collect the child from the father's home.
Schooling & Medical Providers
(22)That commencing 2023 the child shall be enrolled into [L School].
(23)That these orders operate as authority for each parent to be able to obtain information from the child's school and medical and health practitioners.
(24)That each of the parents shall keep the other parent informed at all times of all organisations, childcare centres, preschools, medical practitioners, and health workers the child attends from time to time or with whom the child is involved from time to time.
(25)That in the event that the child suffers any serious illness or accident the parent who has care of the child at that time shall inform the other parent as soon as is reasonably practicable.
(26)That each of the parents shall do all things and sign all documents necessary to authorise and direct any day care or preschool or school attended by the child to discuss with the other parent the child's day-care or preschool attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the day-care centre or preschool and distributed to parents or relating specifically to the child, and both parents are entitled to attend any activities at the day-care centre or preschool and attend at any sporting or other extracurricular activities engaged in by the child.
(27)That the mother and father are restrained from making denigrating or derogatory statements in relation to the other parent, or the other parent's family members, de facto spouses/ future partners, in the presence or hearing of the child, or by way of electronic communication and/or social media, and are restrained from allowing the child to be in the presence or hearing of any other person making denigrating or derogatory statements in relation to the other parent, or the other parent's family member.
(28)Each party shall give to the other party not less than 24 hours' notice of any changes to their residential address and provide to the other party landline telephone number (if available), mobile telephone number, email address and street address, as applicable.
(29)That the mother and father shall facilitate phone-call/video communication between the child and the other parent as follows;
(a)During the school term on Sunday evening on days when the child is not otherwise in the other parent's care around 6pm for a period of time that the child so desires.
(b)During the school holidays on Tuesday and Thursday evenings when the child is not otherwise in the other parent's care at around 6pm for a period of 30 minutes and extended if the child so desires.
(c)That the parent who is caring for the child shall initiate the call.
(d)If the parent is unable to facilitate a phone-call at the scheduled time then that parent shall facilitate a phone-call within 24 hours at a similar time.
(e)That the parents shall consider any reasonable request for additional telephone calls provided that such calls are at reasonable times being not before 9am and not after 7pm.
(f)That the parents shall facilitate a phone-call with the other parent if the child so requests.
Overseas Travel
(30)That the parents shall do all things necessary and sign all documents necessary to ensure that the child has a current passport and that the parents shall renew the child's passport within 6 months of its expiration and shall share equally in the costs of obtaining and renewing the child's passport.
(31)That the mother shall hold the child's Australian and [Country H] passports in the first instance and within 7 days of the father returning with the child from any overseas travel he shall return the passport(s) to the mother.
(32)That within 7 days of either parent providing written notice of their intention to travel overseas with the child pursuant to these Orders, the parent holding the passport shall provide the travelling parenting with the passport.
(33)That the mother and father are permitted to travel overseas with the child on the condition that the parent who intends to travel overseas with the children give the other parent 60 days' notice of his or her intention to travel overseas with the child by way of email and thereafter receive a response from the non-travelling parent that they have received that email and that for the purpose of this Order, the parent intending to travel overseas shall comply with the following:
(a)Provide the other parent with a copy of the return tickets for travel no less than 14 days prior to the proposed travel;
(b)Provide the other parent with an itinerary of travel no less than 14 days prior to the proposed travel;
(c)Provide to the other parent telephone contact details upon which the child can be contacted during the travel period;
(d)Ensure that his or her mobile telephone is programmed to accept and make international calls during the period that he or she is overseas and ensures that the child telephone the aprent with whom the child are not travelling not less than every 3 dyas during the time that the child are overseas unless otherwise agreed in writing between the parties;
(e)That travel overseas is limited to term school holiday periods plus either a week prior or a week after until the child turns eight years of age and thereafter is limited to term school holiday periods plus two weeks prior and one week after unless otherwise agreed to by the parents in writing.
(34)That should the child be travelling during the school term pursuant to these Orders, then the parent with whom the child is travelling shall approach the child's school and shall request from the school all school work to be completed by the child when overseas, ensure that work is ensure that work is handed in upon the child's return to school;
(35)That, subject to the following order, that each parent can only travel overseas with the child twice per year.
(36)That upon providing the father with 24 hours notice the mother be permitted to travel with the child to New Zealand for the purposes of a family emergency, including serious illness, hospitalisation or death and;
(a)That such period that [X] is to spend outside Australia is limited to one week.
(b)That if the child's passport is in the possession of the father that he shall provide to the mother the passport immediately
(37)That once every three years the mother be permitted to travel to overseas with the child over the Christmas period with such travel incorporating the child's birthday, and that the mother shall offer makeup time to the father.
