Fenrich and Safor

FAMILY COURT OF AUSTRALIA

FENRICH & SAFOR

[2020] FamCA 29

FAMILY LAW – CHILDREN – final parenting orders – where the operation of previous final consent orders gave rise to issues of interpretation inflaming the intractable conflict between the parents – where the children’s time with the father is subject to the father’s availability under a work roster – where the Court prescribes periods of time subject to the father’s availability.

Family Law Act 1975, ss. 60B, 60CC, 61DA, 65DAA

Fenrich & Safor [2016] FCCA 723
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Fenrich

RESPONDENT:

Ms Safor

FILE NUMBER:

BRC

6968

2012

DATE DELIVERED:

29 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

25, 26 and 27 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S Downes

SOLICITOR FOR THE APPLICANT:

Pullos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT:

Evans Brandon Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr M Taylor

INDEPENDENT CHILDREN’S LAWYER:

Ms J Lilley

Legal Aid Queensland

Orders

That all previous parenting Orders be discharged

Parental Responsibility

That the mother shall have sole parental responsibility for the children, X (“X”) born … 2007 and Y (“Y”) born … 2009 ( together “the children”), save for that, except in case of emergency, prior to making a major long term decision the mother will:
(a)notify the father by email as far in advance as possible of the decision to be made, of her proposed decision and reason/s for this, provide a time frame in which she intends to make the proposed decision, and state a timeframe in which the father would need to respond to her if he wished to do so;
(b)permit the father to respond to her by email within her stated timeframe with his own proposed decision and his reasoning for this; and
(c)consider any proposed decision and reason/s advised by the father, with respect to the children’s best interests, before notifying the father by email of her ultimate decision and reasoning for this.
That if the mother is required to make an emergency decision about a major long-term issue regarding the children, then the mother will provide emailed notice of her decision and reasoning for this to the father as soon as possible thereafter.
That the mother shall be solely responsible for the daily care, development and welfare of the children when they are spending time with her.
That the father shall be solely responsible for the daily care, development and welfare of the children when they are spending time with him.

Lives With

That the children shall live with the mother.

Spend Time With

That the children shall spend time with the father to the greatest extent possible where the father is not working (by any absence or leave from work available to the father via his employer) and is available to spend time with and care for the children, or as agreed between the parents in writing and otherwise as follows:
(a)During school terms, on each alternate weekend for a period of up to five nights occurring between after school (or 3.00pm if a non-school day) on Wednesday until before school (or 9.00am if a non-school day) on Tuesday of the following week, but if the father will not be available throughout the entirety of that period of time, then he shall give notice by email to the mother no less than seven (7) days in advance of either:
(i)his non-availability throughout the entire period; or
(ii)his more limited availability during the period,
in which case, the children will spend such time or times with the father as the father states that he is available to spend and care for the children during the period for greater than a single night, even if this occurs in multiple blocks.
(b) During school holidays:
(i)for up to nine weeks of the children’s total available annual school holiday time, provided that:
A.the father nominates to the mother by 4.00pm on 31 January each year the school holiday dates he seeks for the children to spend time with him to occur in periods not already preserved as holiday time the children shall spend with the mother under Order 8 for the twelve (12) month period ending 31 January the following year using his annual or other leave entitlements; and/or
B.the father notifies the mother no less than twenty-one (21) days prior to the date of proposed holiday time of any additional holiday time he may secure using his balloted leave for periods not already preserved as holiday time the children shall spend with the mother.
The following periods shall be preserved as time over the holidays which the children shall spend with the mother:
(a)the first week of the end of term one (1) school holidays, commencing from after school or 3.00pm on the Friday on which the school term concludes or immediately following its conclusion and concluding at 3.00pm on the following Friday;
(b)the first week of the end of term two (2) school holidays commencing from after school or 3.00pm on the Friday on which the school term concludes or immediately following its conclusion and concluding at 3.00pm on the following Friday;
(c)the first week of the end of term three (3) school holidays commencing from after school or 3.00pm on the Friday on which the school term concludes or immediately following its conclusion and concluding at 3.00pm on the following Friday; and
(d)the first two weeks of the December/January school holidays commencing from after school or 3.00pm on the Friday on which the school term concludes or immediately following its conclusion and concluding at 3.00pm on the Friday two weeks later and the final week of the December/January school holidays commencing at 3.00pm on the Monday at least seven days prior to the children’s return to school.
Notwithstanding the provisions of above Order 7, the children will spend time with the parents for special occasions for the children as agreed between the parents and otherwise including but not limited to:
(a)in 2019, and each alternate year thereafter, the children will spend time with the mother from 5.00pm Christmas Eve until 9.00am Boxing Day;
(b)in 2019, and each alternate year thereafter, the children will spend time with the father from 9.00am Boxing Day until 5.00pm on 27 December;
(c)in 2020, and each alternate year thereafter, the children will spend time with the father from 5.00pm Christmas Eve until 9.00am Boxing Day;
(d)in 2020, and each alternate year thereafter, the children will spend time with the mother from 9.00am Boxing Day until 5.00pm on 27 December;
(e)for Father’s Day, if not otherwise in the care of the father, with the father from 9.00am until 5.00pm, unless otherwise agreed between the parents in writing;
(f)for Mother’s Day, if not otherwise in the care of the mother, with the mother from 9.00am until 5.00pm, unless otherwise agreed between the parents in writing.
That in the event the father is working and is not able to spend time with and care for the children for part or for the entirety of any special occasion time provided for in Order 9 above, then the father shall provide to the mother emailed notice of that as soon as possible in advance, in which case the children will remain with the mother and the mother will facilitate a telephone call for the children to the father to commence between 4.00pm and 7.00pm for that occasion.

Telephone Communication

That in the event that for any other reason either parent is not available to spend time with and care for the children for part or for the entirety of any special occasion provided for in Order 9 above, then the parent with the care of the children in that date will facilitate a telephone call for the children to the other parent to commence between 4.00pm and 7.00pm for that occasion.
That the parent with the care of the children will facilitate a telephone call for the children to the other parent at any reasonable time the children express a wish to have that.
That the parent in whose care the children are in will facilitate a telephone call for the children to the other parent on Sundays to commence between 4.00pm and 7.00pm.
That the parents will each provide the children with their privacy to enjoy telephone communication with the other parent, and the children’s calls must not be recorded by either parent.

