Hadad & Issa
[2024] FedCFamC2F 1347
•30 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hadad & Issa [2024] FedCFamC2F 1347
File number(s): PAC 5858 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 30 September 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited: Banks & Banks (2015) FLC 93-637 at [49]
Jollie & Dysart [2014] FamCAFC 149 at [49]
Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]
Division: Division 2 Family Law Number of paragraphs: 76 Date of hearing: 10 – 12 September 2024 Place: Parramatta Counsel for the Applicant: Ms Coulton Solicitor for the Applicant: JE Justice Legal Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Reid Solicitor for the Independent Children's Lawyer: Ark Law ORDERS
PAC 5858 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HADAD
Applicant
AND: MS ISSA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Mother shall have sole decision-making responsibility about major long-term issues for the children, Y born in 2015 and Z born in 2021.
2.The Father shall have sole decision-making responsibility about major long-term issues for the child, X born in 2012.
3.For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision in relation to Z and Y, the mother will notify the father as follows:
(a)Advise the father in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the mother;
(b)Provide the father with all relevant information which is in the possession of mother relating to the long-term issue;
(c)Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the father before making a decision; and
(e)Inform the father of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
4.For the purpose of Order 2 and except in the event of an emergency, before making any major long-term decision in relation to X, the father will notify the mother as follows:
(a)Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the father;
(b)Provide the mother with all relevant information which is in the possession of father relating to the long-term issue;
(c)Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the mother before making a decision;
(e)Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
Live with
5.The children Z and Y shall live with the mother.
6.The child X shall live with the father.
Time with
7.Y shall spend time with Father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non-school day.
8.From the date of these Orders and for the next six (6) months, Z will spend time with the Father from 9.00 am on Saturday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
9.Following the completion of Order 8 and for the next six (6) months, Z will spend time with the Father from 3.00 pm on Friday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
10.Following the completion of Order 9 and thereafter, Z will spend time with the Father from 3.00 pm on Friday to the commencement of school on Monday (or Tuesday if Monday is a non-school day) each alternate weekend with such time to coincide with Y’s time with the Father.
11.Y and Z will spend time with the Father each alternate Thursday (week 2) from 5:00 pm to 7:00 pm. In relation to this time, the Father shall collect Z from her daycare and collect Y from the mother’s residence, and he shall return these children to the mother’s residence at the conclusion of his time pursuant to this Order.
12.From 19 October 2024 and for the next six (6) weeks, X will spend time with the Mother from 9.00 am to 6:00pm on each alternate Saturday.
13.Following the completion of Order 12 and for the next six (6) weeks, X will spend time with the Mother from 9:00am Saturday until 6:00pm on Sunday each alternate weekend.
14.Following the completion of Order 13 and for the next six (6) weeks, X will spend time with the Mother from the conclusion of school on Friday to 6.00 pm on Sunday.
15.Following the completion of Order 14 and thereafter, X will spend time with the Mother from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non-school day.
16.For the purpose of Orders 12 to 15, X’s time is to occur with the time Z and Y are with the Mother.
17.At any other time as agreed between the parties in writing.
Time Spent School Holidays
18.Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the short school holidays as follows:
(a)With the mother for the first half of each of the short school holidays at the conclusion of terms 1, 2, and 3 in odd numbered years and the second half of each of the short school holidays in even numbered years; and
(b)With the father for the first half of each of the short school holidays at the conclusion of term is 1, 2, and 3 in even-numbered years, and the second half of each of the short school holidays in odd-numbered years.
(c)The above school holiday time for X is not to commence until March 2025.
19.Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the long school holidays following term 4 as follows:
(a)With the mother:
(i)in odd-numbered years, for the first half of each long school holiday; and
(ii)in even-numbered years, for the second half of each long school holiday.
(b)With the father:
(i)in even-numbered years, for the first half of each long school holiday; and
(ii)in odd-numbered years, for the second half of each long school holiday.
(c)That the above school holiday time for X is not to commence until March 2025.
20.Notwithstanding Orders in relation to school term time, Z spend time with the Father in the school holidays pursuant to Orders 8 – 10 with such time to be extended to Monday to 6.00 pm from the date of the Orders and for a period of 6 months.
21.From the conclusion of Order 20 until Z commences primary school, such time will be extended to 9.00 am on Tuesday when the Father is to drop off Z at the childcare centre she is enrolled in.
22.From when Z commences primary school, Z spend time with the Father in accordance with Orders 18 and 19.
Holiday Midpoint
23.The mid-point of school holidays will be determined as follows:
(a)The half-way point of each school holidays will be calculated by dividing the number of nights in each school holidays by two;
(b)The first half will commence at the conclusion of school on the children’s last day of school of each school holidays and conclude at 12.00 pm on the date that is the half-way point of each school holidays;
(c)The last half will commence at 12.00 pm on the date that is the half-way point of each school holidays and conclude on the morning the children return to school following the school holidays; and
(d)In the event there is an uneven number of nights during any of the school holidays, the children will spend one extra night with the Mother in odd‑numbered years and with the Father in even-numbered years.