The evidence of the parties
The father was 36 years of age at the time of hearing and is of Country M Australian heritage. The mother was 34 years of age at the time of hearing and is of Country H heritage, though having been born in Country N.
The mother together with her younger brother and her parents migrated to New Zealand from Country H in 2003. The mother finished her high school education and obtained a bachelor’s degree at university in New Zealand and in 2010 she moved to Australia looking for job opportunities and has been a resident in Australia ever since. The mother has been back to Country H twice since migrating, in 2004 and 2011. The mother’s maternal grandmother, aunt and two cousins reside in Country H.
The father resides with the paternal grandparents at their home in Suburb L and the mother resides with the child at a unit in Suburb O – adjoining suburbs between Suburb P and Suburb K in Sydney.
The father is in full-time employment as a professional and the mother is in full-time employment as an administration officer.
The parents agreed prior to the final hearing that the child will commence kindergarten in 2023 at a L Primary School. When asked by Mr Finch in cross examination if he had any objection to the child attending before and after school care once he begins school attendance the father replied, “No.”
The parties met in 2014 and commenced cohabitation in 2016 at a rental unit in Suburb Q. When the lease on that unit expired in February 2017, the parties moved in with the father’s parents at their home at Suburb L.
The child was born in 2018 while the parties were still living with the father’s parents. When the child was born the father took two weeks paternity leave and the mother “had around 43 weeks off on [maternity] leave” and returned to work on 5 November 2018 three days a week, after a trip to New Zealand to introduce the child to her family there towards the end of her maternity leave. In January 2019 the mother commenced four days a week at her employment. Once the mother went to work the child commenced attending day-care Monday to Wednesday and on Thursday he was cared for by his maternal grandmother once the mother started working four days a week in mid-January 2019.
The child has been to two childcare centres, initially R Early Learning Centre at Suburb K from 5 November 2018 until 23 December 2020, and then from 4 January 2021 at S Early Learning Centre at Suburb K, later renamed T Early Learning Centre. At the time of the hearing the child was attending nine days a fortnight at the childcare centre.
In December 2018 the parties and the child moved out of the paternal grandparents’ home and into a rented two-bedroom apartment in Suburb O.
The father says in paragraph 17 of the father’s first affidavit:
I acknowledge that [Ms Manalo] did more in respect of looking after [X] in the first six months of his life, which was a product of me having to work and being the “breadwinner”.
He gives evidence of assisting the mother with the care of the child whenever he was home from his employment and he also gives evidence of the significant assistance provided to the parties by the paternal grandmother up until the parties separated.
The parties separated on either 27 March 2019 (father’s evidence) or 2 April 2019 (the mother’s evidence). The father moved back to reside with his parents at Suburb L and the mother and the child continued to live in the Suburb O property. Both parties were living in those premises at the time of the final hearing.
Following separation the parties entered into an informal arrangement that lasted a few months whereby the child was dropped by the mother to the paternal grandmother between 7:30AM and 8:00AM each Thursday, with the father spending time with the child from about 3:30PM when he finished work until the child was collected by his mother at about 6:30 PM. The father also spent time with the child for about three hours on some Sundays. The father says that on a number of occasions the mother allowed the child to stay overnight with the father.
When the parties separated the father continued a regime that had prevailed prior to separation of depositing $800 each week into the parties’ joint account with Bank U until about May 2019 when the mother sought and obtained an assessment of child support payable by the father under the applicable legislation. On receiving the notice of the assessment the father ceased the $800 per week payments into the joint bank account and began to pay child support as assessed at $223.44 per week from 29 May 2019. The father asserts that the mother asked him to continue to pay $800 per week into the joint account, which the father refused, and concurrent with the time of that discussion the mother ceased allowing the father to spend time with the child on Sundays. At the time the father completed his first affidavit in November 2021 he was paying child support assessment of $427.05 per week.
The father commenced these proceedings on 6 June 2019, seeking an urgent watch list order, which was made on 12 August 2019, together with consent interim parenting orders as outlined earlier in these Reasons.
On 18 August 2019 the mother ceased complying with the interim order of 12 August 2019 to drop the child to the paternal grandmother’s home at between 7:30AM and 8:00AM on Thursdays and instead enrolled the child into day-care on Thursdays. That action by the mother formed the basis of the father’s contravention application.
Following the making of the interim orders on 7 December 2020, the father’s time with the child increased in accordance with the steps set out in those orders. From 1 December 2021, the child was spending time with his father:
(a)Each Tuesday from 4:30PM until 7:30PM;
(b)Each alternate Wednesday from 4:30PM until Thursday at 6:30PM; and
(c)Each alternate weekend from 3:30PM on Friday until 6:30PM on Sunday.
From the time of those orders, also, the parents communicated principally by use of a communication diary pursuant to those orders.