Changeovers

That changeovers for the children when before or after school will occur at school, and otherwise as agreed between the parties in writing and if not agreed then the parent (or their nominee) who is about to spend time with the children will collect the children from the home of the other parent.

Schooling

That notwithstanding the provisions of Order 2 above, the children will remain enrolled at the B School for their primary and secondary education, and neither parent may cancel the children’s enrolment or enrol or commence to attend either child at another school without first obtaining the written consent of the other by Order of the Court, and each parent must ensure that the other is maintained on the school’s records as a parent and as an emergency contact for the children.
That these Orders are authority for each parent to contact the children’s school about the children and to discuss the children and to request to be provided with documents about the children (at the requesting parent’s expense, if any) such as photograph order forms and report cards, and to attend at student events and functions at the school to which parents are normally invited.
That leave be granted to each parent to provide a sealed copy of these Orders to the children’s school.

General Medical and Allied Care

That notwithstanding the provisions of above Order 2, the parents will each, save for in emergency, facilitate the children’s attendance at and treatment by a single medical centre/practice, to be selected by the mother and advised to father by email within five (5) days of the date of these Orders to attend with the children at that medical centre/practice and to discuss the children with the practitioners and other staff (including any allied practitioners) and to request information about the children’s attendance and treatment (at the requesting parent’s expense, if any).
That the mother keep the father informed in a timely way by email of the details and particulars of any specialist or allied therapeutic practitioner to whom the children have been referred, and of the details of all appointments and reasons for referral, and the parents each are hereby authorised to discuss the children with such practitioners and to request information about the children’s attendance and treatment (at the requesting parent’s expense, if any).
That leave be granted to each parent to provide a sealed copy of these Orders to the children’s treating medical centre/practice, specialist and any allied practitioner.
That the parent with the care of the children at any time, should either child be involved in a significant medical or other emergency, will notify the other parent as soon as possible by telephone and email, providing full particulars of the nature of the emergency and the details of any hospital or care giver involved.

Notice and Information

That the parents will keep each other informed of the details of their respective residential and postal address and any email address (to be maintained for the purposes of parental communication), and mobile telephone and landline telephone (if connected) numbers and notify in writing by email within

twenty-four (24) hours of any change to these details.

Not to Record, Denigrate or Involve Children

That neither parent will record the children or the other parent without first obtaining the written consent of the other parent with the exception of normal family events and special occasions for the children being photographed and recorded.
That neither parent shall denigrate the other to or in the presence or hearing of the children nor permit any other person to do so.
That neither parent shall discuss adult issues with or in the presence or hearing of the children nor permit any other person to do so.
That the parents will communicate together about parenting matters preferably in writing (by email) or in emergency by telephone or face to face, and will communicate together directly and not through the children, and in the event the parents consider in future their parental communication is becoming conflictual, the parent with that view will advise the other by email of that view, and thereafter the parents will commence to use an online parent communication service such as ‘Our Children’, sharing any associated costs equally and with the mother to select the service to be utilised and to advise the father of that by email.

Triple P

That within five (5) days of the date of these Orders, the father shall register with a program provider of the Triple P program, and thereafter complete as soon as possible the ‘Triple P’ parenting program deemed by the program provider to be age appropriate for the children, and the father will provide to the mother a copy of the certificate issued to him by the program provider evidencing his completion of the program within five (5) days of his receipt.

International Travel

That either parent is permitted to apply for an Australian travel document for the children X born … 2007 and

Y born … 2009, with both parents to do all things and sign all such documents as are necessary to apply for or to renew the Australian travel documents for the children and it is noted that the parent applying for the Australian travel document intends to fund the Application for that document.
The mother will retain the said Australian travel documents for the children, but will release these to the father within one (1) week of his emailed request to facilitate the father’s international travel with the children pursuant to these Orders, the father is then to return the documents to the mother within one week of his return to Australia with the children.
Notwithstanding any other Order, each parent is permitted to travel internationally with the children as follows:
(a)that for any overseas travel with the children, the travelling parent will as soon as possible and not less than twenty-eight (28) days prior to departure:
(i)provide the other parent with an itinerary including a copy of the return travel tickets to Australia;
(ii)all flight and proposed accommodation details;
(iii)travel health insurance policy number and details for the children; and
(iv)contact details for the travelling parent and the children whilst outside of Australia;
(b)the travelling parent shall ensue that telephone communication for the children with the remaining parent and emergency contact can be maintained throughout the travel;
(c)that any overseas travel shall take place during a time when the children are otherwise spending time with that parent.

Dispute Resolution

That notwithstanding above Order 2, if issues arise in the parents’ interpretation of these Orders or about the children’s future needs and views, which the parents are unable to communicate about or to resolve:
(a)either parent may nominate by email to the other parent the names of three (3) Registered Family Dispute Resolution (FDR) Practitioners, plus a public service such as Relationships Australia which shall be additionally offered by the nominating parent, and the other parent shall chose one (1) from the nominating parent’s list within seven (7) days of their receipt of the list and they shall advise the nominating parent by email of their choice;
(b)if the parent receiving the notification fails to advise of their choice, then the nominating parent will choose one (1) from their list and they shall advise the other parent by email of their choice;
(c)the parents will then cooperate with the chosen FDR Practitioner to participate together in arrangements made by that practitioner to attempt to resolve the issues prior to either parent brining further Application before a family law Court; and
(d)the costs associated with FDR shall be shared equally between the parents.

Explanation to the Children

That the parents will liaise with the Independent Children’s Lawyer to make arrangements for the children to attend on the Independent Children’s Lawyer on a suitable date after the release of these Orders to have the Orders explained to the children, and Ms C is requested to be present for this if possible.
That following the Orders having been explained to the children, the Independent Children’s Lawyer is discharged.
That all outstanding Applications are dismissed.