Special Occasions
24.The children will spend time with the Father and the Mother’s time will be suspended between 10.00 am and 5.00 pm on Father’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
25.The Father’s time with the children is suspended and the children spend time with the Mother between 10.00 am and 5.00 pm on Mother’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
26.Notwithstanding any Order in relation to school term time or school holidays, the children will spend time with each of their parents during religious holidays (collectively referred to as “Religious Holidays”) as announced by the Country B Association as follows:
(a)In odd-numbered years:
(i)With the Mother from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii)With the Father for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
(b)In even-numbered years:
(i)With the Father from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii)With the Mother for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
27.For the child/ren’s birthday each year:
(a)If a school day from after school / 3.00 pm until 6.00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday;
(b)If a non-school day from 9:00 am until 12:00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday.
28.For the parent’s birthday each year:
(a)If a school day from after school / 3.00 pm until 6.00 pm if the children are not ordinarily spending time with the parent on the parents' birthday;
(b)If a non-school day from 9.00 am until 12.00 pm if the children are not ordinarily spending time with the parent on the parents’ birthday.
Changeovers
29.Subject to Order 11, unless otherwise agreed in writing, changeover that does not occur at school or day-care, is to take place at McDonalds at Suburb C.
Family Therapy
30.The parties shall engage forthwith in non-reportable family therapy with an agreed family therapist and any joint sessions are to occur in accordance with the written recommendations of the family therapist.
(a)For the purposes of facilitating Order 30:
(i)The Father is to nominate three family therapists and provide these to the Mother via email to her nominated email address, and the mother shall respond within seven (7) days confirming which therapist she has selected;
(ii)In the event that the Therapist provides a subsidised fee, then within fourteen (14) days of the father nominating a family therapist in accordance with Order 30(a)(i)., the parties are to attend their general practitioner and obtain a referral under a mental health care plan to engage in therapy prior to their respective intake sessions;
(iii)Within fourteen (14) days thereafter, the parties are to make their initial intake appointment to allow the therapist to assess the suitability of ongoing therapy;
(iv)The father is to facilitate X attending the initial intake appointment as arranged with the therapist;
(v)The parties are to follow all written recommendations as given by the therapist;
(vi)The father is to ensure X’s attendance at all appointments in accordance with the recommendations of the therapist;
(vii)The parties are equally liable for any and all fees associated with attending family therapy as charged by the therapist.
Communication between parents
31.In the event of an emergency or an issue arising which requires the immediate attention of the other parent, the parents will communicate by telephone call and/or text message as soon as practicable and within 2 hours.
32.For the purposes of non-urgent communications, the parents will communicate by text messages and/or email.
33.Within 48 hours of the making of these Orders, the parents shall keep the other informed and notify as soon as practicable about all the children’s upcoming and future medical, birthday party commitments, school and non-school extracurricular activities, and appointments.
34.Within 48 hours of the making of these Orders, both parents will keep each other informed with their email address, current residential address and contact telephone number where they can be reached at all times in relation to the children and matters affecting their welfare.
35.Both parents will notify the other parent of any change to those details as soon as practicable after such change, and in any event no later than after 48 hours of the change.
36.The parents advise each other by telephone or text message as soon as practicable upon becoming aware of any of the following in relation to the children:
(a)Any illness or injury requiring a medical examination or medical consultation;
(b)Any illness requiring the provision to the children of any medicine prescribed by a medical practitioner;
(c)Any hospital attendance for examination, consultation or treatment;
(d)Any proposed dental treatment;
(e)Any proposed appointment with any other health professional, including all details as to the health or educational professional and the time of the attendance or appointment;
(f)Any issue of concern raised with either parent by the children’s school relating to their education, welfare or behaviour;
(g)Any issue relevant to the children’s spiritual or religious upbringing.
37.If the children need medical care while with one parent, that parent will promptly notify the other parent, and include the following details:
(a)The name and contact details of the medical professional administering the treatment;
(b)The medical condition for which the children, or any of them, were taken to the medical professional;
(c)Any treatment and/or medication prescribed for or provided to the children, or any of them, and the reasons for same;
(d)The prognosis of the children’s condition such as it is known;
(e)The prescribing or provision of such medication and/or treatment; and
(f)If the children, or any of them, is admitted to hospital: the name and contact details of that hospital.
38.Each parent is entitled to receive all information:
(a)From any medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, or hospital which treats the children, or any of them, including records and notes; and
(b)From any school at which the children attends, or any of them, including copies of the children's school reports, school photos, and any other document ordinarily provided to parents, and this Order serves as authority for that medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or that school to provide that information to either parent requesting such information.
39.In the event that the medical practitioner, allied health care practitioner, hospital or the school forms the view that this Order is insufficient authority to provide the information then each parent will do all things and sign any authority required by the medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or the school to provide the information.
40.Each parent is entitled to attend all school events and extracurricular activities at which parents would normally be present, including sports days, nights, functions, meetings or parent-teacher interviews, noting that each parent may request separate interviews from the school should the school facilitate same.
Communication between children and parent
41.Each parent is to facilitate telephone communication between the children and the non‑caring parent with whom the child/ren are not currently spending time with, at reasonable times at their requests.
42.The mother will facilitate Y and Z to have telephone communication with the father each Tuesday at 6.00 pm for a period of no more than 30 minutes, with the father initiating the communication.
43.The father will facilitate X to have telephone communication with the mother each Wednesday at 7.00 pm for a period of no more than 30 minutes, with the mother initiating the communication.
44.Nothing in these Orders prevents the caring parent from enabling the children to communicate with the non-caring parent at all reasonable times.
