GILBORNE & TAVENDER
[2018] FCCA 3999
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
GILBORNE & TAVENDER [2018] FCCA 3999
Catchwords:
FAMILY LAW – Parenting – young children – Father’s actions found to be calculated to restrict the children’s time with the Mother – credibility and other findings in favour of the Mother – change in residence ordered with the children to reside with the Mother and spend regular time with the Father – significant travel issues for the parties because of the geographical distance between the parents’ residences.
Legislation:
Family Law Act 1975 (Cth), pt.VII, ss.60CA, 60CC(3)(e), 65DAA
Cases cited:
Mazorski v Albright (2008) 37 Fam LR 518
Applicant: MS GILBORNE
Respondent: MR TAVENDER
File Number: CAC 1061 of 2015
Judgment of: Judge Neville
Hearing dates: 3 & 4 April 2018
Date of Last Submission: 8 June 2018
Delivered at: Canberra
Orders Pronounced: 4 April 2018 & 5 October 2018
Delivered on: 5 October 2018 REPRESENTATION
Counsel for the Applicant: Mr Hogg
Solicitors for the Applicant: Central West Legal
Counsel for the Respondent: Mr Stagg
Solicitors for the Respondent: Legal Aid NSW
Counsel for the Independent Children’s Lawyer: Ms Davis
Solicitors for the Independent Children’s Lawyer: Tarella Law ORDERS – 4th April 2018
THE COURT NOTES THAT:
A.The Court delivered ex tempore reasons for a change in residence of the children; accordingly;
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The children, [X] (born: … 2012) and [Y] (born: … 2014), live with the Mother.
THE COURT FURTHER ORDERS THAT:
2.The Father is to notify the Court and the parties of whether he will relocate in light of Order 1, within 28 days of the date of these Orders, being by close of business on 2 May 2018.
3.The parties are to advise Chambers of an agreed procedural timetable for the filing of submissions and/or other procedural matters, which is to occur after the Father notifies the parties of his residency plans per Order 2, by 12:00pm on 6 April 2018.
ORDERS – 5th October 2018
THE COURT NOTES THAT:
A.Subject to the following Orders, the Orders made on 4 April 2018 regarding the children to live with the Mother, remain in place; accordingly,
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. At 3.00 pm on the Friday following the making of these Orders, the Mother shall collect [X] (born: … 2012) and [Y] (born: … 2014) (“the children”) the children from the Father’s home and thereafter the children shall live with the Mother.
2. By consent, the parties are to have equal shared parental responsibility for the children.
TRANSITION ORDERS
3. The children shall spend time with the Father for a transition period as follows:-
a. Commencing the second Friday after the making of these Orders, for four consecutive weekends, from 4:30 pm Friday until 3:00 pm Sunday; and
b. Thereafter, until the end of the current school term:
i. Each alternate weekend from after child care and/or school or 4:30 pm Friday until 3:00 pm Sunday, commencing on the sixth Friday after the making of these Orders; and
c. Pending the Father providing 14 days’ notice to the Mother that he intends to be in the Town A area on any Wednesday afternoon, the Mother will facilitate such extra time as is reasonably practicable and no less than 2 hours between 4:30 pm and 6:30pm.
4. For the purpose of handover for the transition period:
a. For the weekend visits, the Father shall collect the children from child care and/or school and if child care and/ or school are not available, from the Mother’s home on Fridays and the Mother shall collect the children from the Father’s home on Sundays;
b. For the mid-week visits, handover shall occur as agreed between the parties.
ONGOING ARRANGEMENTS
5. After the current school term, the children shall spend time with the Father:
a. Each alternate weekend from 4:30 pm or at the end of day care and school Friday until 3.00 pm Sunday;
b. In the event that the Father’s weekend falls on a long weekend including a Monday, then the Father’s time shall be extended to 3:00pm on Monday, subject to the Father providing 14 days’ written notification to the Mother of his intention to have the additional time with the children;
c. In the event that the Father’s weekend falls on a long weekend including a Friday, then the Father’s time will be extended and will commence at 4:30pm on the Thursday, subject to the Father providing 14 days’ written notification to the Mother of his intention to have the additional time with the children;
d. Each term school holiday from 4:30 pm or at the end of day care and school on the last day of term until 3:00 pm on the middle Saturday;
e. Each Christmas school holiday:
i. In 2018/2019 and each alternate year thereafter, for the first half of the holiday period, from 4:30 pm or at the end of day care and school on the last day of term, until 3.00 pm on the day that is the midpoint of the school holiday period;
ii. In 2019/2020 and each alternate year thereafter, for the second half of the holiday period, from 3:00 pm on the day that is the midpoint of the school holiday period until 3:00 pm on the Saturday prior to the new school term.
f. In the event that Easter does not fall in the school holidays, the children shall spend time with the Father for Easter, in 2019 and each alternate year thereafter, from 4:30 pm or at the end of day care and school on the Thursday before Easter until 3.00 pm on Easter Monday.
g. For the weekend of Fathers’ Day, from 4:30 pm or at the end of day care and school Friday until 3:00 pm Sunday.
h. At all other times as agreed between the parties.
6. The Mother shall spend time with the children for special occasions, and the Father’s time is suspended, as follows:
a. That in the event that Easter does not fall in the school holidays, the children shall spend time with the Mother for Easter, in 2020 and each alternate year thereafter, from 4:30 pm or at the end of day care and school on the Thursday before Easter until 3:00 pm on Easter Monday.
b. For the weekend of Mothers’ Day, from 4:30 pm or at the end of day care and school Friday until 3:00 pm Sunday.
7.For the children’s birthdays, the children will spend time with the parent they are not already spending time, as agreed between the parties, but failing agreement the time should occur in the place that the children are and between 1:00pm and 5:00pm.
8.The Father’s weekend time is suspended during school holiday periods, and shall recommence on the first weekend of each term.
9.For the purpose of calculating the midpoint day of the Christmas school holidays:
a. the holiday period commences on the last day of school and ends on the Saturday before the new school term; and
b. In the event there is an odd number of days, handover shall take place on the middle day of the school holidays;
c. In the event there is an even number of days, handover shall take place on the last day of the first half of the school holiday period.
10.For the purposes of handover:
a. The Father or his nominee shall collect the children from child care and / or school and if child care and/ or school are not available, from the mother’s home at the beginning of his time with the children; and
b. The Mother or her nominee shall collect the children from the Father’s home at the end of his time with the children.
11.The parties shall have reasonable telephone or other electronic communication with the children when the children are not in their care, and no less than three times per week, each Tuesday and Thursday between 5:00 pm and 6:00 pm and one other time as agreed between the parties in writing (including by SMS).
12. The parties shall keep each other informed of their residential address and mobile telephone numbers at all times.
13. Each party shall notify the other within seven days of a change of address and within twenty four hours of a change of phone number.
14. Both parties by this Order, authorise any day care, preschool or school that the children attend to provide to the other party copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent / teacher nights and that each parent is entitled to attend school events, parent / teacher appointments and the like.
15. Both parties by this Order, authorise any treating medical practitioner, hospital or medical practise that the children shall attend from time to time to provide to the other any information regarding the children.
16. In order to facilitate Order 15 above, each parent shall promptly inform the other of:
a. Any medical problems or illnesses suffered by the children in the care of either parent; and
b. Any medication needs for the children whilst in their respective care;
c. The names and contact details of any medical doctors, therapists and allied health practitioners consulted by the children.
17.The Mother is hereby restrained from relocating the children from the Town A region without either the written consent of the Father or an Order of the Court.
18.The parties are to attend a Family Dispute Resolution Conference regarding any other changes to this regime in the future, including any proposed relocation of the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Gilborne & Tavender is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 1061 of 2015
MS GILBORNE Applicant
And
MR TAVENDER Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.The parties in this parenting matter have been litigating, on and off, since July 2015, which was when the parties separated after a relationship of approximately 4 years. There are two boys of the relationship, [X] (who was born in … 2012) and [Y] (who was born in … 2014).
2.Added to this unfortunate litigious history are the very significant factors of logistics, practicality (and cost), and geography.[1] The Father lives in Town B and the Mother now lives in Town C, which is approximately mid-way between Town A and Young. The distance between these two centres is about 180 kilometres, and a drive (one way) of approximately 2 hours.
[1] See s.60CC(3)(e) of the Family Law Act 1975 (Cth) (“the Act”).
3.The matter was relevantly heard over two days on 3rd and 4th April 2018. Oral reasons were delivered on the last day of the trial and Orders made on 4th April 2018. Briefly stated, those Orders provided for the children thereafter to live with the Mother and spend time with the Father.[2] Provision was also made for the Father to file further submissions (and the Mother to respond to them) regarding whether he might relocate to live closer to the Mother and the children with a view to his time with the children increasing, should he do so.
[2] The only substantive parenting Order made on 4th April 2018 provided for the children to change residence to live with the Mother. The Orders also provided for (a) the Father to notify the Court and the other parties as to whether he intends to relocate closer to the Mother, and (b) the parties to provide an agreed timetable for the filing of written submissions in relation to the Father’s time with arrangements in the light of the change of residence of the children.
4.There was (and has been) no appeal against the Orders made on 4th April 2018.
5.Further procedural Orders were made by consent on 6th April 2018 regarding the filing of material in the event that the Father was able to live in closer proximity to the Mother and the children. In making those Consent Orders, there was a notation that they were agreed on the basis that the Father did not formally consent to the change in residence of the children from him to the Mother pursuant to the Court’s 4th April Orders.
6.The parties then filed written submissions in relation to the Father’s time with arrangements. Those submissions are set out later in these reasons. Unfortunately, surprisingly and unhelpfully, the Independent Children’s Lawyer (“the ICL”) did not file any submissions on this issue.