IT IS NOTED:
A.That with the exception of Orders 7, 8, 30, 31 and 32, the remaining Orders are made with the consent of both parents and the Independent Children’s Lawyer.
B.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fenrich & Safor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6968 of 2012

Mr Fenrich

Applicant

And

Ms Safor

Respondent

REASONS FOR JUDGMENT

Introduction

The parents, being the Applicant father, Mr Fenrich, and the Respondent mother, Ms Safor, were in a short relationship which ended on 4 October 2009 – over 10 years ago. Through the course of that relationship, they were blessed with the birth of two children; X, born in 2007 (now twelve and a half years of age), and Y, born in 2009 (soon to turn 11). As I now observe, these children are, indeed, fortunate. This case has identified very few parental deficits in the form of mental health challenges, addiction to illicit substances or alcohol, family violence of a significant nature, strange or concerning parental practices, or other deficits which often a Court like this is required to consider.
Why this case has required over two days of hearing and has resulted in four family reports since the time of separation is the essential dynamics of the parents’ incapacity to date to cooperatively co-parent – a situation for which they lay the blame substantially upon the other parent. As I identify, the issues that I have been required to determine have narrowed significantly since the commencement of the proceedings, but are still vigorously contested. I pay tribute to the Counsel who appeared before me in this case; Mr Taylor for the Independent Children’s Lawyer (“ICL”), Ms Downes for the father, and Mr Shoebridge for the mother, for both the way they caused negotiations to result in some matters being consented to and in particular, the way in which they cross-examined and ran the case for their client.
I had, at the start of the proceedings, identified a concern I had that the trial, forensic and adversarial to some degree, should not, if possible, further erode the levels, minimal as they are at the moment, of mutual trust and respect each of these parents hold for the other parent. Within proper boundaries, Counsel did their best on their instructions to observe that invitation from the Bench.

Contextual history

As earlier indicated, the parties commenced cohabitation in 2005. At that time, the father was then and continues to be a professional. His role involves, at a senior level, working within Australia and international locations. The mother was initially a hospitality assistant, but has had further training and is now engaged as an educator. She is currently engaged in further study, the benefit of which would be if employment is procured, greater holidays and possibly a wage increase.
Although the parties separated, as I have already indicated, over 10 years ago in October 2009, within a few months of separation the parties were able to enter into a Binding Child Support Agreement (“BCSA”). Whilst the proceedings before the Court initially included an issue about the setting aside of that Agreement and/or enforcement of that Agreement, again, to the parties’ credit and no doubt with the benefit of their legal advisors, I have been informed that the Court is not required to make any findings about child support issues; that the parties have reached an agreement as to the payment of some alleged arrears of child support under the current BCSA, and have agreed on a new agreement which they will ask the Child Support Registrar to register for the future child support obligations of the parents.
Earlier proceedings for parenting arrangements, noting that the children were young at the time of separation (X, two years of age and Y, nine months), resulted in final consent parenting Orders made by a Judge of the Federal Magistrates Court of Australia (as it then was) on 20 June 2013 (“the said Orders”) which are marked Appendix One to these Reasons. Interestingly, despite the high levels of parental conflict, mistrust and disrespect, the said Orders have not been substantially varied since then, other than what appears to have been a slip rule amendment to one Order made 10 July 2013. The said Orders have therefore been the basis for the parenting arrangements between the parties and have, to a large degree, shaped the time (although disputes as to interpretation certainly arose) through a number of the children’s normal developmental stages, including the children attending school.
From the evidence, including significant correspondence between the parties and/or lawyers at times acting for the parties, it is apparent that many areas of conflict arose on the interpretation or the application of the Orders. I have received evidence, some of which was the subject of cross-examination, including allegations of an alleged physical altercation between the father and the maternal grandfather in January 2014; disputes about lunchboxes, uniforms, and often financial matters; and ongoing, as I say, interpretation issues.
A combination of these factors, it seems to me, caused the father, in June 2015, to file an Application to vary the said Orders. As was explored during cross-examination by Counsel for the father, the mother opposed the father’s Application that the Orders be revisited and in Affidavits filed during that period, the mother swore that the said Orders were, in effect, working well. For Reasons delivered by a Judge of the Federal Circuit Court of Australia on 5 April 2016 (see Fenrich & Safor [2016] FCCA 723), his Honour effectively, after considering the principles in Rice & Asplund (1979) FLC 90-725, ordered that the father be granted “leave to reopen the proceedings”.
Consequent upon the proceedings being “reopened”, where, in effect, they were merely allowed to proceed, a family report ordered under Section 62G of the Family Law Act 1975 (Cth) (“the Act”) by Family Consultant, Ms D, was provided in June 2016. Although Ms D’s report was not before me formally and whilst at times referred to in cross-examination, Ms D was not required for cross-examination as a result. It is noteworthy that as a result of the actions of the parties in the Court after the family report of Ms D, the Court ordered the parents and the children engage in “reportable” family counselling with Psychologist, Ms E, and on a further date, ordered that a single expert Paediatrician be appointed (Dr F) to deal with a dispute that the parents apparently had about whether or not the child, X, was on the spectrum of children with a diagnosis of Autism Spectrum Disorder (“ASD”) or Asperger’s.
By August 2017, the reports of Dr F that the child’s behaviour did not support a diagnosis of ASD, seem to have been accepted by the parents. On 19 August 2017, the Federal Circuit Court of Australia appointed an Independent Children’s Lawyer (“ICL”) and transferred the matter to the Family Court of Australia. The only basis upon which it was transferred at the time was the intractable conflict between the parties. From the time the matter entered into the case management pathway of the Family Court of Australia, this case has been managed in the resolution phase by a Registrar of this Court.
Orders were made that resulted in the ICL procuring reports from senior Family Consultant and Social Worker, Ms C. The first report resulted from interviews on 15 May 2018 and the report is dated 26 June 2018. The report is relied upon by the ICL. One of the most notable aspects of the report was that at the time of the interviews in May 2018, the children did not enthusiastically engage and were clearly uncomfortable in being interviewed about their relationship with their father. At least from that point, if not earlier, the father’s concerns about the mother’s behaviour causing the children to be, as he described it in his material, “alienated” from him gathered some momentum. Clearly, with such a view being formed by the father, the disputes that have continued in relation to the said Orders only intensified.
There was an event on 27 June 2019 where some evidence was produced that related to a dispute as to interpretation and where the children should be. It involved a third party. On 27 September 2019, the ICL met with the children and, I would infer, that with the benefit of that meeting with the ICL Ms Lilley (a very experienced ICL) when the children presented for interviews on 8 October 2019 with Ms C (resulting in the subsequent report dated 24 October 2019), the children more readily engaged with the report writer and their views and feelings were captured in the family report on that second occasion.
The trial between the parties commenced on 25 November 2019.