45.The parents will respect the children's privacy during these communications.
Non-Denigration and Restraints
46.Without admissions, each parent be restrained by injunction from:
(a)Using physical discipline on the children, or otherwise striking, hitting or punching the child or permitting any other person to do so;
(b)Discussing these proceedings, or showing any document related to these proceedings, to the child/children;
(c)Denigrating the other party, or members of the other party’s family to the child/children or in the hearing or presence of the child/children or permitting any other person to do so;
(d)Relocating the children/child who are living with them a distance of more than 40km from the other parent’s residence;
(e)Changing the names of the children/child unless agreed in writing;
47.For a period of 6 months from the making of these Orders, without admissions, the mother is restrained by injunction from leaving X in the sole care of the Maternal Aunt (Ms D) and Uncle (Mr E).
Passport
48.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, Y born in 2015 and Z born in 2021 are permitted to have an Australian passport and the mother is permitted to apply for, or renew, the children’s Australian passport and the father’s consent to the children having an Australian passport is dispensed with.
49.The mother is to hold Y and Z’s Australian passports.
50.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child, X born in 2012 is permitted to have an Australian passport and the father is permitted to apply for, or renew, the children’s Australian passport and the mother’s consent to the children having an Australian passport is dispensed with.
51.The father is to hold X’s Australian passport.
52.If either parent plans a holiday with any or all of the three (3) children outside of the Commonwealth of Australia, the travelling parent will seek signed written consent from the non-travelling parent and such consent shall not be unreasonably withheld provided the following are complied with:
(a)Give the other parent 60 days' notice in writing of the intended travel arrangements;
(b)Give the other parents at least 21 days prior to any international travel; the parent travelling with the children must:
(i)Provide a copy of return flight tickets and an itinerary of the travel, including:
A.The time and date of departure from and return to Australia;
B.The name of any flight carrier, flight times, and other transport details;
C.Details of accommodation, including address and contact details (telephone number and/or email address);
D.Details on how to contact the children during the holiday.
(c)At least 72 hours prior to overseas travel, subscribe to Smart Traveler or a similar authority of the Australian Government to receive updates on the travel destinations and provide confirmation and details to the other parent.
(d)Ensure the children are covered by a valid travel insurance policy for the duration of the travel, including SARS-CoV-2/COVID-19 cover, and provide a copy of such policy to the other parent not less than 14 days prior to the intended travel.
(e)The travelling parent is restrained from seeking to travel with the children to any country not listed in the itinerary.
53.Unless agreed otherwise, any international travel and domestic travel is to occur during the respective parent’s time with the children.
Ancillary
54.Any individual counselling the children attend is not to be reportable.
55.Within seven (7) days from the date of these Orders, the parents do all acts and things to enrol X in F School in Suburb G to enable him to commence school in October 2024.
56.Both parents are required to include the other parent's details, including their full name, contact number, and status as an emergency contact, in all enrolment forms, medical records, school records, and any other relevant documents or registrations pertaining to the child/children.
57.Each parent must notify the other in writing within seven (7) days of any such enrolment or update, providing a copy of the completed form or registration that includes the other parent’s details.
58.Both parents shall list the other parent as an emergency contact on all forms and documents where emergency contacts are required, ensuring that both parents are promptly notified in the event of an emergency.
59.Each parent must provide written confirmation to the other within fourteen (14) days of the making of these Orders that they have complied with the inclusion of the other parent's details as specified herein.
60.Any changes to the children’s enrolment details or emergency contact information must be communicated to the other parent in writing within seven (7) days of such changes.
61.Both parties shall ensure that the children are provided with correct school uniform at all times.
AND THE COURT NOTES THAT:
A.The father shall bear the full costs of X’s education at F School.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the children X aged 11, Y aged 9, and Z aged 3.
The parties married in 2011 and separated in May 2022.
Interim orders were made on 3 February 2023 by Senior Judicial Registrar Malinowsky having the effect, inter alia, of causing the children to live with the mother, and X and Y to spend time with the father each Friday afternoon to Monday morning on alternate weekends.
Significant conflict occurred between the parties after separation, and a lack of agreement on issues relating to the children’s schooling was addressed by further interim orders made on 24 August 2023.
Since these Orders were made, the parties have often been unable to make joint decisions in relation to what is in the best interests of the children.
This matter was set down for three days. The parties and their legal representatives engaged in their own discussions throughout day one and two. On day three, the parties asked the Court to deal with the outstanding issues on the papers with the assistance of oral submissions.
The oral submissions addressed the main issues outstanding between the parties, including the allocation of decision-making responsibility for major long-term issues relating to the children, and some differing proposals for time arrangements.
PROPOSALS
The father seeks orders as set out in his Proposed Minute of Order (Exhibit A).
The Independent Children’s Lawyer (the “ICL”) and the mother agreed with numerous proposed orders in Exhibit A. There were some disagreements in relation to Exhibit A with the ICL and Mother’s preferred differing orders being contained in Exhibit B.
Broadly, the mother sought the orders proposed by the ICL.
MATERIAL RELIED UPON
The father relied upon:
(a)Case Outline filed 6 September 2024;
(b)Affidavit of Mr H filed 2 August 2024;
(c)Affidavit of Ms J filed 2 August 2024;
(d)His affidavit filed 2 August 2024;
(e)Amended Initiating Application filed 2 August 2024;
(f)Family Report of Dr K dated 6 March 2024 annexed to his affidavit filed 18 March 2024.