7.On 5th October 2018, the Court delivered oral reasons and made Orders regarding the spend time with arrangements between the children and their Father. Those Orders are set out below.
8.For reasons unknown, the Court was only notified in April of this year that in November 2018 the Father had lodged an appeal against the October 2018 Orders. What follows are the reasons for the Orders of both 4th April and 5th October 2018 revised from the transcript.
9.By way of observation only, the Father’s appeal appears to be akin to an Application either to re-open or to re-visit the parenting Orders made on 4th April 2018, or even more particularly regarding the later “time with” Orders made on 5th October 2018 based, as he says, on some change in circumstances, which he sets out in his Notice of Appeal. On its face, the Notice of Appeal refers only to a challenge to the Orders made on 5th October 2018. Such matters are, of course, for the Full Court to determine.[3]
[3] During the trial the Father was represented by Legal Aid NSW (Town D office). According to his Notice of Appeal, he is now self-represented.
10.On 17th April 2019, in order to facilitate the preparation of written reasons, the Court wrote to the parties requesting Word version copies of the written submissions provided by them last year.
Scope of the Contest
11.For context and otherwise the following comments by Counsel for the Independent Children’s Lawyer (“the ICL”) neatly capture the issues in dispute:[4]
But I do want to say this at the outset. Whilst my friend Mr Stagg says the mother has been spending time, and she has had overnight time since November 2017, that is true, and she has been spending time, but the history of this matter from the ICLs perspective is that from the very beginning in April 2015 the mother has been seeking more time and overnight time, and the father has consistently resisted that.
And over the course of the proceedings, the father’s resistance has changed in foundation over time, and the evidence has never really supported what it is that the father has said. So for this case, that history is significantly important in terms of what that means for the future, because while the father does say to Ms E and through his counsel this morning that he’s open to more time and he’s willing to have more time, the history doesn’t support that he’s able to do that in the absence of orders requiring him to comply.
And what that means, your Honour, is how can we, from the ICLs perspective, trust what will happen once the court makes orders. And that obviously leads us to a dichotomy between, if the father can’t facilitate time, how is that going to damage the children’s relationship with the mother, and is it enough of a risk to unsettle the children by changing residence, on the hopes that she will do a better job. And that’s why at this stage the ICL says broadly in support of the recommendations, but need to see where the evidence lies, because what the ICL is going to recommend to your Honour this case is going to determine how we get to what happened as to why overnight time just did not happen until November 2017, when ‑ ‑ ‑
[4] Transcript (3rd April 2018) p.10. Hereafter “T” followed by page number.
12.The Court then inquired whether these comments on behalf of the ICL meant, subject to evidence, that the ICL sought a change in the primary residence of the children. The answer was in the affirmative.
13.It should also be noted that it was essentially agreed that once the principal issue of the children’s residence was determined, the “spend time with” arrangements were identical as sought by each parent. As Counsel for the Father stated: the Orders by each party on this aspect are “just mirror images of each other.”[5]
[5] T 36 – 37.
Orders Sought by the Applicant
14.The Mother’s Orders sought in relation to the hearing on 3rd and 4th April 2018 were as follows:
PARENTAL RESPONSIBILITY
1. That the each party shall have equal shared parental responsibility for the children [X] born on … 2012 and [Y] born on … 2014;
and for this purpose the parents be jointly responsible for making decisions about major long term issues in respect of the children including but not limited to:
(i) the children's future education;
(ii) the children's health:
(iii) changes to the children's living arrangements which might make it significantly more difficulty for the child to spend time with either parent AND for the purpose of implementing this Order the form of consultation between the parents about making major long term decisions shall be:
a) in writing:
b) carried out in good faith:
c) child focussed:
d) non-derogatory: and
e) conducted with the parents attending mediation in the event of no agreement being reached.
2. Each parent shall be responsible for the day to day decisions concerning the care of children whilst the children are in their respective care.
LIVE WITH
3. That the children shall reside with the Mother;
SPEND TIME WITH
4. That the children shall spend time with the Father as agreed between the parties and in the absence of agreement then the children shall spend time with their father as follows:
During school terms
a. Commencing on the first weekend of each school term and each alternate weekend thereafter from the conclusion of school and or day care on Friday until 3.00pm on Sunday;
During School Holiday periods;
b. For one half of all school holiday periods, being the second half in odd years and the first half in even years;
CHANGEOVERS
5. Changeovers shall occur as agreed between the parties and in the absence of agreement then changeovers shall be conducted by the Father and or his nominee collecting the children from the children’s day care and or school at the commencement of the time spent in the event that it is a school day or at the Mother’s residence in the event that it is not a school day and the mother and or her nominee to collect the children from the Father’s residence in Town B at the conclusion of the Father’s time spent;
SUSPENSION OF TIME SPENT
6. In the event that the children are not already in the Mother’s care then the children shall spend time with their Mother on the Mother Day’s weekend and the Father shall be given the following weekend in lieu;
7. In the event that the children are not already in their Father’s care then the children shall spend time with their Father on the Father’s Day weekend and the Mother shall be given the following weekend in lieu;
8. The Father shall spend from 1.00pm to 5.00pm with the children on their birthday each year, in the event that the children are not in his care, with the father to give the Mother 14 days notification of his intention to spend time with the children, with such time to occur in Town A;
9. The Mother shall spend from 1.00pm to 5.00pm with the children on their birthday each year in the event that the children are not already in her care, with the Mother to give the Father 14 days notification of her intention to spend time with the children, with such time to occur in Town B.
10. The Father shall spend from 1.00pm Easter Sunday to 3.00pm Easter Monday in the event that the children are not already in his care with the father to give the Mother 14 days notification of his intention to spend time with the children;
11. The Mother shall spend from 1.00pm Easter Sunday to 3.00pm Easter Monday in the event that the children are not already in her care, with the Mother to give the Father 14 days notification of her intention to spend time with the children.
TELEPHONE / SKYPE COMMUNICA TION
12. The parent who does not have the care of the children shall have liberal telephone, skype and/or electronic communication with the children as agreed between the parents and in the absence of agreement then on Tuesday and Thursday each week between 6.00pm and 7.00pm;
13. To facilitate the communication in order 10 the parent seeking to have the telephone communication with the children shall at his or her expense contact the other parent on that parent’s mobile telephone;
14. The parent who has the care of children shall facilitate telephone, skype and/or electronic communication at his or her expense between the children and the other parent, at all times that the children request.
15. Neither parent shall interfere with any of the children’s telephone, skype and/or electronic communication with the other parent;
16. Both parents will ensure that the children are available to receive all calls pursuant to these Orders and, in the event that the children are not available, both parents shall ensure that the children are assisted to communicate with the other parent at the earliest opportunity thereafter.
CONTACT
17. Each party shall keep the other informed of their residential address and mobile telephone numbers and undertaken that they will not provide these details to any third party, with each party to inform that other party no later than 48 hours after such change taking place.
RESTRAINT / NON DENIGRATION
18. That each parent shall refrain from making critical or derogatory remarks about the other party and or members of that family in the presence or within the hearing of any of children (including via social media) and that the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party and or members of their family in the presence or within the hearing of any of children.
19. That without admissions each parent are hereby restrained by injunction from consuming alcohol excessively, any non-prescribed drugs and or medication or any illicit substances in the presence of children or be in any way effected by them whilst children are in their care and or 24 hours prior to the children coming into their care or allowing any third party to do same. With Excessively being defined as being over the legal limit to drive a motor vehicle.
20. That each parent are restrained by injunction from physically disciplining the children and or allowing a third party to physically discipline the children.
SCHOOL / MEDICAL
21. That each party keep the other informed of all appointments made for the children to attend upon a medical professional except in a medical emergency wherein the parent shall notify the other parent as soon as possible after attending upon the medical professional).
22. That each party keep the other informed of the children’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care the children are in are to inform the other party as soon as possible).
23. The Mother shall authorise the children’s medical professionals to provide all such information as requested by the Father at the Father’s expense and that these Orders are sufficient authority for each parent to contact and speak to children’s treating medical professional for the parent to obtain medical information, reports and the like from the children’s treating medical professions that that parent may request.
24. That each party keep the other informed of the children’s progress at school as well as all parent/teacher night appointments, co-curricular activities involving the children so as to provide the other with the opportunity to attend.
25. The Mother shall authorise the children’s school and or day care to provide all such information as requested by the Father at the Father’s expense and that these Orders are sufficient authority for each parent to contact and speak to children’s school to obtain all school notices, information, newsletters, school reports and the like and for such information to be provided directly to the party requesting same.
Orders Sought by the Respondent
15.The Father’s Orders sought in relation to the April parenting hearing were as follows:
1. That the parties have equal shared parental responsibility for [X] born … 2012 and [Y] born … 2014 (“the children”).
2. That the children live with the father.
3. That the children spend time with the mother as follows:
3.1 Each alternate weekend from the conclusion of school Friday or 4.00pm on a non-school day until 3.00pm Sunday; and
3.2 Commencing in 2018, for half of each of the April, July and September school holidays with the mother’s time with the children to commence at 9.00am on the Saturday following the last day of the term and with her time to conclude at 3.00pm on the middle Saturday of the school holiday period.
3.3 In the 2018 summer Christmas holidays and each alternate year thereafter, for the second half of the holidays, commencing at 12.00pm on the middle Saturday of the holidays and concluding at 3.00pm on the last Saturday of the school holiday period.
3.4 In the 2019 summary Christmas holidays and each alternate year thereafter, for the first half of the holidays, commencing at 12.00pm on the Saturday following the last day of term and concluding at 12.00pm on the middle Saturday of the holiday period.