Statutory pathway

In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

The competing proposals of the Applicant father (set out in his case outline filed 18 November 2019) and by the Respondent mother (set out in her case outline also filed 18 November 2019) identified a number of issues in dispute, additional to the child support issue which was ultimately resolved. What is apparent however, and became abundantly clear during the course of the trial and in filed submissions, was that these parents do not substantially disagree about the actual nature of the parenting arrangements broadly in the children’s best interests, but that they do disagree on how they are to be implemented and the degree of flexibility that may be required to allow the implementation to take place.
As the said Orders set out, the process by which the father was to spend time with the children was very much shaped by a roster that his employer requires to be applied to all those professionals employed by the company. It is trite to observe that the roster, which finds some form of pictorial representation in the evidence of the father (with colouring), is not designed with the needs of children in mind, but, quite properly and understandably, designed in meeting the operational needs of the company whilst at the same time seeking to take into consideration the personal circumstances of the professionals and other staff, no doubt.
Although the issue of parental responsibility was identified in the ultimate case outlines as an issue, by final submissions, the parties agreed that the mother should have an order for sole parental responsibility for the children, but with a specified process set out as to how the exercise of that responsibility to make decisions as to major long-term issues should be undertaken.
At issue is not where the children should live. The parties agree that the children should live with the mother. During school terms there is, in fact, not even a disagreement, as is so often the case in high conflict parenting disputes, as to the amount of time that the children should spend with the father.
Numerically speaking, the parents agree that it would be in the best interests of the children that the children spend, during school terms, effectively five nights in every 14-day period. It is not even disagreed that ideally, that time should include a mixture of weekend days and nights and nights during school weeks.
There is ultimately no significant dispute between the parents as to school holiday time with each parent. As the evidence unfolded, it became obvious that at this point, the mother’s capacity to take holidays is limited to four weeks a year, but it seems by negotiation with her employer, she could make herself available for up to six weeks a year to care for the children. The school the children attend however has, and is likely to continue to have, a schedule which provides for the children to not be at school for 15 weeks a year; namely:
a)two weeks at the end of term one;
b)three weeks at the end of term two;
c)two weeks at the end of term three; and
d)eight weeks at the end of term four (Christmas/New Year school holidays).
By final submissions, a debate took place as to what words might allow the father to maximise his time with the children during, effectively, the nine weeks that the mother would not be able, herself, to be on school holidays with the children. I deal with that issue below. It follows from this analysis and background that what really troubled these parties and consumed almost the entirety of the Court’s attention and final submissions is to how it is possible to articulate an order in writing that allows the almost agreed benefits the children should receive from the parenting orders to operate effectively in a low-trust, high-conflict environment as currently exists and is shaped by the father’s work roster.
I can understand why both parents, having dealt with the father’s roster with all its challenges for now over 10 years, have at times become very frustrated. The father is frustrated by what he sees as the limits of his flexibility, reliant, he says in his evidence, on the operational needs of the company and the capacity for the company to either accept or reject certain bids for time when he would otherwise then be available for his children. He also believes the mother fails to respect these restrictions in circumstances where he still is required, and it seems, agrees, to pay substantial amounts from his salary for child support (both periodic and of assistance in the private schooling of the children). For her part, the mother, whose work situation is more standard, has felt either controlled or at times manipulated, by being unable to know with any certainty, she says, when the children will be in her care and when she may be able to plan for activities for them.
Lying at the heart of the mother’s concerns, it seems to me, is the clear sense she has that despite the parties’ relationship as an intact couple coming to an end over 10 years ago, she still feels that her time is being controlled by the father’s roster and/or his interpretation of the said Orders. There are other issues of importance but less significant than these core orders which the Court has heard evidence on and is required to make a determination. In this case, it is my view that the issues in dispute are best examined through the matrix of the relevant primary and additional considerations set out in section 60CC(2) and section 60CC(3) of the Act. I do that now.

Primary considerations

The parties’ proposals and broad agreement about time, as accepted by the Court, reflect that both parties accept that X and Y will benefit from having a meaningful relationship with each of the parents. It is worthy of note, that, despite separating some 10 years ago, neither party has re-partnered such that they would say, and the Court would accept, that both parents are intensely focused on the time they spend and the opportunity that time allows for them to play the role of a parent and to improve their relationship and guide their children.
The Court is required to consider under section 60CC(2)(b):
“…the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.”
The report of Ms C, the evidence overall and the final submissions of the ICL, with which I agree on this point, are that there are no significant risks to these children of being exposed to physical abuse, neglect or family violence, but that the greatest risk to these children, of which they are aware, arises from the ongoing conflict and different views the parents have in relation to their parenting, to which the children are being exposed. In this respect it is worthy of note that these children would have no cognitive recollection, bearing in mind their age at time of separation, of their mother and father ever parenting under the one roof or probably cooperatively. Such an environment, especially for good and capable parents as these parents I find are, can distort so much of the children’s understanding of their parents.
The Orders which I make have as a very significant focus the hope that they will reduce the capacity for these parties to find things to be in conflict about. The history shows they have both, in my view, at times identified and pursued their agendas not always (although they would express that they were) with the child’s best interests in mind. Their evidence at times identified, in my view, that they saw it in terms of their rights and their time and they were driven to this point by the nature of the ineffective communication, at times, between the parties. There are and never have been, on the evidence, family violence orders in existence.