The mother relied upon:
(a)Her affidavits filed 2 December 2022, 20 January 2023, and 17 August 2023.
The ICL relied upon:
(a)Her Case Outline filed 10 September 2024;
(b)Family Report of Dr K dated 6 March 2024 annexed to his affidavit filed 18 March 2024.
The following documents became exhibits:
(a)Exhibit A: Father’s Proposed Minute of Order;
(b)Exhibit B: ICL’s Proposed Minute of Order;
(c)Exhibit C: Family Report of Dr K dated 6 March 2024 and annexed to his Affidavit filed 18 March 2024;
(d)Exhibit D: Enrolment form of Z dated 4 June 2024; NSW Application to enrol X; L School Enrolment Enquiry for Y dated 2 August 2023.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section, the family report section, or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section compared to the evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit.
The father deposes in his affidavit that since the Court’s Orders of 3 February 2023 until 12 March 2024, the children lived with the mother and spent time with him on Friday afternoon to Monday morning.
As of 12 March 2024, the eldest child, X has lived with the father. The father deposes that it was the mother who requested X live with him.
Between 7 March to 12 March 2024, the father deposes a number of incidents where X became distressed from the mother’s behaviour including her actions of engaging in punitive silence towards him and yelling.
The father deposes that he is concerned that the maternal family has also exposed the children to issues in the court proceedings. According to the father, X has expressed fear and apprehension towards spending time with the mother and her family (paragraph 16 of the father’s affidavit).
The father also has concerns for the stability of his employment. He deposes that picking up X from school involves an extensive commute that is jeopardising his current position. The father therefore seeks to have X attend the same school where he works as it can offer X a stable routine. The father deposes that working at this school affords a reduction in school fees that he is willing to pay for.
Affidavit of Mr H
Mr H is the paternal uncle of the subject children.
Paragraph 16 of his affidavit filed 2 August 2024, deposes that the father has demonstrated a stable and nurturing environment for the children.
He goes on to suggest that the father actively supports the children’s education and ensures that they are appropriately equipped to engage in their learning.
Mr H highlights that the father has since assisted X to overcome the persistent stress he was experiencing when in the mother’s care including improving his health and wellbeing (paragraph 21).
Affidavit of Ms J
Ms J is the paternal grandmother of the subject children.
In her affidavit, she states that the father is an attentive and involved parent in the children’s lives. She suggests that the father is aware of the children’s emotional needs and regularly checks in with them to provide reassurance and comfort if required.
In paragraph 33, the paternal grandmother states that X has established a consistent routine since coming into the father’s full time care. She suggests that X’s physical and emotional health have improved since living with the father.
The paternal grandmother also deposes in her affidavit that she regularly attends and assists with changeovers, although if she is unable to attend, the father can handle changeover without causing disputation with the mother.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavits.
The mother has been diagnosed with a medical condition and was previously hospitalised on two occasions during the parties’ marriage. The mother suggests that her condition is manageable although she has received medical advice that her condition may worsen during the later stages of her life.
The mother holds a post graduate studies and is currently employed as a professional. She has held this role since 2017.
The mother alleges in her affidavit filed 20 January 2023, that the father refused to return Y and X to her care on 18 December 2022. This arrangement was agreed to by the parties and communicated by their lawyers.
On 31 December 2022, Y returned to the mother’s care and X did not (paragraph 4 of the mother’s affidavit filed 20 January 2023).
From paragraph 25 of the mother’s affidavit, she raises concerns about the father’s parenting capacity, alleging that he has in the past used illicit substances and consequently experienced angry outbursts.
The mother also deposes that police have been requested to carry out welfare checks on the children when they are in her care (paragraph 34 of the mother’s affidavit filed 20 January 2023).
Family Report
The author of the Family Report dated 6 March 2024 was Dr K, clinical psychologist. He interviewed the parents and two eldest children on 13 February 2024 and made observations of all children with the parents on the same day.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Evaluation”, the Family Report writer stated:
216.In a quite general sense, all the children appeared to be developing in a sound and healthy manner and impress as sharing positive feelings towards both parents.
217.There were positive aspects identified in regard to each party’s parental competency, capacity and skill and a strong sense of genuine devotion, love and affection was expressed by both parents towards the children.
218.Both parents appear to be well supported by others (particularly extended family members) in regard to meeting their parental responsibilities for the children and in relation to having access to personal support relevant to their parental roles.
219.The children seem to be well connected within a strong network of extended family members which would typically bode well for their development and wellbeing in general.
221.It is quite evident that the parents dispute over parenting arrangements will not likely be successfully negotiated in the context of the mistrustful and acrimonious dynamics that exist between them.
…
223.Both parents certainly express their individual concern regarding the children’s exposure to the parental conflict or dispute – however the parents clearly dispute the source of such exposure – whilst denying that they themselves are indeed responsible.
224.In any case – should either parent’s claims be accurate – the children have been exposed to aspects of the parental dispute and negative parental views by nature of the parent’s discourse and behaviour with the children – either directly or indirectly.
225.Both parents consider the other to be motivated and have actively sought to undermine their respective relationship with the children by virtue of engagement in such behaviour. Should these claims be accurate it would be considered that the children are at significant risk of emotional harm individually and at risk of experiencing relational harm with one or both parents in this context.