Special occasions
3.5 For Christmas each year, the parent with the children in the first half of the Christmas school holiday period will spend Christmas with the children.
3.6 Notwithstanding any other order and in the event that Easter does not occur in a school term holiday period, commencing in 2018 and each alternate year thereafter, the children will spend time with the mother from the conclusion of school on the day before the Easter break until 3.00pm on Easter Monday.
3.7 Notwithstanding any other order and in the event that Easter does not occur in a school term holiday period, commencing in 2019 and each alternate year thereafter, the children will spend time with the father from the conclusion of school on the day before the Easter break until 3.00pm on Easter Monday.
3.8 Notwithstanding any other Order, the mother will be permitted to spend time with the children on Mother’s Day from 9.00am to 3.00pm in the event that they are not otherwise in her care.
3.9 Notwithstanding any other Order, the father will be permitted to spend time with the children on Father’s Day from 9.00am to 3.00pm in the event that they are not otherwise in his care.
Communication and information Orders
4. On days that the children are not in the mother’s care she is permitted to contact them by calling the father’s mobile telephone each Tuesday and Thursday evening between 5.00pm and 5.30pm.
5. During the school holiday periods that the children are not in the father’s care, he is permitted to contact them by calling them on the mother’s mobile telephone each Tuesday and Thursday evening between 5.00pm and 5.30pm.
6. These Orders act as an authority for both parties to obtain all information from education institutions and medical centres, hospitals or specialists that the children attend upon.
7. Both parties are to keep each other advised of their home address, mobile telephone and email address and are to advise the other of any changes to these details within 48 hours of any such change occurring.
Orders Sought by the Independent Children’s Lawyer
16.The ICL’s consolidated Orders sought in relation to the April parenting hearing, and which include proposed Orders following the Court’s determination of the primary residence of the children, filed 10th May 2018, were as follows:
1. That all previous Orders relating to the children [X] born … 2012 and [Y] born … 2014 (“the children”) be and are hereby discharged.
2. That the parties have equal shared parental responsibility for the children.
TRANSITION ORDERS
3. That at 3.00 pm on the Friday following the making of these Orders, the mother shall collect the children from the father’s home and thereafter the children shall live with the mother.
4. That the children shall spend time with the father for a transition period as follows:-
a. Commencing the second Friday after the making of these Orders, for four consecutive weekends, from 3.00 pm Friday until 3.00 pm Sunday; and
b. Thereafter, until the end of the current school term:-
i. Each alternate weekend from after child care and/or school or 3.00 pm Friday until 3.00 pm Sunday, commencing on the sixth Friday after the making of these Orders; and
ii. Each Wednesday from 4.00 pm until 6.00 pm in Town A.
5. That for the purpose of handover for the transition period:-
a. For the weekend visits, the father shall collect the children from child care and/or school and if child care and/ or school are not available, the mother’s home on Fridays and the mother shall collect the children from the father’s home on Sundays;
b. For the mid-week visits, the parties shall meet at the Town A Information Centre.
ONGOING ARRANGEMENTS
6. That the children live with the mother.
7. Commencing in Term 3, 2018 the children shall spend time with the father:-
a. Each alternate weekend from 3.00 pm or at the end of day care and school Friday until 3.00 pm Sunday;
b. Each term school holiday from 3.00 pm or at the end of day care and school on the last day of term until 3.00 pm on the middle Saturday;
c. Each Christmas school holiday:-
i. In 2018/2019 and each alternate year thereafter, for the first half of the holiday period, from 3.00 pm or at the end of day care and school on the last day of term, until 3.00 pm on the day that is the midpoint of the school holiday period;
ii. In 2019/2020 and each alternate year thereafter, for the second half of the holiday period, from 3.00 pm on the day that is the midpoint of the school holiday period until 3.00 pm on the Saturday prior to the new school term.
d. That in the event that Easter does not fall in the school holidays, the children shall spend time with the father for Easter, in 2019 and each alternate year thereafter, from 3.00 pm or at the end of day care and school on the Thursday before Easter until 3.00 pm on Easter Monday.
e. For the weekend of Fathers’ Day, from 3.00 pm or at the end of day care and school Friday until 3.00 pm Sunday.
f. At all other times as agreed between the parties.
8. The mother shall spend time with the children for special occasions, and the father’s time is suspended, as follows:-
a. That in the event that Easter does not fall in the school holidays, the children shall spend time with the mother for Easter, in 2020 and each alternate year thereafter, from 3.00 pm or at the end of day care and school on the Thursday before Easter until 3.00 pm on Easter Monday.
b. For the weekend of Mothers’ Day, from 3.00 pm or at the end of day care and school Friday until 3.00 pm Sunday.
9. The father’s weekend time is suspended during school holiday periods, and shall recommence on the first weekend of each term.
10. For the purpose of calculating the midpoint day of the Christmas school holidays:-
a. the holiday period commences on the last day of school and ends on the Saturday before the new school term; and
b. In the event there is an odd number of days, handover shall take place on the middle day of the school holidays;
c. In the event there is an even number of days, handover shall take place on the last day of the first half of the school holiday period.
11. For the purposes of handover:-
a. The father or his nominee shall collect the children from child care and / or school and if child care and/ or school are not available, from the mother’s home at the beginning of his time with the children; and
b. The mother or her nominee shall collect the children from the father’s home at the end of his time with the children.
12. That the parties shall have reasonable telephone or other electronic communication with the children when the children are not in their care, and no less than each Tuesday and Thursday between 6.00 pm and 7.00 pm.
13. That the parties shall keep each other informed of their residential address and mobile telephone numbers at all times.
14. That each party shall notify the other within seven days of a change of address and within twenty four hours of a change of phone number.
15. That both parties by this Order, authorise any day care, preschool or school that the children attend to provide to the other party copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent / teacher nights and that each parent is entitled to attend school events, parent / teacher appointments and the like.
16. That both parties by this Order, authorise any treating medical practitioner, hospital or medical practise that the children shall attend from time to time to provide to the other any information regarding the children.
17. In order to facilitate Order 16 above, each parent shall promptly inform the other of:
a. Any medical problems or illnesses suffered by the children in the care of either parent; and
b. Any medication needs for the children whilst in their respective care;
c. The names and contact details of any medical doctors, therapists and allied health practitioners consulted by the children.
Documents Formally Tendered
17.Below is the short list of material formally tendered in the course of the hearing that was not otherwise annexed to the trial Affidavits of the parties:
| No. of Exhibit | Description of Exhibit | Party who Submitted Exhibit | Witness who Proved Exhibit | Notes |
| A | Family Report of Ms E dated 19 September 2018 | Court | N/A | N/A |
| B | Text messages of May and June 2015 | Father | Mother | N/A |
| C | Email correspondence from January 2017 – February 2017 regarding the Mother’s mental health | Father | Mother | N/A |
| D | Extract of documents from FACS and report dated 29 November 2017 | Father | Mother | N/A |
| E | 2 pages of messages from the Father to the Mother | ICL | Father | Also formed part of the Mother’s evidence at pages 170A and 170B of her Affidavit |
Evidence of the Mother
18.Summarised, the Mother’s oral evidence was as follows.
19.The Mother confirmed that alternate weekend time with the children had been the basic and consistent “time with” arrangement since November 2017. From her perspective, there were no substantive issues, other than regular verbal contests with the Father.
20.She confirmed that both she and the Father have a very limited financial budget. Among other things, this has impacted on the payment of child support. She said that she had been told by the Child Support Agency that because of (a) her “time with” arrangements, (b) her other, younger child, and (c) her low income, she did not need to pay any further child support.
21.The Mother said that she would not consider moving back or closer to Town B.
22.She said that she used to see the children every second day, usually between 9 am and 5 pm. This was because of her work commitments but also because (she said) the Father was controlling of her time with the children. In short, she said that the Father would not agree with the boys spending (more and or more frequent) time with the Mother; he asserted (she said) that (among other things) she had “mental health issues”. There were also allegations of “aggression” between the parties, not involving the children.
23.The Mother said that, in her view, only spending time with or seeing the boys every second day was not fair. She also said that before any Orders were made in 2017, she saw the boys every day. She said that once she had her daughter, [F], this impacted on her ability to spend time with the boys because the new baby had “issues” with travel.
24.The Mother said that she would not agree to a shared care/equal time arrangement because, in her view, the Father would just use the Play-Station and would not change the children’s nappies or feed them properly. In her view also, because of his lack of capacity, the Father has allowed the children to fall behind in their schooling. She said that [X] has trouble with his speech; she said that she had signed him up to undertake speech pathology. For a time, she said that the Father had stopped this assistance for [X].
25.The Mother confirmed that she had said that she would not agree to the children living in a 50/50 arrangement with the Father. This was confirmed in a SMS, which is annexed to the Father’s trial Affidavit, at Annexure T-1.
26.She also confirmed that she made some serious allegations about the Father’s controlling behaviour when the parties lived together, such as the Father not allowing the Mother to have her own bank account. Indeed, the Mother said that the Father logged into her account and simply transferred money to himself.[6]
[6] T 19.
27.After leaving Town B but then returning, the Mother said that she was only permitted to see the children at the Father’s house. The Mother said that the Father would not permit her even to take the children for a walk outside the house. She confirmed that she decreased the visits because of her discomfort in being at the Father’s house, as well as her ongoing fights with the Father, principally about her being able to spend more time with the boys.
28.The Mother confirmed that, when she left the relationship, it was not her choice (she said) to leave the boys with the Father. The Mother remained concerned about leaving the boys in the care of their Father. This was to an extent where she visited the Father’s house at 4am one morning to check on the boys. She still had a key to that house and the Father had not done anything to remove it from her.[7]
[7] T 22.