Additional considerations

Some attention was given in the cross-examination of Ms C and in submissions as to how the views of the children, as most recently expressed, should be interpreted and weighed in the decision I am required to make. In that regard, it is pleasing, as Ms C acknowledged herself, that the relationship between the children and the father had so improved between May 2018 and October 2019 that not only were the children prepared to express a view and articulate their concerns and feelings, but that they did so knowing that it is likely that their parents, who would read the report, might be unhappy with things they say. Much of the submissions I received in the case in relation to the children’s expressed wishes was said to be within the complex dynamic of a competition between certainty (as the mother says is important) so as to enable her to put in place routines and structures as the primary carer for the children’s benefit and the children’s clear desire to spend time with their father.
I indicated to Counsel that to assist me in understanding the context in which the children’s wishes should be considered it would be most helpful for the Court to have an idea as to how the current Orders have manifested in actual time spent by the children with the father. After final submissions and with the consent of all Counsel, Exhibit 7 was produced. That Exhibit identifies, in my view, for the period of March 2019 to November 2019 the following:
a)Over the period of some nine months, the father spent at most a total of twelve days in one month and at a minimum four days in one month with the children;
b)The breakdown of the time the children spent with the father over the period, as agreed by the parents, was as follows:
March            twelve days
April              two days        (plus 6 of 16 days of holiday time)
May               ten days
June               seven days     (plus 0 of 2 days of holiday time)
July                four days       (plus 0 of 14 days of holiday time)
August           ten days
September     four days       (plus 5 of 10 days of holiday time)
October         nine days      (plus 0 of 6 days of holiday time)
November     eight days
c)The time the children spend with their father most often occurs in a block of either two nights (on thirteen occasions) or three nights (on twelve occasions). On some four occasions time was spent for just one night. However, on two occasions more significant blocks of time of five nights or more occurred.
What is clear, however, from the analysis of Exhibit 7 and a feature of the fact that the father’s 28 day roster means that there is an uncertainty until the roster is both circulated and bids for time approved or otherwise, is that there was no absolute certainty of the days the father spends with the children. In my view, this uncertainty continues and was manifest by the discussion I had at the end of submissions, bearing in mind the trial concluded on 27 November 2019, as to what were the arrangements for Christmas Day and the Christmas school holidays, which for these boys was to commence in just over seven days’ time. At the conclusion of the submissions, when Judgment was reserved, the required clarity was not available and, in my view, consistent with all the evidence, a large aspect of that lack of clarity arises from the challenges that the father faces with the roster within which he is required to operate. Whilst this judgment was reserved, the parties informed the Court that an agreement had been reached about the school holiday time and Christmas Day.
It is, however, an uncertainty which the children expressed to Ms C that they find at times challenging and do not like. Ms C made the observation, correctly in my view and one which I adopt and accept, that these boys do not have the maturity and understanding of the total context to, as an adult may claim to be able to do (although these parents may not have been able to achieve this individually), prioritise the two competing issues of routine and certainty with the need for these children to spend the agreed ten nights in every 28 day cycle with the father. In the ultimate analysis I take from the children’s wishes nothing that helps me in articulating the ultimate order, other than they wish to primarily live with the mother; they wish to spend regular time with the father, including holidays, and they would like some greater certainty than has been manifest over recent times.

I also find, as I put to Ms C, as the children enter secondary school, routine for the management of study/assignment obligations and extra-curricular and peer needs, increases in importance.
The primary relationships for these children are with their parents. I accept there are extended family who would have relationships with the children, but very little evidence in respect of those relationships was offered to the Court. The children are now of an age where they are not “attached” to any parent in preference to the other parent, but the nature of the care arrangements has meant that they spend more time in the mother’s care than the father’s and that has allowed the mother, in my view on the evidence, to probably be slightly more attuned to the children’s emotional feelings and views. It also seems, as I develop shortly in these reasons, that these parents are very different and they, therefore, parent differently.
I do note that the views expressed to Ms C confirmed that X and Y have an important and valued relationship as siblings. I suspect that, like any siblings, there would be at times conflict between them, but considering there is just over 18 months’ difference in age between the two boys, their long-term relationship is critical to their happy development and future sense of identity. The parents’ evidence, in my view, revealed that they understood that. I am satisfied that the parents have generally taken the opportunity to participate in making decisions to spend time and communicate with the children, although the father would assert otherwise.
He believes he has been isolated from some decision making. In my view, he has always wished to be involved in decision making, but the poor and ineffective communication has meant at times that necessary and required decisions to be made have generally been made by the mother. However, the father does not say to the Court, and his agreement to an order for sole parental responsibility being provided to the mother reflects that he has not, seriously challenged the quality of the past decisions made by the mother. Rather, his concern has been that he wants to “have a say” and at times felt that opportunity has not been given to him. Notwithstanding an allegation of failure to pay some of the benefits under the previous Child Support Agreement, I am satisfied that both parents have fulfilled their obligations to maintain the children.
I deal with section 60CC(3)(d), namely the likely effect of any changes in the children’s circumstances, in my discussion as to the form of orders I propose to make. Suffice it to say that the changes in many ways are minimal because, primarily, the children will continue to live with the mother; will spend, hopefully, alternate weekend periods or around weekends with the father and extensive school holiday time. The father does not propose, for example, that there be a change of residence or any other significant change to the arrangements currently existing. Although the parties live in separate parts of the J Region (the mother at Suburb G and the father at Suburb H), there are no significant practical difficulties or expenses in the children spending time and communicating with a parent.
Mr Taylor, on behalf of the ICL, submitted, and I accept (and this was not seriously challenged in submissions or on the evidence by either of the parents) that each of the parents has the capacity to provide for the needs of their children, including emotional and intellectual needs. Both value education. That is reflected in their continuing agreement that the children be educated in private schooling in which they both have the opportunity to participate as a supportive parent.
I accept that, at times, the father has not taken up every opportunity to, for example, engage in parent-teacher interviews and/or support the children’s homework obligations. The last issue is an issue that has, at times, concerned the mother. However, in circumstances where the father’s time has moved about quite a bit I can well understand why he may not wish to spend hours of his more limited time with the children engaged in school homework and the like. However, he wishes to do so into the future and he understands that as the children (and in this regard X is identified by the parties as having some scholastic ability and is likely to benefit from support from the parents) the Orders I make will provide the opportunity for the father to do so. The mother is currently studying part-time whilst working full-time. The children would see in her behaviour no doubt a commitment to time management and the importance of study and preparation.
I am prepared to infer that the father as an experienced professional who is required to continue to maintain high-level skills because of the responsibilities of employment also has a skill set, perhaps in the areas of maths and physics and the like, which could well assist these children because of his understanding of those concepts. At the very least, the father’s role, it seems to me, also involves high discipline as to scheduling, time management and decision making. These are traits which the father can demonstrate to the children and which the mother was prepared to concede within a framework of the father being an excellent male role model for these children. It was a concession well-made and properly made.
In that respect, the father also was prepared, I think properly, to acknowledge the mother’s skills as a parent, her commitment to the children’s needs and their extra-curricular responsibilities. It was, perhaps, one of the highlights of this trial that these parents did not have to be prompted about positives of the other parent, but were able to offer positive reflections on the other parent’s capacity so willingly.
The Court is asked to consider the attitude of the parents to the children and the responsibilities of parenthood. In my view, apart from the inability, at times, for both parents to separate at different stages of the post-separation journey the best interests of the child from the understandable desire to achieve what they wish to have, there are no significant areas of concern demonstrated in the evidence as to their attitude to the responsibilities of parenting.
I accept on the evidence that the father may be a more rigid (but in no sense abusive) disciplinarian. He clearly articulated that where there is modification of the child’s behaviour it is best achieved by there being consequences. I am not saying that the mother is “less strict”, but my impression of her evidence overall is that the father is more direct in his guidance and boundary-setting then may be the mother. Again, this different parenting style of each parent is within range and not a matter of great concern to the court. It should be noted, however, that these boys as they reach teenager level and beyond will be alert to and may not be able to resist the capacity of playing a parent’s different parenting style against the other parent’s parenting style.
These parents’ communication will need to improve to ensure that the children’s perhaps sometimes innocent (perhaps not) subtle manipulation of their parents’ desire to please does not develop into a fundamental conflict of something which is, in respect of the issues, trivial. That is best avoided by these parents developing a high level of respect for the quality of parenting (although different) offered by the other parent.
I have already indicated that there are no family violence orders in this matter.
Section 60CC(3)(l) requires the court to consider in determining the best interests of the child:
“…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.”
Considering the complexities of the said Orders and the dynamics of the parties’ relationship it is, perhaps, a little curious that this matter has not come back to the Court more often. Certainly, the parties have spent significant amounts of money and time seeking to resolve issues along the way. The orders which I pronounce are designed to limit the capacity of the parents to find an issue to dispute, as a basis for returning to the Court.
These children are very alert to the conflict between the parents. I say that not because I make a finding, which I do not, that either parent has sought to influence the children. I know this is a strong view held by the father.
As I have indicated, the father indicated to Ms C that alienation was occurring. Ms C, at paragraph 122 of her second family report, expanded on what she says are the criteria for alienation and explained why, in her analysis, alienation is not identified in this case. I agree with her analysis and her opinion in respect of that issue. However, that is not to say that, at times, these children may not align with the view the mother is expressing because not only may they agree with her, but because, as a primary carer, it reduces the conflict between them and their mother in their primary household. If alienation were occurring there would not have been the improvement in the relationship between the boys and their father observed by Ms C between the two family reports and, further, the clear expressed desire manifested by the children’s actions that they wish to spend regular time.
I do agree, however, with Ms C that there are elements of the father’s presentation and his consistent reliance upon the challenges in the roster, for which he has limited capacity to change he says, that support a finding that he is (see paragraph 134) “incapable or unwilling of considering a perspective other than his own”. This does not occur on every occasion, but has, in my view, been the foundation for a number of disputes in the past. At paragraph 146 Ms C expressed the view explored during cross-examination that time needs to occur “in a structured way”. I agree with that proposition. However, in this case if observing a structured approach significantly limits or reduces the time the children could spend with their father then, on balance, a solution needs to be found by the Court.