232.Perhaps most telling and of significant concern is [X]'s assertion that he does not fully trust his parents when they are providing him with information and is therefore reticent to openly express his view and feelings to them --particularly in relation to the mother. Such mistrust cannot have developed without the child being provided reason to doubt the veracity of each parent's accounts. This suggests that the child has likely been provided information from each parent that has served to discredit the other. Suffice to say the child [X] is experiencing a strong sense of angst, confusion and suspicion towards both parents’ intentions and behaviour – which apart from invoking a significant personal emotional toll, ultimately results in damaging his ability to form a secure attachment to both parents. The child’s active attempts to avoid and escape from thoughts and feelings related to the parental conflict is evidence of the emotional turmoil that this child has been subjected to.
233.The parents ongoing denial of their personal engagement in such behaviour can only be understood in the context of their parental behaviour being under scrutiny. Should the parents continue to engage in such behaviour this would suggest that they lack insight into recognising and understanding the negative impact of their behaviour on the children, and ultimately would demonstrate an incapacity to prioritise the children's needs over their own. In such a circumstance, the children's wellbeing and needs being met in the offending parent's care would be considered at significant risk and action would be recommended to be taken in protecting the children from such risk…
234.The mother's denial that she has played any role in exposing the children to the parental conflict is incongruent with at least the eldest child's views. From his personal accounts during his interview, it is evident that [X] believes that the mother has engaged in behaviour that has served to portray the father in a negative light. [X] also holds a belief that he cannot speak openly with the mother for fear of how she will react- more specifically that the mother will resort to punitive silence towards him - which he has previously experienced.
235.Punitive silence from a parent can reflect poor communication skills, however the mother impressed as possessing quite advanced communication skills. Such parental behaviour could also be interpreted as emotional abusive - certainly if the underlying intent is to admonish or punish the child - even if this is not the intention of the parent…
236.The father's denial that he has played a role in exposing the children to the parental conflict is incongruent with at least the eldest child's views also. [X] described both parents of being guilty of speaking about the other's behaviour to them…
237.Of particular importance, some of [X]'s recalled experiences with extended maternal family members is highly concerning when evaluating such issues. If [X]'s accounts are accurate, he has been directly exposed to negative views and feelings about the father by maternal family members and behaviour which may be manipulative in nature and designed to encourage the child's loyalties to the mother. Such behaviour is considered severely harmful on an emotional level and ultimately has had an undermining influence on his security and trust in these family members.
240.The father's past alleged substance use and negative impact on his functioning is one of her "main" concerns and is disputed by the parents of course. There were no concerns whatsoever expressed by the children regarding past experiences of the father's alleged temper or aggressiveness. The father has also appeared to have provided multiple negative drug analysis results in this regard. The mother's contention that the father will reengage in substance use subsequent to litigation proceedings is considered speculative.
241.A key theme that appears to underly the mother's proposal for parenting arrangements is her sense that the father's parental capacity is flawed or underdeveloped and as such compromises the children's needs being met in his care - with particular respect to [Z]. In this context, the mother has contended that historically the father lacked involvement in duties of responsibility and care for the children, the father has proved to be incapable of meeting the emotional needs of [Z] in his overnight care and has failed to ensure that independent bedding arrangements for the children are provided. From the manner in which the father presented his views, information derived from the children accounts and formal observations between the children and father - there was no suggestion that the father's parental competency or ability to meet the children's needs was inadequate or significantly concerning.
242.More specifically, there appears to be a lack of information to support the mother's contention that the father is incapable of meeting the needs of [Z] in general or in an overnight care scenario. Whilst the parents dispute the child's presentation during time spent father's care initially following the post-separation and why overnight time was ceased - the child nevertheless has previously experienced overnight time in the father's care. The elder children spoke highly of the level of care provided to them by the father - and clearly identified the father as being their main carer during such time -not as the mother has contended, that the father heavily relied upon his family member in the shared household. In fact, no issues were identified by the children in relation to any aspect of care provided to them by the father - which they described comparably to the mother's parental capacity. [Z] of course is significantly younger than the elder children and therefore there are aspects of her developmental and emotional needs that would be considered to be unique in comparison, especially in the context that [Z] has not spent time in the father's overnight care since July 2022. Whilst [Z]'s comfortability and readiness to spend overnight time with the father are somewhat unknown factors, this should not preclude such time being arranged. [Z]'s relationship and time spent with the father has been described positively - and despite the mother's contention - the child appears to be upset when having to leave the father's care prematurely in comparison to the elder children. The mother's contention that the father overly relies upon extended family members to provide care for the children is not supported by the children's accounts. There is simply a lack of sufficient evidence available to hold significant concern regarding the father's parental capacity in the context of meeting the needs of [Z] - including overnight care. Of course, given [Z]'s developmental stage it would assist the child's adaptation and perception of security that any progression in relation to overnight care provided by the father be gradual and incremental -which the father appeared to fully acknowledge and understand.
244.In the absence of exposure to the parental conflict and dispute it is considered in the best interests of the children to share a meaningful relationship with both parents something all the children appear to value and desire. More specifically, it would be considered in the best interests of the children to share consistent, regular, and frequent time with both parents' long term.