29.It was around this time (1st June 2015 - after the parties broke up) that the Father started to question the Mother’s mental health.
30.Around this time too, [X] had to have surgery (for an undescended testicle). The Mother discharged [X] from hospital and did not return him to the Father for a few days. Although the Mother advised the Father that she intended that [Y] would also come to live with her ultimately she returned [X] to the Father.[8]
[8] T 25.
31.The issue of the Mother’s “mental health” was again the subject of discussion. This included a range of questions put to the Mother about whether she had seen a psychiatrist. She confirmed that she had seen a counsellor but could not recollect if she had seen anyone else. Further, it came to light, indirectly, that an application for a grant of aid to seek a relevant report was denied. Ultimately, it seemed that the Father’s concerns in this regard were addressed in the Family Report, which is considered later in these reasons.[9]
[9] Generally, see the discussion at T 25 – 27 including the correspondence in January and February 2017 that became Exhibit C.
32.The next issue addressed related to the Mother’s assertion in her trial Affidavit (pp.171 – 180 being part of the Annexures to the Mother’s Affidavit) that the Father was asserting that the Mother was “sleeping around” in Town B. When considering the actual terms of the SMS messages, the Mother conceded that the Father did not use those terms; however he did ask the Mother in one message “not to bring all her boyfriends around.” She said that the Father was her first boyfriend. She also said that she accepted that the directness of her communication with the Father may have been misinterpreted by him. There followed a significant number of examples of difficult communication between the parties – on both sides – regarding the children. These ranged from one of the boys losing a hat, to one of them being injured, and much else besides. I need not traverse all such details other than to note that the Mother regards the Father as manipulative, including in his SMS messages, and that, for a significant period of time, the Mother has not been able to say anything positive about the Father, but ultimately accepted that he may be doing what he thinks is best for the children.[10]
[10] See T 30 – 34.
33.The Mother confirmed that she moved to Town A in 2016. She said that she could not afford to live in Town B. She was then not in a relationship. She acknowledged that this move meant that she was somewhat restricted in the amount of time that she could spend with the boys. Nonetheless, the Mother confirmed that she was travelling approximately three times per week to see them. She said that (in general terms) she was seeing them every second day, which meant some reduction in her time with them.[11]
[11] T 34 – 35.
34.There was an extended discussion with the Mother about her communication with the Father over one or both boys having – possibly – chicken pox, flea bites or scabies – and more relevantly about the communication over these matters. The issues here related primarily to (a) keeping the other parent properly informed of any medical condition, medical appointment and or medication (as well as follow-up medical appointments), and (b) the nature and tone of the communications.[12]
[12] The extended discussion is located at T 38 – 43.
35.Candidly and properly, the Mother agreed with the general proposition that, at times, she is the one who sends “accusing” SMS messages, not the Father. She maintained, however, that the Father knows how “to push her buttons.”[13] At the same time, the Mother also acknowledged that there is little trust between the parents.
[13] See T 42 – 44.
36.The Mother confirmed that (a) she has concerns about the Father using drugs, but (b) she has not seen the Father using any drugs for approximately 8 or 9 years.[14]
[14] T 48.
37.In response to questions from the ICL, the Mother said as follows.
38.First, the Mother said that her comments to Ms E regarding the Father’s drug use were in answer to a general question that the Family Consultant asked about any “drug use” by the parties. Inferentially, this rather deflected any view that the Mother was raising the Father’s [historical] drug use directly.[15]
[15] See T 51.
39.Secondly, the Mother said that it was generally understood between the parties that, upon separation, the children would live primarily with her. This obviously changed as the circumstances already outlined have confirmed. The Mother also confirmed that the Father had sought the assistance of a friend of the Mother (recorded in various SMS messages) to assist the parties to “get back together.” The Mother’s evidence was to the effect that the Father said, in various conversations with her, that if she was not going to get back together with him then she would not be seeing or spending time with the children. Indeed, the Mother said that the Father said to her that if the parties were not getting back together “you will never see the boys again.”[16]
[16] T 53 - 54.
40.Thirdly, the Mother said that the Father forced her to “sign over” to him the Family Tax Benefit that she would otherwise receive. She said that she did as the Father demanded because the Father was preventing her from spending time with the children.[17]
[17] T 53 – 54.
41.Fourthly, the Mother’s evidence was that the Father’s initial attempt to obtain an “AVO” against her was unsuccessful, not least because the police advised him that there was no evidence upon which such an Order could be obtained. Thereupon the Father sought an Order on the basis that he feared that “the Mother might hit him.” In her view, this Order was procured in order to stop the children going with her. This is ultimately what happened, and perhaps too why her time with the children was somewhat sporadic.[18]
[18] T 56.
42.Fifthly, the Mother said, a number of times with relevant details, that the Father did not put her name on the children’s registration forms for child care. She learnt of their enrolment from a customer when she was working at Employer. Similarly, the Father had not told the Mother of the children’s enrolment in day care. Nor had he told her of the oldest child’s enrolment at school. The Father (according to the Mother) refused to put her down as an “emergency contact” for the day care.[19]
[19] See T 50, 56 & 57.
43.Sixthly, the Mother said that the main accusations by the Father against her related to [alleged] anger management and mental health. No specifics about her alleged “mental health” issues were given. She confirmed that she had attached to an earlier Affidavit a letter from her general practitioner that she had no history of mental health. Similarly, correspondence from a women’s support agency supports the Mother’s contention that she has no “mental health” issues as alleged.[20]
[20] T 58.
44.Seventhly, the Mother said that her observation and assessment of the boys when she was not seeing them regularly was that they were very “clingy”, with [Y] in particular “clinging to her like a baby.” She also said that, on one occasion, the Father physically blocked her in a doorway from leaving his house with the children.[21]
[21] T 59 – 60.
45.Next, the Mother said that, in her view, the Father was now an engaged parent with the boys, and that both of them enjoy their relationship with the Father. She noted too that shortly after separation he sent the Mother a message to the effect that he regretted becoming a Father.[22]
[22] T 61.
46.After also noting that the Father had talked to the Mother on several occasions about her not seeing the boys “at all”, the Mother responded to the effect that (a) she would not take a similar view in relation to the children spending time with the Father if they lived primarily with her, and (b) this was because, in her view, to hurt the Father would be, “in a way, hurting the boys anyway, so I wouldn’t do it.” She said that she was not vindictive in this way.[23]
[23] T 61 – 62.
47.In a broad discussion about the number of children in her household (her partner having a child from another relationship), the Mother said that her partner was supportive of the boys coming to live with them. She confirmed that he was not on affidavit in the current proceeding. She also said that if a change in residence were to occur, the boys would likely be somewhat unsettled initially, but she expected them, with assistance and strategies which she outlined, to settle down.[24]
[24] T 64 – 66.
48.I should note here that I found the Mother to be an extremely good witness. She was clear as well as very candid. I considered her evidence to be open and very honest. Her recollection and attention to detail was in quite stark contrast to that of the Father, who was often unclear in his recollection and in his evidence generally. I found the Mother’s focus was very child-focussed while the Father was driven (as I note below) by his fear of the Mother removing the children from him. He was equally fearful of the Mother even spending both some increased time with the children (after separation), and especially overnight time with them. In this regard the Father was very controlling of the Mother, which was also detrimental to the children.
49.I have no doubt at all that the Mother would always support and encourage the children’s relationship with the Father. I have very significant doubt about the Father doing likewise with the children in their relationship with the Mother. As already noted, in my view his very calculated actions significantly hampered the children’s relationship with the Mother after the parties separated.
50.Absent any documentary evidence supporting his version of events, I very much accept and prefer the evidence of the Mother where there is any conflict with the Father’s account.
Evidence of the Father
51.Summarised, the Father’s oral evidence was as follows.
52.I need not recount the first part of the Father’s evidence where much time was spent – rather inconclusively in my view - on his relatively brief involvement with the police (regarding an assault) when he was younger, and some discussion regarding his possible “mental health” issues.[25]
[25] See T 89 – 94.
53.The following exchange, later in the Father’s evidence, in my view, captured something about the limitations regarding the Father’s parenting, including the poor communication between the parties:[26]
[26] T 156.
All right. There have been some other issues where mum has said you haven’t spoken to her about things, or that when you have spoken to her, you’ve done the opposite. Do you recall seeing that amongst all of the allegations in her affidavit?‑‑‑No.
I will be specific. You sent her a message saying, “What do you think about ear piercing”?‑‑‑Yes.
And she said, “You are not piercing the boys’ ears”?‑‑‑Yes.
And you took them to get their ears pierced?‑‑‑Yes.
And you didn’t tell her before you took them and you didn’t tell her after. You just sent the boys with pierced ears, didn’t you?‑‑‑Yes.
Why?‑‑‑They kept asking to get them done and I thought it would be something nice to do.
Well, did it occur to you that you could tell them no?‑‑‑Yes.
Did you think maybe you could talk to her about it again. “Look, the boys really want this. Let’s talk about why it can’t happen”?‑‑‑I did, but every time I tried to talk about something, it would end up in an argument.
54.This exchange also showed, in my view, a distinct lack of insight on the Father’s part, as well as a certain defiance by him to anything that was proposed or stated by the Mother. Further, in my view it also showed that young children were making decisions that should have been made by a parent. There were quite a number of similar examples in the course of the Father’s evidence.