The father’s roster

Mr Shoebridge identified, he says, in the way that the case was run by the father some limitations on the Court being able to make a finding about some aspects of the father’s roster. It is true that only with the Court’s leave was there the evidence in the father’s Affidavit filed on 15 November 2019 about aspects of his roster. It was not until the father was given the opportunity through questioning from the bench to identify his entitlements per se as an employee to long leave and to recreational leave that it emerged that the father had available to him each year six weeks recreational leave and that, in respect of his 17 year employment with the one company, he has accumulated additional leave, which he has not taken (he says 8.7 weeks) and long service leave, which he has not taken (currently 14.95 weeks).
When it was inquired of him as to why he had not taken long service leave, for example, the reason appears to be that when he is paid for a week on long service leave (or I infer recreational leave) he does not attract over that week the additional benefits and allowances when working such that his income does reduce. He says he needs, effectively, all the money he can to meet his expenses, which I understood from material relied upon and read by the Court included not only his child support commitments and personal living expenses, but expenses running from an investment decision to have two investment real estate properties. I do not challenge that the father’s recitation of how the roster works is correct.
There is, however, a dispute as to whether the father has always in the past taken every opportunity to maximise his availability to spend time with the children, notwithstanding the complexities of the bidding system and the delays and time limitations arising from the roster’s operation. In my view, such a finding can be made because the father’s decision not to obtain or seek long service leave for now the 17 years of his employment, whilst understandable from a financial perspective, reveals that whatever additional opportunities may have arisen for him to spend time with the children (notwithstanding the financial consequences) he chose not to take. In final submissions it is said and I am prepared to accept, although the foundation evidentiary is a little uncertain, that by 31 January each year he will have bid for the holidays (up to, at least, the maximum of six weeks per year) and will have received a response by that time or shortly thereafter as to what he has been allocated.
Clearly, he has not taken up his six weeks every year, otherwise he would not have 8.7 weeks of accrued leave available. The father says in respect of other entitlements, particularly with respect to school holidays, that he can bid for additional time, but would not know about the acceptance of that additional time until approximately 21 days before the beginning of every school holiday period. That is a feature of the father’s roster that I need to take into account in the orders that I pronounce. The mother’s primary concern is that not only does she wish to know what time the children will be with her, but that she would like to have certainty in relation to six weeks of school holidays per annum.
In that regard, the mother, through her Counsel and as reflected in her case outline, seeks that a certain amount of time in school holidays be fixed for her to spend time with the children, being the first week at the end of term one school holidays; the first week of the end of term two school holidays (which for the boys is a school holiday period of three weeks); the first week of the end of term three school holidays and three weeks in the end of term four/end of school holiday period, being the first two weeks of the school holiday period and the last week of that school holiday period. This would mean if the Court “protected” those areas of the calendar for the mother to spend time with the children that, absent any other agreement between the parties on an ad hoc basis (which the father thinks is unlikely to occur, but I am less pessimistic on the evidence I have heard), the father could theoretically have the balance of the holidays. This is subject to his roster, approvals and applications to use long service leave and/or additional holiday time not accruing on an annual basis being available, potentially, one week at the end of term one, two weeks at the end of term two, one week at the end of term three and up to five weeks in the end of year school holidays – a total of nine weeks.
I acknowledge that because of the arrangements in relation to Christmas it might be reasonable and practical to acknowledge that the father’s opportunity to spend time with the children during the end of year school holidays might effectively be a block of four weeks after Christmas and before the commencement of the last week of the school holidays. Nonetheless, it has to be observed that, unlike many parents, the father in this case could potentially spend up to nine weeks of school holidays with his children. In this respect it is also clear from the evidence that where the father is unable to spend time with the children (and there is no indication he has in the past spent anything like nine weeks school holidays with the children) and the mother is not otherwise available she makes other arrangements for the care of the children as do most other working parents in Australia.
What the mother would seek, however, is as much notice as possible so that she can make those arrangements and she says that that would be assisted by an understanding as to when she has holiday time with the children.