245.Determining parenting arrangements that would serve the best interests of the children would be dependent on judicial determination regarding risk of harm to the children by exposure to the parental conflict as aforementioned…
246.The children's continued exposure to the parental conflict or negative views held by either parent (or family members) will only serve to undermine their ability to share a meaningful and healthy relationship with both parents. As such, steps should be put in place that serve to mitigate the risk of such exposure in the future.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93‑637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
These considerations will be dealt with together.
There are no current or active family violence orders affecting the parties in this matter.
The mother has made allegations of family violence and emotional abuse against the father. The father has denied these allegations and has instead expressed concerns about the mother’s behaviour being erratic and detrimental to the children’s wellbeing. It is likely during at least the latter part of the parties’ relationship, there was at least significant verbal disputation between the parties, including criticism of each other, often, unfortunately, in the presence of the children. The Court would assess that both parties are now alive to the real necessity of them avoiding any significant conflict in the presence of the children, and this issue of conflict has been significantly taken into account when determining final parenting orders.
The mother has raised allegations involving the father’s use of illicit substances, and alcohol. The father has produced multiple drug tests, which have returned negative results (see paragraphs 54-59 of his affidavit). There is no risk issue posed to the children in this context.
The parties are in agreement that the two youngest children should primarily live with the mother, and that the eldest child should primarily live with the father. They have agreed in principle to parenting arrangements that will ensure the children spend time with both each other and also with the parent with whom they are not primarily living, subject to the Court’s determination of certain discrete disputed time-with parenting arrangements.
The Court, below, after discussion of various considerations under s 60CC, will discuss its determination relating to the parties’ various disputes relating to final proposed parenting orders, and in relation to which the Court has considered the safety of the children.
(2)(b) any views expressed by the child;
The Family Report interviews were held on 13 February 2024. The Report issued on 6 March 2024. The eldest child X came into the father’s primary care on 12 March 2024.
The Family Report writer stated:
162.[X] described his general views and care experiences with each parent in similarly positive terms. For example, [X] described the father as "I love hanging out with him...he looks after us well...keeps us safe ...makes us/eel good" and in relation to the mother, "Mum cares about us a lot...pushes us to be our best ...wants the best/or us".
163.[X] described no concerns with either parent's level of care or with the specific arrangements at either parents' residences. [X] considered his paternal grandmother and uncle to be "involved with us" but stated, "dad is the boss...he does most things that mum does".
164.[X] described a variable sleeping routine at the father's shared residence and that he either sleeps with the father or uncle. [X] expressed being unfazed by this changeable sleeping arrangement and that any lack of privacy did not concern him.
165.In response to being asked how he felt about the current parenting arrangement, [X] quickly and ardently stated, "I don't think it's fair. It should be equal (time spent between the parents) - one week each with them. I love them both". [X] explained, "It's not fair that I don't see dad much ...! love him...and I can't even call him anytime I want to". [X] also added that he considered that an equal parenting arrangement would mean "so there's no more fighting about it".
166.[X] made it a point that "That's what I want...not anyone else telling me to say that". [X] further explained that"/ want dad to be able to be involved with my school stuff more ...help me with homework ...that hasn't happened in a long time".
167.[X] described feeling "sad...its unfair" about the current situation. [X] frustratingly said that he has expressed such feelings regarding his desire for parenting arrangements to both parents and that "when I tell mum she just says it's alright, you'll get used to it".
170.In this context, [X] stated that his ability to talk openly with either parent was negatively impacted. In response to being asked to identify people that he could talk openly with [X] replied, "no one". Later in the conversation, [X] did identify the paternal uncle as "the only person" that he felt he could truly confide in. [X] added, "/ can talk to dad more than mum though coz he has experienced divorce before himself'.
171.[X] was able to clearly identify a barrier to him feeling able to talk openly with the mother saying, "I worry about mum getting upset and won 't talk to me again" and related this source of anxiety to previous experiences of the mother behaving in this manner - which he described as "lots of times" that this has previously happened. Such examples included "when the thing with my (maternal) aunt [Ms D] happened and I went to the police" and "when I deleted her photos of my bruises on her phone". [X] described such events in succinct detail. In relation to his maternal aunt, [X] recalled the aunt once saying to him, "Ill punish you and hurt you badly...I got scared of these words and told dad and my (paternal) uncle ...we went to the police about it''. [X] said that "when mum found about it, she wouldn't speak to me". [X] added, "my (maternal) uncle found out and said you are daddy's little girl ...and was making fun of my (paternal) uncle too".
174.In regard to the extended period of time the children spent with the father in December 2022 school holidays - [X] recalled that he initiated discussion about requesting to spend more time with the father and that "mum did not like it when I told her".
Under Evaluation it was stated:
231.[X] was certainly forthcoming in describing his views and feelings that highlighted the personal impact of such exposure (to the parental conflict and dispute) – and being the eldest child it is unsurprising that his narrative was most informative in this regard.
232.Perhaps most telling and of significant concern is [X]'s assertion that he does not fully trust his parents when they are providing him with information and it is therefore reticent to openly express his view and feelings to them – particularly in relation to the mother.
As to Y, he spoke positively about both parents. The Family Report writer stated:
188.[Y]'s description of how he perceived the current parenting arrangements was "it's a little bit good ...that we get to see dad...but there's not much time with him...I'd like to spend more time with dad''. [Y] perceived that a potential barrier to this being achieved was "coz mum won't agree to it I think ...that's what they (parents) both argue a lot about I think ...but also (argued) when they were together". [Y] described feeling "annoyed'' about the current parenting arrangement given how he feels and "angry" that "I'm not being listened to".