55.The other matter to note at the outset was “very late breaking” news at the conclusion of the trial. After the ICL had informed the parties that her “view” was that there should be a change in the primary residence of the children, the Father indicated that, if this was ultimately to be the case, he would move closer to the Mother and the children. He sought a period of time to explore his options in this regard.[27] In the event, nothing ultimately came of this indication.
[27] See T 173 & 174.
56.The Father denied that he controlled the funds of the parties when they were together.[28]
[28] T 96.
57.There was an extended discussion about allegations by the Father regarding the Mother’s “mental health.” Ultimately, the Father confirmed that such “concerns” were (a) dependent upon what the Father had allegedly heard from others about the Mother, and (b) without foundation.[29] In a later discussion with Counsel for the ICL regarding his wider concerns about the Mother allegedly wanting to take the children away, he confirmed that he did not even trust the independent assessments of the Mother by third parties that concluded there were no mental health issues with her. He simply refused to trust these assessments. This distrust fuelled his concerns about the Mother.[30] His evidence, over time, confirmed that what he understood by “mental health” was really more of a convenient “catch-all” of his distress at the breakdown of the relationship and his fears about the boys leaving his care and living with the Mother. These were the driving forces behind all of his actions. While understandable, up to a point, the extent to which the Father acted upon them is, in my view, wholly unacceptable.
[29] T 97, 99, 149, 150 & 151.
[30] See especially T 150 – 151.
58.The Father’s propensity always to think the worst of the Mother was also evident when he stated, in his SMS messages to her and in his evidence, that she should not bring all her “boyfriends” around to his house when she was spending time with the children. His unsophisticated understanding of “boyfriend”, he explained, did not mean to convey that the Mother was in multiple sexual relationships.[31] Later he confirmed that he had advised the Department of Family and Community (“FACS”) services that the Mother had “lots of boyfriends and was bringing them all around.”[32] Again, in my view, the Father knew precisely what he was doing in making such comments to FACS; he was again seeking to damage the Mother in the eyes of this important Department and thereby strengthening his own position with respect to the children. Whether out of naiveté and or fear, I am in little doubt that the Father invariably put his interests above all else.
[31] T 98.
[32] T 161.
59.It needs to be highlighted the subtle, and again, unsophisticated lengths to which the Father went to ensure that the Mother’s time with the boys was always scrutinised (usually by him) and constrained (again, usually by him). He confirmed that, after separation, he obtained an interim AVO against the Mother, and that when [X] was in hospital for a short time, the Father showed the hospital staff the AVO. He said, in my view, with less than proper candour, that he was just wanting to make sure the hospital staff were aware of the situation between himself and the Mother. Why this was so was not explained. Yet he also confirmed that he never told the Mother about the AVO.[33] In my view, such action clearly showed a level of calculation, if not cunning, by the Father to ensure that his position regarding the boys was highly protected, and that of the Mother was severely compromised and undermined.
[33] See T 100 – 102.
60.The Father confirmed that during the relationship (and doubtless after it) the Mother was the more assertive and directive of the two. He even contended that at times she could be “pretty scary.”[34] This might partly explain, but in my view not very satisfactorily, why the Father involved the police on numerous occasions.[35] Whether out of his fear of losing the boys or having his position compromised by the “assertiveness” of the Mother, the Father seemed regularly to seek the aid or assistance of others to bolster his position. In my view, while there may have been an element of “protection” involved, the Father’s actions were more to protect his position rather than to act in the best interests of the children. Indeed, the Father confirmed that the police became “fed up” with the number of calls they received, primarily, if not exclusively, from the Father.[36]
[34] T 104 – 105.
[35] T 105 & 125.
[36] T 106.
61.Ultimately, the Father agreed that his actions over 2 years had led to the children not spending overnight time with the Mother, and that this was not in their best interests.[37]
[37] T 112.
62.The following comments on the Father’s oral evidence came from his cross examination by Counsel for the ICL.
63.First, the Father acknowledged that he not infrequently forgot to follow up medical and other appointments for the boys, and equally that he sometimes “forgot” to advise the Mother of medical information regarding the children because he got busy and distracted with them.[38]
[38] See T 121 & 154.
64.There was an extensive discussion with the Father regarding comments he had made to the Mother and the children moving away from him. These comments arose in the context of the Father’s historical concern having seen the estrangement between his brother (Mr G) and his Father some years before. This discussion also included consideration of SMS messages the Father sent to the Mother, in the relatively early days after separation, advising her that he would move away (primarily across to Town H, where his Mother lived), that she would be the boys primary (if not sole) carer, and that he would remove himself from the lives of the children.
65.The Father confirmed that the Mother’s responses to such messages were consistently to plead with him (a) not to do so, (b) that the children needed him in their lives and (c) that “we will miss you if you move.”[39]
[39] T 127 – 129.
66.Then followed some other late-breaking news where the Father said that he found some further messages overnight on a computer in which, he said, the parties agreed that if the Mother moved to Town J, the boys would remain primarily in the Father’s care (for “75%” of the time) and spend time with the Mother.[40] This proposed agreement did not eventuate.
[40] T 130.
67.It is important here simply to observe the vacillation of the Father regarding what was/is in the best interests of the children.” Originally, his plan was to get out of the lives of the boys; then it changed to the parties essentially having a 50/50 time with arrangement; it moved again with the Father having the children 75% of the time (if the Mother moved to Town J). To say that there was some uncertainty, and little secure foundation or plan is an understatement. The constant factor was the Mother consistently seeking more time with the boys and the Father essentially running a “blocking” plan of resistance: it took the Mother two years to secure overnight time with the boys.[41]
[41] T 131 – 134.
68.To be fair (in a somewhat curious way), the Father was still trying to get the Mother back into a relationship with him and much of his action was calculated to this end, and if/when this did not occur, his fear of losing the boys took precedence over all else.[42] Indeed, he confirmed at one stage that he wanted effectively to supervise the Mother’s time with the children to ensure that she would not abscond with them.[43] He accepted that his actions meant that the Mother’s time with the boys was “not great.”[44] For example, the following exchange highlighted the poor dynamic for the parents and even more so for the children:[45]
[42] T 133 – 134.
[43] T 134.
[44] T 135.
[45] T 135. Similar comments are at T 136 – 137.
And can you accept, firstly, from her perspective, why the amount of time you were letting her have in that supervised environment wasn’t great time? Can you accept that from her perspective?‑‑‑Wasn’t a great time?
Wasn’t great time with the boys?‑‑‑Yes, at the time it wasn’t.
That you were always present. You two were fighting a lot. You were always supervising. You wouldn’t let her take them out of your sight. That that wasn’t very great time for her to spend with the boys, was it?‑‑‑Yes.
So, from her perspective, that wasn’t ideal?‑‑‑No.
Can you accept that?‑‑‑Yes.
Can you accept why she was getting frustrated with you during that period of time, because you were keeping her on a pretty tight rein, weren’t you?‑‑‑Yes, we both were but ‑ ‑ ‑
Now, thinking about it from the boys’ perspective, up to separation, they have had both of you almost all the time?‑‑‑Yes.
And then, once you get frightened that the boys are going to disappear from your life, the effect of what you’ve done means Mum has disappeared from their life. Isn’t it?‑‑‑At the time, I didn’t think it would.
At the time, you didn’t think of it that way, but that’s what happened, isn’t it?‑‑‑Yes.
Because you weren’t letting her take them away or have overnight time, or have a genuine kind of meaningful relationship with her because she was there for five minutes and then the police came ‑ ‑ ‑?‑‑‑Yes, because an argument would start.
69.While it was regularly the case that the Father could not recall certain details of events, he did confirm that he did not put the Mother on the children’s childcare forms.[46] And he also confirmed that he showed a copy of the AVO, which he had taken out against the Mother, to the childcare centre.[47] This was of course the same AVO he had shown to the hospital but which he had not advised the Mother about – hence my earlier comments about the Father’s care in protecting himself (as opposed to protecting the boys) from what he feared were the purported predations of the Mother in seeking to spend more time with the children.
[46] T 140.
[47] T 141.
70.There was also a discussion about the Father’s fears that the Mother would get someone “to bash him” but which (fortunately) never materialised. He confirmed that he was never assaulted. He confirmed that his concern about the company the Mother kept was another reason, he said, to question her “mental health.”[48] This was quite an absurd proposition, which was explored and challenged in further cross-examination.
[48] T 143 – 145.
71.But again he used the AVO when speaking with the Child Support Agency which led to him obtaining an exemption from being assessed.[49] In my view, this was more than surreptitious, and was in fact a calculated course undertaken by the Father again to shore up his position in as many respects as possible.
[49] T 141.
72.The Father further confirmed that his actions were based on his fear of (a) the Mother leaving him (and not resuming their relationship) and (b) especially the boys leaving with her. His actions, in my view, clearly focussed on restricting the Mother’s time both as to duration and for it to be “daytime only”. The Father also confirmed that it took 2 years, post-separation, for the boys to re-commence spending overnight with the Mother.[50] Together with the Father’s initial insistence on a time-with regime with the Mother that involved very regular change-overs, his actions, in my view, showed an alarming lack of insight into what was best for the children. As mentioned already multiple times, his primary focus was protecting his own position rather than the best interests of his young sons and their need to spend regular and significant time with their Mother.
[50] T 147.
73.Later, after many questions, the Father conceded that, because of his actions with the respect to limiting the Mother’s time, the boys had “missed out” and that their relationship with the Mother had been damaged.[51] He also confirmed that the boys miss their Mother.[52]
[51] T 157.
[52] T 158.
The Family Report
74.The Family Report of Ms E, dated 19th September 2018, became Exhibit A. In my view, the following parts of that Report are most relevant to the Court’s determination of the issues before it now.