Discussion

I deal with the issues in dispute as follows.
I have heard the competing submissions as to how a “window” of time that the father could spend with the children each alternate weekend could operate most effectively in the best interests of the children. The mother’s proposal is that the window be a period from Thursday after school until Tuesday before school. If the father was able each alternate week to get that period available to him then the needs of the children would be met by both stability, certainty and the agreed time for the children to spend with the father during school terms. The mother conceded in cross-examination that if, for example, the father could only spend part of the window she proposes or two parts separated by a day at work, for example, she would accommodate that. The mother says that by having that window she is able to then with certainty pre-plan and make arrangements for all the other periods of time (effectively nine days a fortnight) when the children will be with her.
The ICL essentially adopts the mother’s proposal, but in her proposal says that it would be appropriate to allow some “make up time” if the father could not get the whole period of five days each fortnight off from work by way of additional holidays.
The father’s proposal in his first articulation in the case outline is slightly different from that now articulated. The father agrees that he would like to spend five days a fortnight over or around the weekend ideally, but that because of his roster that may not be possible. He says, as a result, that he would like the window in which he can nominate up to five days where the children will spend time with him to be a window of seven days between Wednesday to Wednesday. The way the roster operates the mother would have in many cases only eight days’ notice of when that time might occur.
Doing the best I can, the principle which I think needs to be applied in this case is that:
a)the father’s time with the children should be in the region of five nights each alternate weekend;
b)there is a difference in the quality of time that these children can enjoy with their father between school time during a school week and weekend time. A mixture of both events in the children’s life would be ideal; and
c)if there was a limit of five days in which the father has a window to seek time then, as Exhibit 7 suggests and accepting for the sake of this analysis that the father has sought to genuinely obtain as much time as possible, then the father would not have the opportunity and the children would not experience the desired five nights a fortnight with the father. However, in my view, providing the father with a window of seven days is too uncertain for the mother’s necessary structure as primary carer to operate effectively and efficiently.
Accordingly, the Orders I pronounce will provide for there to be a six night window each alternate weekend whereby the father could nominate up to five nights in what configuration he is able to achieve, the window running from Wednesday after school until before school Tuesday. The Orders which I make do not allow for make-up time specifically as, in my view, the opportunity for the father to spend even more than make up time, subject to his roster operating, is available to him through school holidays.
The Orders made allow a six night window which would allow manoeuvrability and flexibility and be able to adequately capture the most commonly occurring periods (as revealed by Exhibit 7) of two and three nights during the school term. The Orders would also prevent the father imposing a stay of one night in isolation, however these nights have only occurred on a rare occasion over the past nine months.
There is a dispute about who should hold the passports of the children. In my view, the mother with sole parental responsibility by agreement should hold the children’s passports noting, however, that at this stage, despite the amount of attention given to this issue, the children do not currently have a passport nor is there any emergent current opportunity to travel overseas.

During submissions a dispute arose as to the notice that a parent needs to provide to the other parent for a trip overseas. The draft prepared by the ICL (see proposed order 30(a)) was that:
“The travelling parent will as soon as possible and not less than 14 days prior to departure provide an itinerary and flight details.”
I am prepared to accept the submissions of the father that for a weekend trip during a school week (a trip to, for example, New Zealand), it may not come up as available on his entitlements with 28 days’ notice. In my view, the Order for international travel should be most construed by the opportunities which arise during a school holiday period and, therefore, I would propose that the time limit be 28 days. The parents could agree to allow the boys to travel on a weekend (they would otherwise spend with their father) on shorter notice.
I say that because not only will that give the parents sufficient time to prepare, but also, depending on the country, an opportunity to gain access to the passport for visa requirements and, if the other parent has a concern about the location being proposed, sufficient time to come to the Court to injunct the other parent from travelling to that location.
I accept that setting a 28 day minimum notification period could mean that the father could not satisfy that requirement for a short trip to New Zealand or the like for a weekend or part of a weekend (such as a long weekend, etcetera). The mother heard that submission and I would be disappointed and would find it difficult to accept (notwithstanding the father’s concerns about the mother’s reaction to him taking the children to Melbourne). The Melbourne trip occurred when the mother did not know they were going there. I do not believe the mother would stand in the way of these children having a weekend overseas at shorter notice than 28 days. It would be disappointing, for example, for the father to feel a need to bring an urgent application that notice of less than 28 days can be given for such an event.
The parties were in dispute about time on the parents’ birthdays. In my view, there are such challenges associated with merely obtaining orders that are sensible, easily interpreted and easily applied for alternate weekend time that I would not wish to have a prospect of further conflict arising from whenever the father’s birthday or the mother’s birthday falls. I choose not to make an order about the time the children spend with a parent for their birthday, noting that with the regularity of weekend time it will be possible for either of the parents to celebrate their birthday with their children proximate to when the birthday will actually fall and there will be occasions when their birthday will actually fall within the time limits set out by the Order, which I now pronounce.
For the reasons which I give I find that the Orders set out at the commencement of these Reasons are in the best interests of these children.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 29 January 2020.

Associate:

Date: 29 January 2020

APPENDIX ONE

That all previous Orders and parenting plans be discharged.

Parental responsibility

That the parents have equal shared parental responsibility for the children X born … 2007 (“X”) and Y born … 2009, (“Y”), (“the children”).

Schooling

That the children be enrolled at the B School and neither parent cancel the enrolment of the children in that school and enrol them in another school without first obtaining the other parents consent in writing so to so or by Order of the Court.
That by no later than the end of term four (4) of year five (5) for the child X, if the parents cannot agree to which high school the children shall attend, then the parents attend private mediation in relation to that issue and in that regard:
(a) The father elect by email to the mother the names of three (3) mediators;
(b) The mother choose one (1) name from the list within twenty-one (21) days of receipt of the names by the father; and
(c) The parents bear any costs associated with the mediators equally.