189.In this context, [Y] said that the father did not talk negatively about the mother to him however he has "overheard'' the mother and maternal family members talking "bad'' about the father at times.
Z was too young to express a relevant view. At paragraph 199, the two eldest children stated:
199.During their interviews, both [X] and [Y] described [Z] as enjoying spending time with the father and that when [Z]'s time ends prematurely compared to their time - that they both have observed [Z] to become visibly upset.
The Court attaches significant weight to the eldest child’s views and some weight to the middle child’s views.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer.
Y has a medical condition requiring him to use aids.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
As discussed above, both parents during the parties’ relationship expose the children to their conflict which was not child focused. They are likely aware now, going forward, of the need to avoid the children being exposed to such conflict.
The mother’s punitive silent treatment towards the eldest child in the past was not child focused and exposed the child to emotional harm. The mother, going forward, will now be aware of the need to avoid doing this again. She will also be aware of the need to take all necessary steps to ensure that members of the maternal family do not criticise the eldest child.
Subject to the above matters, each of the parties has such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children have a meaningful relationship with each parent, albeit that the eldest child’s relationship with the mother in recent times has become somewhat strained. The mother will now be aware of her need to relate to the eldest child in a child focused and positive manner.
The children will benefit from the continuation and further development of their meaningful relationships with each parent.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The Court will now discuss, briefly, its determinations relating to the parties various outstanding parenting disputes, which take into account the above discussed considerations under s 60CC of the Act.
As to parental responsibility, the parties’ co-parenting relationship is far from optimal. There is significant suspicion and mistrust between the parties relating to the children. The parties almost exclusively communicate through text messaging. The mother described to the Family Report writer the father’s communications with her as overbearing and quibbling and that every message from him was evidence collecting. She also stated that she stopped responding to half of the father’s texts because of the way it made her feel stressed. The parties rarely speak to each other on the telephone or face-to-face. The Court was required to make an interim parenting determination relating to a schooling decision on 24 August 2023. The Court has no confidence that the parties could reach agreement in relation to a major long-term decision for the children in a timely fashion and without conflict. It will be in the children’s best interests that the Court makes the ICL’s proposed parental responsibility orders (see proposed orders 1 – 4 in Exhibit B) as opposed to the father’s proposed parental responsibility orders (see proposed Orders 1 – 3 in Exhibit A). The ICL’s proposed parental responsibility orders will require each parent to advise the other parent of their proposed major long-term decision and give consideration to any response before making a decision, noting that the eldest child will primarily live with the father and the two youngest children will primarily live with the mother. It is important that there be no conflict between the parties to which the children might potentially be exposed to if they are required to reach a decision as to a major long-term issue for a child; in the view of the Court the father’s proposed parental responsibility orders carry the real risk of disputation between the parties to which the children may be exposed, as opposed to the ICL’s proposed parental responsibility orders.
As to the father’s proposed order 42, relating to telephone communication between the children and the parties (each Tuesday and Thursday at 7.00 pm for no more than 30 minutes), this proposed order was a replica of an interim order made by the Court on 3 February 2023. The ICL and mother proposed reduced telephone time orders in their proposed orders 39 and 40. The ICL and mother’s proposed orders in this context will be in the best interests of the children; such orders will assist in maintaining the children’s relationship with the other parent. The Court is concerned that the father’s proposed order 42 will be disruptive to the children, noting that he is seeking telephone time each Tuesday and Thursday for up to 30 minutes, and may well lead to conflict between the parties in the children’s presence particularly if the children express any reluctance (for example, by reason of tiredness) to speak to the other parent on the telephone.
As to the father’s proposed order 10 in Exhibit A, in which he seeks an order that the two youngest children spend time with him each alternate Thursday (week 2) from 5.00 pm to 7.30 pm, the father submitted that the mother previously proposed to the Family Report writer (interviews on 13 February 2024) that all three children spend time with the father each alternate Tuesday evening, “to have dinner” (see paragraph 41 of the Family Report). The mother submitted that she was content with this proposed order provided such time concluded at 7.00 pm, that the father collected the youngest child from her day care and collect the middle child from her residence, and provided the father returned the two youngest children to her residence at the conclusion of time. In the view of the Court, it will be in the best interests of the two youngest children that the father’s proposed order 10 is made but subject to the mother’s provisos as discussed above.
As to the father’s proposed order 16 (“In the event [X] expresses a desire to leave while spending time with the mother, he is at liberty to contact the Father by phone and the mother will facilitate such communication”), the father submitted that this child had left the mother’s residence to live with the father in not the best of circumstances. On the other hand, the ICL and mother submitted that this proposed order was potentially fraught with difficulty because it potentially encouraged X to not spend time with the mother and it could also encourage the other children to oppose spending time with the father. In the view of the Court, there is force to these submissions of the ICL and the mother, with the Court further observing that the parties have agreed to the father’s proposed order 41 providing, inter alia, that each parent is to facilitate telephone communication between the children and the non-caring parent with whom the child/ren are not currently spending time with, at reasonable times, and at their requests.