75.After noting the co-operative attitude of the Mother during the interview, and the Father’s initial bitterness about the circumstances of the parties’ separation (par.32), and the Father being “quite matter-of-fact about not doing any of the travel involved in the boys seeing their Mother” (par.37), Ms E noted the following matters.
76.First, because there was later evidence during the trial, I will not record here the Father’s accusations against the Mother noted by Ms E regarding (a) the Mother’s multiple boyfriends (par.54), or (b) the alleged mental health issues of the Mother (pars.58 - 63).
77.Secondly, notwithstanding their young age, especially at the time of the interviews for the Family Report, there is some merit in setting out the brief observations of the children, thus (pars.70 – 72 & 75 – 80):
CHILDREN
[X] (5 years 1 month)
70. At the end of the observation session with his mother, [X] announced that he wanted to talk to me, before changing his mind. After I spoke to Mr L, [X] was very resistant about talking to me by himself, despite his mother encouraging him to do so. He clung to his mother on the couch in the waiting room and I was not able to interview him alone. Neither boy would separate from their mother to be observed with their father.
[Y] (3 years 7 months)
71. [Y] was too young to interview by himself.
72. Mr Tavender described the boys as generally being “good kids” and said they got along well with each other. He said [Y] was better behaved when he was by himself. Mr Tavender seemed to have a good sense of the children, describing [X] as kind-hearted and keen to comfort people. Mr Tavender anticipated [Y] would be fine when [X] started school, noting [Y] was happy by himself or with other children. [Y] would attend extra days of preschool next year while [X] attended school.
OBSERVATIONS OF INTERACTIONS
The children and their mother
75. The boys happily came into my office with their mother, playing with toy aeroplanes she had bought them. The aeroplanes pulled apart. Ms Gilborne asked the boys “Did you go to the park with Dad?” and was told that they did. Ms Gilborne continued to assist the boys with their toys. [Y] confidently asked his mother for assistance and Ms Gilborne responded by saying she would start building the toy for him.
76. While playing, [X] announced “I want to stay with Mum”. Ms Gilborne advised she had started telling the boys about coming to see me the week before, so they were prepared. The boys began eating some sultanas and Ms Gilborne told them she had some oranges in her car that she had picked off a tree. She continued to encourage the boys to rebuild their aeroplanes, assisting where necessary, but urging them to do the task themselves.
77. Ms Gilborne began to discuss the difficulties she experienced toilet training [Y], complaining Mr Tavender would put him back into nappies after her visits. The boys happily vied for their mother’s attention. Ms Gilborne commented on the boys’ long eyelashes. [X] asked what I was looking at and [Y] continued to play quietly. Ms Gilborne said she had bought the toy aeroplanes to assist the boys’ hand eye coordination. [Y] came over to me, touching me on the face before telling me he had been to play in the park.
The children and their father
78. The boys were somewhat reluctant to separate from their mother, appearing upset about the prospect. This was not surprising given the limited amount of time they have with her. After a few minutes, Ms Gilborne brought the boys into the interview room, assuring them she would wait outside. Both boys continued to refuse to separate from their mother and Mr Tavender calmly commented about [X] “He gets stubborn and frustrated”, while also trying to persuade the boys. He recognised [X] was particularly upset because the boys did not see their mother very often.
79. When I asked about him taking the boys home, Mr Tavender volunteered that Ms Gilborne could spend some more time with them in Town D after the interviews if she wanted to do so and said he would “hang around”. He also suggested Ms Gilborne could bring the children back to his house if she wanted to do so. Mr Tavender calmly asked the boys to come in so he could tell them about spending some time with their mother afterwards. [X] nodded when his father asked him if he would like to stay overnight with his mother sometimes.
80. The parties readily negotiated the boys spend some time with their mother after the interviews with me. Although he had prepared lunch for the boys, Mr Tavender agreed to them going for lunch with their mother and then arranged to pick them up because Ms Gilborne could not drive the extra distance involved to take them back to his house. The boys began discussing what they should have for lunch. [X] continued to cry about wanting to stay with his mother. Ms Gilborne calmly acknowledged what the little boy said and told him they were going to have some lunch.
Oral Evidence of the Family Consultant
78.The oral evidence of the Family Consultant, Ms E, was quite brief and confined to a very modest number of issues. It was also somewhat difficult due to it being done by telephone, added to which the clarity of the telephone line (among other things) was occasionally problematic.
79.Ms E confirmed that, for example, if the circumstances outlined by the Father about an allegation that he was “bashed” at the instigation of the Mother were incorrect, such an unfounded allegation would be a cause of concern. Elaborating, she went on to say that if the Court found that the Father had misrepresented what had happened, this would be “concerning.”[53]
[53] T 69 – 70.
80.Ms E acknowledged that the communication between the parties was very poor.[54]
[54] T 71.
81.In relation to the possible risks of a change in residence of the children, the following exchange between Counsel for the ICL and the Family Consultant summarised the “pros and cons” as follows:[55]
The mother maintains her position that she wants the children to live with her. Obviously a change of residence would have some risks. I want to suggest some of the risks to you and see if there’s any that I have missed. One would be that her relationship with the children is not yet secure and that would present an obvious risk to the children. One is that the children’s relationship with their father could be negatively impacted on by the move and that would have an obvious negative impact on the children. One would be that the mother doesn’t cope, practically speaking, with the boys and with her other children that she has responsibility for, but there’s also one that the mother would not cope with the psychological needs of the boys if they were missing their father. And the last one, I would suggest, is that the mother wouldn’t foster a good enough relationship with the father. Does that cover all of those risks of changing residence?‑‑‑I’m just thinking it through. Yes, look – yes, there is usually quite a number of risks about that, but that sounds reasonably comprehensive of the top – top of my head right now. Yes.
[55] T 73.
82.After some further general discussion about similar matters, there followed a specific consideration – again, admittedly, brief – regarding the various “options” open or available to the Court, subject to matters of evidence:[56]
So what I’m suggesting is that the two parties’ cases come down to two different risks?‑‑‑Yes. Thank you.
If the children stay with dad, in accordance with his orders, there is a risk, on the mother’s case, that the father will not facilitate her time with the children?‑‑‑Yes.
And that’s based on what she says is the history of his not facilitating her time with the children. Compared to that, we have the risk of changing residence from where the boys have been settled now for three years post-separation. And that’s what the mother wants to have happen. So from his Honour’s perspective, he has a risk to the boys of changing primary residence and a risk to the boys of having a less meaningful relationship with their mother than they are entitled to. Are you able to assist his Honour with balancing those risks for these boys?‑‑‑I thought you – I mean, it would be – I haven’t obviously seen the parties for some time now, but I thought you told me that they have been – that they have been seeing their mother overnight since November, so that would be nearly six months, so I don’t know how the father – it would be of interest to know – this is your first risk – how well the father has facilitated that time, because I’m assuming the parties to live – I think it was a couple of hours apart? So the – that might inform the future, how well he has been complying with facilitating the overnight visits now. I think that would be of interest.
[56] T 74.
83.These matters were further explored in the following discussion:[57]
MS DAVIS: ‑ ‑ ‑ on both parties’ side is that it’s going well, that time is continuing, in accordance with the interim orders from November 2017. Into the future, the father says, “I don’t know how long I can do this because it is so very difficult for me and so expensive.” Does that assist with your balancing exercise?‑‑‑Well, I think it would assist. These are issues that might assist the judge, with all due respect, in terms of, you know, the father has been – presumably facilitation – if he – I don’t know the specific – maybe I’m not sure what he – what he is referring to or what outcomes he’s hoping for in terms of it being difficult – I don’t know if they meet partway or if Ms Gilborne does come to the transport – I just don’t know what’s happening now. So that’s – whether what he’s saying is a global objection to the amount of time or a concern about the cost and time, which can be addressed, perhaps, by – I don’t know, by sharing the expense or by meeting partway. These aren’t wealthy people. I’m just not sure where he – where that objection was coming from, so that would be my comment about that first risk. The second risk, I think we’ve – obviously that we’ve talked about the children being unsettled by a move. Presumably, you know, they’re either in day care or school or kindergarten, that all that will be disrupted and have to be re-established elsewhere as well, and I’ve talked about, in paragraph 84, I’m guessing now Ms Gilborne has another baby, so they’re going to have to adjust to a household with other young children in it, and I’m assuming her relationship with Mr L is still going on, so, you know, a different father in the house, so there’s quite an adjustment for the children in that move.
[57] T 75.
84.In the light of all matters considered, Ms E agreed with my assessment and general proposition that the matter was “finely balanced.”[58]
[58] T 76.
Outline of Submissions on behalf of the ICL
85.For completeness I simply note here that at the conclusion of the trial, on the principal issue of the primary residence of the children the parties and the ICL made detailed oral submissions.[59]
[59] See T 180 – 193.
86.The ICL, who delivered submissions first, argued as follows (in outline).
87.First, the matter was delicately poised and difficult.
88.Secondly, the geography of where the parties lived aided no one.
89.Thirdly, if the parties lived closer together, an equal time arrangement would likely be the result and best for the children.
90.Fourthly, the ICL was of the view that there were real concerns about the Father’s capacity and insight to ensure that the children had a meaningful relationship with the Mother. This submission was made in a number of different ways, including that the Father had, it was submitted, gone to significant lengths to exclude or at least to minimise the children’s time with the Mother. It was the ICL’s view that the Mother was better placed to promote the children’s relationship with the Father than the reverse.
91.Fifthly, on the evidence, the ICL was of the view that the Father was either lacking in credibility, or was lacking in insight, regarding various and consistent events recorded that ultimately led to a reduction and or significant difficulty in the children spending time with the Mother.