Living arrangements

That the children live with the mother.
That the children spend time with the father at all times as agreed and failing agreement, as follows during the children’s school term, (excluding the weekend of 10 and 11 August 2013) and upon the following conditions:
(a)The father shall by the Tuesday after the release of his roster by his employer, email to the mother the dates that he will spend time with the children and those times will be as follows:
i.    In each month block (pursuant to the roster given) two (2) periods of three (3) nights and two (2) periods of two (2) nights;
ii.     The time may be less than the time provided for in Order 6(a)(i) (in the event the that the father cannot get more time off) but shall not exceed four (4) blocks as provided in Order 6(a)(i) and in the event that the father cannot exercise any of the time, there will not be make up time;
iii.   The time shall be non-consecutive such that there is always a night’s gap between any periods of time the children spend with the father;
iv.    The blocks nominated shall include up to two (2) weekends each month with the mother to be liberty to elect one (1) weekend each month that the children spend with her, provided that such weekend shall be elected in writing to the father, forty-five (45) days prior to the date;
v.   When the days are a weekday, time shall commence after school and conclude before school;
vi.    When the days are a weekend, time shall commence between 8.00am and 9.00am and conclude between 4.00pm and 5.00pm; and
vii. In relation to change over during the school term, the father shall affect all changeover that occurs during a weekday (Monday to Friday) (to and from school) and when time commences or concludes on a weekend day (Saturday or Sunday), the mother shall collect and deliver the children from the father’s residence.
That the children shall spend their gazetted school holiday periods (the B School or such other school as agreed or Ordered) with the parents as follows:
(a)   In the June/July school holidays 2013:
i.    With the father between 9.00am 24 June 2013 to 4.00pm 29 June 2013; and
ii.     With the mother for the balance of the June/July school holidays.
(b) Commencing September school holidays 2013, during the Easter, June/July and September school holidays with the father for a period of six (6) consecutive nights commencing at 9.00am on Thursday and concluding at 4.00pm on the last day and in that regard:
i.    The father shall give to the mother thirty (30) days notice of the time that he intends to spend with the children via email and shall spend that time with the children except in the event that, forty-five (45) days prior to the commencement of the school holidays the mother advises the father by email that she wishes to take the children away on a holiday, in which event the father shall choose six (6) nights not to coincide with that holiday, except in the event that the father has not already elected his time before the forty-five (45) days and emailed the mother; and
ii.     In the event that the father cannot elect six (6) nights during the holiday period, then he email the mother thirty (30) days prior to the commencement of the school holidays advising of the days that he can spend with the children (such time to occur in a six (6) days block) except in the event that, forty-five (45) days prior to the commencement of the school holidays the mother advise the father via email that she wishes to take the children away on a holiday, in which event the father shall choose six (6) nights not to coincide with that holiday, except in the event that the father has not already elected his time before the forty-five (45) days and emailed the mother.
(c)   During the children’s gazetted December/January school holiday periods as follows:
i.    On a rotating week about basis, with the mother in the first week in odd years and second week in even years and the father in first week in even years and second in odd years provided that:
1.The father provide to the mother thirty (30) notice prior to the commencement of the December/January school holiday period that he will be spending the week about time with the children;
2.In the event that the father cannot spend the week about time with the children, then he advise the mother thirty (30) days prior to the commencement of the December/January school holidays that he cannot spend week about time with the children, and the father shall elect when his roster comes out and by the Tuesday after this roster comes out times during the school holidays, such time to occur in the weeks the father was to spend with the children pursuant and the time shall occur in those weeks only, not the weeks that the mother is to spend with the children pursuant to this Order; and
3.The mother is at liberty to give the father forty-five (45) days notice prior to the start of the December/January holidays and three (3) nights at block periods (but not Christmas) she will spend with the children irrespective of whose week it is.
That notwithstanding the time during school term and school holidays, the children shall spend time with the father on the following special occasions:
(a)   Commencing Christmas 2013, from 4.00pm on Christmas Eve until 9.00am on Boxing day in odd numbered years (if the father is unable to exercise this time he does not have make up time the following year);
(b)   Commencing Easter 2016, from 9.00am on Good Friday until 5.00pm on Easter Monday in even numbered years;
(c)   On each of the children’s mother’s and father’s birthdays from after school until 7.00pm on school days, or from 10.00am until 4.00pm on a non-school day with which ever parent the children are not living with; and
(d) Mother’s day weekend with the mother, Father’s day weekend with the father.
That changeover on special and holidays shall occur with the parent who is about to spend time with the children collecting the children from the other parents residence.

Communication

That both the father and the mother do all things necessary to facilitate phone communication between the children:
(a)        Between 6.00pm and 7.00pm on any day;
(b)       At any time in an emergency; and
(c)        At any reasonable request by the children.

Further Orders

That neither parent shall relocate the children residence greater then a forty-five (45) kilometre (km) radius from the school that the children attend.
That both parents shall enrol within twenty-eight (28) days of the date of these Orders in a post-separation parenting Orders program run by Relationships Australia (or other like organisation) and upon completion of the same shall provide a copy of the Certificate of completion to the other parent.
That both parents are restrained from:
(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children; and
(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
That both parents be noted as the enrolling parents and emergency contacts at the children’s school, day care and extra-curricular activities.
That the children’s school, day care, allied health care provider and other care providers are authorised by this Order to provide all information and documents about the children to both parents including but not limited to the children’s progress, newsletter, reports, photographs, details of any school activities or medical treatment.
That both parents be at liberty to discuss all matters relating to the children with the children’s school, teacher, principal, day care and any other day care provider.
That both the parent be at liberty to attend any significant (eg. End of year, semester, or term) school events, and any significant extra-curricular activities or sporting events and each parent shall ensure that the children shall attend all compulsory school or otherwise agreed sporting or extra-curricular activities and or events.
That the parents notify each other within twenty-four (24) hours of any change of address, email or telephone number (including mobile phone).
That each parent must advise the other of:
(a) The current name and address of any health provider including general practitioner, dentist or any other health practitioner that the children are currently attending and shall notify the other parent if either the child changes health practitioner within forty-eight (48) hours;
(b) Any significant medical or dental treatment provided to a child; and
(c) Any medication a child is to take whilst the child is within the other care, including the dosage.

IT IS NOTED:

A. That the father agreed to Order 3 of the Orders whilst noting that he wishes both children to attend a school other than B School for their high schooling and that at the end of grade five (5) the parents will have attended mediation in relation to the issue. After the mediation, if the parents cannot agree as to where the children will attend high school then the father is not stopped from filing further proceedings in relation to the issue of which high school the children will attend.

B. That the mother agrees to Order 3 noting at this time she wishes the children to attend B School for their high schooling.

C. That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

[2020] FamCA 29

29 January 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Natural Justice

Remedies