Up until the making of the 7 December 2020 interim orders, the parties had communicated principally via text messages and occasional emails. The evidence clearly shows that the mother used text messages to the father to convey personal abuse of the father and criticism of his parenting capacity.
The child has ongoing health issues relating mainly to his diet and being affected by some chronic eczema.
In paragraph 65 of her affidavit the mother says:
[X] currently has anaphylactic allergy to eggs, allergies to dust mites and peanuts, and he suffers from severe eczema. [X] is intolerant of salicylates, food preservatives, colours and artificial flavours, as recommended by [X]’s dietician [Ms V] and [Dr W] from the [Y Hospital Allergy Unit] in [Suburb Z].
For the child’s birthday the father seeks that the child be with him from 9:00AM until 6:00PM in each odd numbered year and with his mother from 9:00AM until 6:00PM in each even-numbered year. The mother seeks that the child spend time with the parent who does not have care of the child on his birthday from 10:00AM until 2:00PM. For the same reason as expressed above, I consider the order proposed by the mother is the more appropriate in the best interests of the child.
The parents each propose the same care arrangement for the child over the Christmas period from Christmas Eve until Boxing Day, that is in odd-numbered years with the mother from 4:00PM on Christmas Eve until 2:00PM on Christmas Day with the father from 2:00PM at Christmas Day until 2:00PM on Boxing Day, with the order being reversed in even-numbered years.
The father does not seek any specific orders dealing with the Easter period or with Country H Orthodox Easter Sunday. The mother seeks that the child be in her care from 10:00AM on Good Friday until 7:30PM on Easter Monday in even-numbered years and in the father’s care for those periods of time in odd-numbered years, with the child to be in the mother’s care from 9:00AM until 6:30PM each Country H Orthodox Easter Sunday. Though Easter (not referring to Country H Orthodox Easter) occurs during some part of the school holidays at the end of Term One in about four out of five years, and then on the first or second weekend of the holidays, not the third, I consider that it is appropriate to make specific orders, and I will make the orders as proposed by the mother but I will reverse the order proposed by the mother so that that Easter period will be spent with the mother in odd-numbered years so as to align in as far as possible with the child spending the first week of the Term One school holidays with the mother in odd-numbered years.
I will make the order sought by the mother that the child is in her care from 9:00AM until 6:30PM on Country H Orthodox Easter Sunday as I consider such an order to be in the child’s best interests as part of his engagement with his Country H cultural heritage.
The father proposes that any changeovers that do not occur at the child’s school or preschool occurs at the McDonald’s Family Restaurant at J Street, Suburb K, or is otherwise agreed in writing between the parties. The mother proposes that any changeovers not occurring at school occur by the father or his nominee collecting the child from the mother’s place of residence at the start of his time and then returning the child at the mother’s place of residence at the end of his time until the father has obtained his own accommodation separate from his parents’ home and once he has so done, the mother or her nominee collect the child from the father’s place of residence.
I consider that it is in the child’s best interest that his transition between his parents be on ground as familiar to him as possible, and if it occurs at one or other of the parents’ places of residences, or both, he can leave the front door and join the other parent at the front gate – for a unit block leave the common entrance of the building and join the other parent at the boundary entrance of the property, so minimising the necessity for the parents to come face-to-face at such changeovers, being mindful of Dr D’s evidence during cross examination by Ms Treherne for the father that based on past experience “changeovers will be a problem time”. Changeovers occurring at McDonald’s restaurants either necessitate parents coming face-to-face to complete the child’s transition in safety, either in the car park or inside the restaurant, or the child having to traverse a distance between each of the parent’s cars, which I consider to be unsafe and therefore not in the child’s best interest at his age.
I find that the appropriate order in relation to changeovers that do not take place at the child’s school is that they take place by the parent into whose care the child is passing, collecting the child at the place of residence of the other parent, unless otherwise agreed in writing, with either parent being able to have a nominee attend such changeover on their behalf. All changeovers that occur by delivery of the child to, or collection of the child from, school or preschool should be attended only by the parent into whose care the child is passing. This gives the child a full day of school or preschool attendance between transitions.
In relation to the parties competing proposals for overseas travel by the child, I have already made findings when considering the additional considerations in section 60CC above. The father seeks an order that places the child on the Airport watchlist and restrain the mother from removing him from Australia except for the purpose of travelling only to New Zealand on one occasion each six-month period, on certain conditions. The father does not seek an order under section 65Y(2)(b) enabling him to take or send the child outside the Commonwealth of Australia without the consent of the mother. The effect of the order the father seeks is to prevent the mother taking the child outside of Australia except for travel to New Zealand once in each six-month period, and to leave both of the parents to the requirements of section 65Y for any other travel by the child outside the Commonwealth of Australia.