92.Sixthly, an important consideration was the children’s relationship with the siblings in the Mother’s household.
93.Seventhly, there was substantial evidence that the children have a good and close relationship with both parents, although it is still developing further with the Mother due to the limitations imposed on her time by the Father.
94.Eighthly, there were issues recounted in the evidence of the Mother either not being advised by the Father of decisions regarding the children, or her opinion being obviously ignored (e.g. the Father having the children’s ears pierced).
95.Ninthly, the Mother had shown good strategies with the children while the Father had not shown the same practical insight.
Outline of Mother’s Submissions
96.The Mother’s Counsel adopted the submissions of the ICL and added the following matters, again briefly stated.
97.The Mother submitted that the Father’s actions in excluding and restricting her time with the boys was deliberate and calculated. This included the Father’s artful use of the AVO by showing it to the hospital and the child-care centre.
98.The Mother also submitted that it was only after the release of Ms E’s Report that the Father consented to the Mother spending overnight time with the boys. Even then, notwithstanding agreement, overnight time did not commence for a very significant period of time. This had the effect, among other things, of depriving the children of important time with their Mother and impaired their relationship with her.
99.The Mother further submitted that the issue of communication between the parties was probably the most vexed aspect of the matter. The Mother accepted that the Father had tried to ensure that the children maintained contact/communication with their Mother, but was otherwise at a loss how to improve matters more generally.
Outline of Father’s Submissions
100.Counsel for the Father rejected the submission that the Father’s actions were calculated (and selfishly so) to deprive the children of their proper and rightful time with their Mother. He acknowledged that there was a very long period of time without overnight time for the Mother and the boys. That said, it was submitted that the Mother was still spending regular and significant time with the children.
101.Counsel for the Father acknowledged that the Mother had filed an Application in a Case seeking overnight time but argued that there was no [further] Application by the Mother for an interim hearing regarding that Application. In my view, this was more of a debating point rather than one of much substance.
102.The Father did acknowledge that the children were somewhat “clingy” with the Mother and somewhat disturbed but that things were generally “settling down” in this regard.
103.The Father argued that the Court could be completely assured that, once Orders were made, there would be both certainty for the parties and compliance with them.
104.The Father conceded that he had not taken the initiative regarding making arrangements for the children’s increased time with the Mother.
Consideration & Disposition: Primary Residence
105.In the light of the evidence and the comments I have made in the course of setting it out earlier in these reasons, and following sequentially those “considerations” in Part VII of the Family Law Act1975 (“the Act”) (without actually naming each sub-paragraph) that are directly relevant to the matters at hand, I note the following.
106.First, the children have a good and close relationship with both parents. There still needs to be some concerted “repair work” done between the Mother and the children given the significant period of time where she was denied overnight time with them. Moreover, the observations of Ms E, as well as the evidence of the Father that the children were “clingy” with the Mother (reasonably indicating that they did not want to be separated from her) confirm the importance of the need for further work on that central relationship in the lives of the boys.
107.Secondly, the evidence plainly shows that the Father has not facilitated or encouraged the children’s time with the Mother. Indeed, he has done quite the opposite. He has, in my view, endeavoured to restrict and monitor the Mother’s time with them. I am satisfied that he has not acted in their best interests, or has done so in a misguided manner as to what he believed were in their best interests. Mostly he acted, as earlier noted, in his own interests because of his fear of losing the children to the Mother.
108.Thirdly, there are quite significant logistical (i.e. practicality and expense) issues given the residence of both parents. I generally agree with Counsel for the Father that if the parents lived in closer proximity it is likely that a shared care arrangement (or something close to it) would apply.
109.Fourthly, it is properly inferred from the evidence that there are not insignificant areas where the Father is lacking in insight regarding the best interests of the children insofar as they concern the importance of the Mother in their lives.
110.Fifthly, the development of the boys in their relationships with their siblings in the Mother’s household are of particular importance, and weigh importantly in the Court’s considerations.
111.Sixthly, the poor communication between the parties requires significant attention.
112.Seventhly, in my firm view, the Mother showed the clearer insight and attention to what is actually in the children’s best interests. I am very strongly of the view that the Mother will support, encourage and facilitate the children in their relationship with the Father. I am significantly less confident in the Father’s willingness and capacity to do likewise vis-à-vis the Mother and the children.
113.For these reasons, I am firmly of the view that it is in the best interests of the children that they reside primarily with the Mother. This being the case, there needs to be some consideration now regarding what will be the best arrangements for the children to transition from the Father’s household and to move to the Mother’s.
114.Following the Court’s determination of the primary residence of the children, directions were made for the filing of written submissions regarding the transition and spend time with arrangements as between the Father and the children.[60] This was also in circumstances, as noted earlier in these reasons, where the Father had indicated that he was considering moving closer to the Mother.
[60] See T 195 – 196.
Transition Arrangements & “other considerations”
115.As the submissions below record, the Father filed his written submissions outside the time agreed and ordered. Nonetheless, they are set out below and the Court has considered them.
116.The Applicant Mother’s further submissions, regarding the time with arrangements for the children and the Father, and other matters, were as follows:
1. These parenting proceedings relate to the children, [X] born … 2012 and [Y] born … 2014.
2. On 4 April 2018 the Court ordered that the children live with the mother. The Court made subsequent Orders in relation to the filing of transition and spend time with Orders.
3. On 9 May 2018 the Independent Children’s Lawyer (‘ICL’) filed a proposed Minute of final Orders.
4. On 10 May 2018 the Mother confirmed via email to the parties and the Court that she consents to the final orders as proposed by the ICL and therefore does not wish to make any further submissions with respect to the Orders as proposed by the ICL.
5. On or about 23 May 2018 The father advised the parties that he was finalising instructions regarding the Proposed Orders as submitted by the ICL.
6. On or about 29 May 2018 the Father provided amended Proposed Orders to the parties via email.
7. On or about 29 May 2018, the Father sought leave to file submissions out of time, which was opposed by the ICL and the Mother.
8. On 30 May 2018, His Honour granted leave for the submissions to be filed out of time and made an Order for the filing of submissions by close of business on 1 June 2018.
9. The Father filed submissions to the proposed Minute of Orders on 1 June 2018.
10 These written submissions are only in response to the Proposed Minute of Orders as sought by the Father as the Mother has no objections to the proposed Minute of Order as submitted by the ICL.
Transition period - midweek time
11. The ICL proposes at Order 4.b (ii) that the children spend time with the father each Wednesday from 4.00pm until 6.00pm in Town A. Whilst the father would like to spend as much time with the children, such contact is not practicable. This requires the father to travel a round trip of 412 km (approximately a 5 hour 10 minute drive) for 2 hours of contact. Due to the distance between the parties this is not practicable and as such the father’s Minute does not provide for mid-week time. The Mother has no objection to a Minute of Order that does not provide for mid week time. However the Mother would also not object to an Order which confirms that if the Father is travelling to the Town A region and would like to spend time with the children that 14 days notification be provided to the Mother and any such request shall not be unreasonably withheld.
Ongoing arrangements – weekends which fall on a long weekend
12. The father at Order 6.b and 6.c proposes that in the event that the children are spending the weekend with him and that weekend falls on a long weekend (either a Friday or a Monday) that the children’s time with him be extended to include that extra day. This will allow the children to have greater contact during the school term with their father and their paternal family. The Mother has no objection to the extension in the Father’s time in the event that the weekend falls on a long weekend and or the children have a pupil free day on either day that the Father’s time is extended provided that the Father provides 14 days written notification to the Mother of his intention to have the additional time with the children, noting the distance between the homes.
The children’s birthdays
13. The father proposes that the children be able to spend time with the parent they are not spending time with on their birthdays at times and places as agreed but failing agreement from 1.00 pm until 5.00 pm. This will allow the children to spend time with and enjoy their birthdays with both their parents. The Mother once again has no objections to this amendment as requested by the Father, however the Mother seeks that the time occur in the region in which the children are residing at the time.
Telephone contact
14. The father agrees with the ICL that the children should have reasonable telephone communication with their parents but proposes this occur no less than on Monday, Wednesday and Friday’s between 5.00 pm and 6.00 pm. The ICL proposes telephone communication occur between 6.00 pm and 7.00 pm, however the father instructs that current telephone time occurs between 5.00 pm and 6.00 pm and any later is disruptive to the children’s bedtime routines.
15. Whilst the Mother has no issues with the change in times, the Mother proposes that the ICL Orders as to the days remain that being that the telephone contact occur no less than on a Tuesday and a Thursday. The basis for this is that if the parent has telephone contact on a Friday it will be whilst the children are travelling every second weekend between the residences and more often than not this time will be when there is no service. It is the Mother’s submission that the Orders as proposed by the ICL do not prevent the parties from mutually agreeing to additional time outside of the Orders and therefore the parties if agreeable will be able to have additional telephone communication in any event.
Changeover
16. The ICL proposes that when the father collects the children he does so from the children’s school or day-care and if not available from the mother’s home. The father submits this is impracticable and seeks to collect the children from the mother’s home on all occasions.
17. The child [X] has been enrolled in School M in Town A, 27.7kms from the mother’s home in Town C. Changeover at the school would add an extra 60 kms to a 360 km trip.
18. Whilst the Mother has no objection to the changeovers occurring at the Mother’s residence, the Mother submits that the time as proposed by the Father is impractical as the children will not arrive in Town C until just after 4.00pm and therefore a time of 3.30pm is not possible accordingly the Mother submits that a time of 4.30pm is more practical if the changeovers are to be at the mother’s residence.
19. The Mother is seeking that the time conclude in accordance with the ICL proposal being 3.00pm. The Mother submits that this will then mean that the children will arrive home after spending time with the Father between 5.00pm and 5.30pm. If the time is extended to 4.30pm being the time that the Father collects the children from the Mother’s home then it would have the children arriving home on a Sunday afternoon between 6.30pm and 7.00pm, the family then still have to have evening meals and prepare for school the following day which would potentially make it a long day for the children.
Relocation
20. The father proposes additional Orders (20-21) that restrain the mother from relocating the children away from the Town A region.
21. Whilst the Mother has no objection to such an Order being made the Mother proposes that the Order should be expanded to include “without the written consent of the Father and or a Court Order.” The Mother submits that this will then enable the parties to discuss any future relocation and if the Mother wishes to relocate closer to the Father and there is no disagreement to this occurring then the Mother will be able to relocate.
22. It is submitted by the Mother that the current Proposed Order by the Father means that the parties would still be required to attend Family Dispute Resolution even in the event there is an agreement.
Notation
23. The Mother submits that the notation is not required and is obsolete. The parties are aware that any Order will not be made by Consent and that the Final Orders are being made following a Final Defended Hearing.
Submissions on behalf of the Respondent Father
117.The Father’s out of time submissions, but filed pursuant to leave, regarding transition arrangements and other things, filed 1st June 2018, were as follows:
1. These parenting proceedings relate to the children, [X] born … 2012 and [Y] born … 2014.
2. On 4 April 2018 the Court ordered that the children live with the mother. The Court made subsequent Orders in relation to the filing of transition and spend time with Orders.
3. On 9 May 2018 the Independent Children’s Lawyer (‘ICL’) filed a proposed Minute of final Orders.
4. The father seeks some amendments to the Orders which are detailed below. Those proposed Minute of Orders are attached. These written submissions are in response to those Orders.
Transition period - midweek time
5. The ICL proposes at Order 4.b (ii) that the children spend time with the father each Wednesday from 4.00pm until 6.00pm in Town A. Whilst the father would like to spend as much time with the children, such contact is not practicable. This requires the father to travel a round trip of 412 km (approximately a 5 hour 10 minute drive) for 2 hours of contact. Due to the distance between the parties this is not practicable and as such the father’s Minute does not provide for mid-week time.
Ongoing arrangements – weekends which fall on a long weekend
6. The father at Order 6.b and 6.c proposes that in the event that the children are spending the weekend with him and that weekend falls on a long weekend (either a Friday or a Monday) that the children’s time with him be extended to include that extra day. This will allow the children to have greater contact during the school term with their father and their paternal family.
The children’s birthdays
7. The father proposes that the children be able to spend time with the parent they are not spending time with on their birthdays at times and places as agreed but failing agreement from 1.00 pm until 5.00 pm. This will allow the children to spend time with and enjoy their birthdays with both their parents.
Telephone contact
8. The father agrees with the ICL that the children should have reasonable telephone communication with their parents but proposes this occur no less than on Monday, Wednesday and Friday’s between 5.00 pm and 6.00 pm. The ICL proposes telephone communication occur between 6.00 pm and 7.00 pm, however the father instructs that current telephone time occurs between 5.00 pm and 6.00 pm and any later is disruptive to the children’s bedtime routines.
Changeover
9. The ICL proposes that when the father collects the children he does so from the children’s school or day-care and if not available from the mother’s home. The father submits this is impracticable and seeks to collect the children from the mother’s home on all occasions.
10. The child [X] has been enrolled in School M in Town A, 27.7kms from the mother’s home in Town C. Changeover at the school would add an extra 60 kms to a 360 km trip.
Relocation
11. The father proposes additional Orders (20-21) that restrain the mother from relocating the children away from the Town A region.
12. The mother during the proceedings relocated form Town B to Town C. The father holds concerns that the mother may seek to move the children in the future and this may impact the ability of the children to spend time with their father pursuant to the Orders.
13. If the mother wishes to relocate the children the parties can attend family dispute resolution to discuss that issue.
The Final Orders
14. The father’s notes that the Court made an Order on 4 April 2018 for the children to live with the mother which was opposed by the father. The father’s consent to the spend time with arrangements in the Minute is a consequence of that determination.
118.Curiously and unfortunately, as already observed, the ICL filed no written submissions.
[Further] Consideration and Disposition
119.On 5th October 2018, the Court delivered oral reasons regarding the remaining matters pertaining to, among other things, transition and time with arrangements between the children and the Father. What follows are those reasons revised from the transcript.
120.As already noted, on 4th April 2018, at the conclusion of a contested hearing, I delivered ex tempore reasons (revised and set out above) in relation to Orders whereby the two children of the relationship, [X] (aged 6 years) and [Y] (aged almost 5), would thereafter live primarily with their Mother (who lives in Town C, about 20 kilometres from Town A) and spend time with their Father, who lives some 200 kilometres away, in Town B.
121.In what follows, of course the Court relies upon what is contained earlier in these reasons, principally the evidence of the parties as set out and commented upon, as well as the brief discussion of the relevant provisions of the statutory scaffold/pathway in Part VII of the Act.
122.There are now, relatively speaking, few issues between the parties. This is in circumstances where the Father was given the opportunity to provide submissions, or otherwise to advise the Court, whether he was willing or able to move closer to the Mother’s residence. There is no indication that he can or will do so. I do not say this critically.
123.The ICL has provided a Minute of proposed Orders. As earlier recorded, unfortunately, and rather curiously, the ICL declined or otherwise chose not to file any submissions. She said that she “relied” upon her Minute of proposed Orders. This rather left the Court without the benefit of the “views” of the ICL. Why this was so was not explained, so far as I am aware. Written submissions, however brief, should have been provided. The parties provided helpful submissions, albeit that the Father filed his submissions out of time, with the leave of the Court.
124.In very general terms, both parties agree with much if not most of the Orders proposed by the ICL. In what follows, I will simply (a) note each of the Orders that are agreed, (b) note those Orders that are not agreed and why, and (c) thereupon make a determination and give brief reasons why. This is also in the context of (i) the Family Report of Ms E (Exhibit A), albeit somewhat dated now, (ii) the parties’ evidence given at the final hearing (which obviously played a very significant part in the Court’s determination regarding the primary residence of the children, including the very favourable and frank evidence of the Mother in particular, and (iii) the legislative pathway set out in many cases including Mazorski v Albright by which the Court has due regard to making Orders that are in the best interests of the children, pursuant to s.60CA of the FLA.[61]
[61] Mazorski v Albright (2008) 37 Fam LR 518 especially at [3] – [6] and [20] – [26].
125.First, all parties agree that there should be an Order for equal shared responsibility in relation to both children. That Order will be made by consent. Matters of logistics tell easily and readily against the appropriateness of an equal time arrangement pursuant to s.65DAA. The matters of practicality discussed earlier in these reasons also tell against any Orders that would otherwise qualify as “substantial and significant” time pursuant to the same section.
126.Secondly, the Mother essentially agrees with the Orders proposed by the ICL.
127.Thirdly, both parties agree that the so-called “transition mid-week” orders are unworkable, given the geographical distance between the parties. I agree. It would be virtually impossible for the parties (and the children) to facilitate or comply with a proposal that there be a mid-week time of the children with the Father for 2 hours in Town A. It would involve a drive of some 5 hours or thereabouts.
128.Fourthly, I agree with and accept the Mother’s proposal that, if the Father is in the Town A area, and provided he gives the Mother’s 14 days’ notice, she will facilitate such extra time as is reasonably practical, and perhaps at a minimum of 2 hours between 4 – 6pm.
129.Fifthly, both parties agree that if the children are with the Father on a long weekend, or a pupil-free day, the children should spend the holiday Monday (or extra day) with him and return to the Mother thereafter. The Mother only (and in my view, quite reasonably) seeks in this regard that the Father notify her of his intention to have the children for the extra day. I agree that such notice, if for no other reason than planning purposes, is appropriate.
130.Sixthly, both parties agree with the proposal for the children to spend time with both parents on the children’s birthdays. The Mother only seeks that the “birthday time” occur in the region where the children are residing at the relevant time. This seems reasonable given the limited time they will have with the parent in question and not be too disruptive to their regular routines, especially regarding school.
131.Seventhly, both parties generally agree with the proposed regular telephone time. The parties themselves propose that the time for this to occur, as it does at the present, between 5 – 6pm. I agree. The Mother’s issue with the current proposal is that if telephone time occurs on a Friday, this would usually coincide with the children being en route to the other parent. I agree. The Order shall be that telephone time shall be no less than twice per week, Tuesdays and Thursdays between 5 – 6pm, plus one other occasion each week as agreed between the parties in writing (including by SMS).
132.Eighthly, regarding changeover, the issue again is primarily one of logistics: should changeover be at the school or at the Mother’s residence. The Mother does not oppose changeover being at her residence but submits that the time for changeover – again by reference to distances to travel – should be (a) on school days at 4.30, and (b) on Sunday (or extra day with the Father) at 3pm, to allow travel and attendant re-grouping and preparation for the next days’ activities. I agree. Such a course is both practical and in the best interests of the children. It will also assist the parties.
133.Penultimately, regarding “relocation”, I agree with the proposal that the Mother be restrained from relocating the children’s residence without either the Father’s written consent or an Order of the Court. Both parties otherwise agree that they will attend Family Dispute Resolution regarding any other changes in the future, including any proposed relocation.
134.Finally, in my view, having regard to the previous Orders following the final, defended hearing, it is otherwise unnecessary to have a specific notation regarding what, if any Orders are made by consent. On the face of the Orders, it is specified if any Orders are made by consent. Absent such a notation, it is always taken that the Orders are made by the Court, and implicitly not by consent.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 30 May 2019
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