The mother seeks an order that would allow either parent to travel overseas with the child in compliance with certain conditions of notice of notifications on two occasions each year, with an additional order providing for the mother to travel with the child to New Zealand for the purposes of an emergency family matter on giving 24 hours notice to the father, with such travel being limited to one week. The mother also sought an order that once every three years she be permitted to travel overseas with the child over the Christmas period, with such travel incorporating the child’s birthday and the mother offering make-up time to the father.
For the reason stated earlier, I find that the appropriate order is that proposed by the father at order 22 in his Minute of Order (Exhibit A16).
The parents seek different orders in relation to the child’s passports. The father seeks orders that he hold the child’s Australian, Country H and New Zealand (if any) passports and that he have sole responsibility for obtaining further Australian passports for the child. The mother seeks that the parents do all things necessary to ensure the child has a current passport at the equal shared cost of the parents and that she hold the child’s Australian and Country H passports. As the only order relating to overseas travel by the child will be that allowing the child to travel with the mother to New Zealand once every six months, I consider that it is in the child’s best interest that the mother retain his passports. As I said earlier, in the event that the father wishes to travel overseas with the child or the mother wishes to travel overseas other than to New Zealand then the parent intending to so travel will need to comply with the requirements of section 65Y of the Act and if consent is not forthcoming seek orders.
The mother seeks an order that commencing in 2023 the child be enrolled in Suburb L Public School. The parents gave evidence that they have reached agreement that the child will attend that school. I do not find there is a necessity to make an order to that effect.
The mother seeks a specific order for phone-call/video communication between the child and the non-carer parent at specific times, initiated for the child by the carer parent. The father seeks an order that each parent be permitted to have reasonable communication with the child via the child’s “Watchi pals” and/or other technology at all reasonable times, but not before 6:00AM or after 7:00PM and “not more than two occasions, every second day, unless otherwise agreed”, together with an order requiring the smartwatch or other technology to be either worn by the child in such place that the child will be aware of a call being made. I find that the order proposed by the mother is more in keeping with the child’s best interests in that it provides certainty as to when the child will have communication with the non-carer parent, but leaves the child free to initiate communication with the non-carer parent through the smartwatch if he so chooses.
The father seeks an order that in the event the child expressed the wish to speak with the non-carer parent, the carer parent “must facilitate any reasonable request by the child of such communication”. I do not consider that such order is in the best interests of the child as it will compel the applicable parent to accede to the child’s request to contact the other parent in circumstances where the child may be using the request as a manipulation of the carer parent. I will leave it to the judgement of each of the parents as loving and caring parents for the child to decide if a request by the child to contact the other parent by telephone should be facilitated.
The father seeks an order that each parent and such members of the child’s extended family that the parents may invite at liberty, attend all and any school functions and/or extra-curricular activities that parents are in the normal course invited to attend, irrespective of where the child is living at the time. I consider such an order is in the child’s best interest so as to enable both parents to participate with the child in the child’s enjoyment of his school activities and extra-curricular activities that parents are invited to attend, but I consider that such order requires the addition of the requirement that the non-carer parent at the particular time interact with the child only to provide a greeting or encouragement and not attempt in any manner to monopolise the child’s attention or time.
The father seeks an order that in the event the child is not attending day-care or school on a normal day-care/school day for any reason, the carer parent is to contact the non-carer parent by no later than 10:30AM on that day to inform them of the reason for the child’s absence. I do not consider that such an order is appropriate in the best interests of the child, with decisions relating to a child’s day-to-day care being in the hands of the carer parent pursuant to section 65DAE of the Act, and such an order would make the carer parent “answerable” to the non-carer parent – this is a recipe for conflict. Any conflict between the parents is not in the best interest of the child.
I find it is in the best interests of the child to make orders 23 to 26 and 28 sought by the mother in her Minute of Orders (Exhibit R5) relating to both parents having equal opportunity to obtain information in relation to the child’s education and health matters and the parties keeping each other informed of any changes to their contact details.
Both parents seek injunctive “non-denigration” orders and the father seeks an order restraining the parties from showing the child any Court documents and/or documents relating to these proceedings and from discussing the content of any Court documents and/or document relating to these proceedings with the child. I will make those orders as they are patently in the best interests of the child to shield him from parental conflict and from involvement in the parental dispute in these proceedings.
In conclusion
From the time of the parties’ separation until late 2021, the mother conducted herself in relation to the child’s relationship with his father in manners not in the best interests of the child. The mother then took steps to educate herself. She was, I find, profoundly affected by what she read in Dr D’s report, and began conducting herself in a far more appropriate manner. Any reversion by the mother to her old approach to co-parenting would be a serious retrograde step in relation to the best interests of the child.
I make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 29 November 2022
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