As to the father’s proposed orders 18 and 19, relating to school holiday time, the father proposed an amendment to each of those proposed orders such that the child X’s school holiday time should not commence until March 2025. On behalf of the father, it was submitted that his proposed orders 18 and 19, with the above proposed amendments, were orders in the best interests of the children including X particularly taking into account the strained relationship between this latter child and the mother; there is force to this submission with the Court taking into account the evidence of the father relating to the difficulties that X has experienced with the mother in 2024. It is important that X’s relationship with the mother is restored, however it is important that this restoration not be rushed and also taking into account the parties’ agreement that family therapy should occur with the parties and this child.
As to the father’s proposed order 30 relating to family therapy, the essential dispute in relation to this proposed order related to whether or not the parties should equally pay for such family therapy. The father contended that he had been paying for X’s counselling and he was only earning a modest income, and the mother should pay for the family therapy. The ICL and mother contended that the family therapy should be paid equally by the parties, and in this context, it was submitted that because X had now seen a counsellor for 4 consultations, which counselling had been positive for this child, it may well transpire that the proposed family therapy will be sufficient treatment for the family including X; there is force to these submissions and it will be in the best interests of the children to make such family therapy orders accordingly.
As to the father’s proposed order 41 relating to each parent facilitating telephone or FaceTime communication between the children and the non-caring parent, the ICL and mother submitted that because the mother is usually not wearing her head scarf at her residence, then this proposed order as far as FaceTime communication was concerned was not in the best interests of the children taking into account potential emotional discomfort experienced by the mother if FaceTime communication was permitted. There is force to this submission and proposed FaceTime communication will not be ordered.
It will not be in the best interests of the children to make the father’s proposed orders 52 and 53; this proposed family dispute resolution may potentially overwhelm this family particularly taking into account other orders being made such as family therapy, and in any event the Court observes that sole decision-making responsibility orders are being made.
As to the father’s proposed order 55 relating to the parties doing all acts and things to enrol the eldest child in F School at Suburb G to enable him to commence school in October 2024, being the start of term 4, the father submitted that he may potentially lose his job if he is required to continue to keep picking up the eldest child from his present school being L School. The mother submitted that it was in this child’s best interests to continue at his current school until the end of the school year, 2024 and graduate with his peers there. She also submitted that the father could potentially enrol this child in after-school care at his current school to avoid his contended employment issue. On the other hand, the father submitted that his income was modest and after-school care fees would add to his financial burden. Taking into account the significant evidence of the father that he may potentially lose his job, as referred to above, with adverse financial ramifications for him in the family, as well as his modest financial circumstances, it will be in the best interests of the children to make the father’s proposed order 55, but amending 14 days to 7 days in the proposed order to ensure, as best as possible, that the eldest child can commence school in October 2024.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting Orders:
1.The Mother shall have sole decision-making responsibility about major long-term issues for the children, Y born in 2015 and Z born in 2021.
2.The Father shall have sole decision-making responsibility about major long-term issues for the child, X born in 2012.
3.For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision in relation to Z and Y, the mother will notify the father as follows:
(a)Advise the father in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the mother;
(b)Provide the father with all relevant information which is in the possession of mother relating to the long-term issue;
(c)Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the father before making a decision; and
(e)Inform the father of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
4.For the purpose of Order 2 and except in the event of an emergency, before making any major long-term decision in relation to X, the father will notify the mother as follows:
(a)Advise the mother in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues proposed to be made by the father;
(b)Provide the mother with all relevant information which is in the possession of father relating to the long-term issue;
(c)Provide any necessary authorities to enable the mother to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the mother before making a decision;
(e)Inform the mother of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
Live with
5.The children Z and Y shall live with the mother.
6.The child X shall live with the father.
Time with
7.Y shall spend time with Father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non‑school day.
8.From the date of these Orders and for the next six (6) months, Z will spend time with the Father from 9.00 am on Saturday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
9.Following the completion of Order 8 and for the next six (6) months, Z will spend time with the Father from 3.00 pm on Friday to 6.00 pm on Sunday each alternate weekend with the time to coincide with Y’s time with the Father.
10.Following the completion of Order 9 and thereafter, Z will spend time with the Father from 3.00 pm on Friday to the commencement of school on Monday (or Tuesday if Monday is a non-school day) each alternate weekend with such time to coincide with Y’s time with the Father.
11.Y and Z will spend time with the Father each alternate Thursday (week 2) from 5:00 pm to 7:00 pm. In relation to this time, the Father shall collect Z from her daycare and collect Y from the mother’s residence, and he shall return these children to the mother’s residence at the conclusion of his time pursuant to this Order.
12.From 19 October 2024 and for the next six (6) weeks, X will spend time with the Mother from 9.00 am to 6:00pm on each alternate Saturday.
13.Following the completion of Order 12 and for the next six (6) weeks, X will spend time with the Mother from 9:00am Saturday until 6:00pm on Sunday each alternate weekend.
14.Following the completion of Order 13 and for the next six (6) weeks, X will spend time with the Mother from the conclusion of school on Friday to 6.00 pm on Sunday.
15.Following the completion of Order 14 and thereafter, X will spend time with the Mother from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a non-school day.
16.For the purpose of Orders 12 to 15, X’s time is to occur with the time Z and Y are with the Mother.
17.At any other time as agreed between the parties in writing.
Time Spent School Holidays
18.Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the short school holidays as follows:
(a)With the mother for the first half of each of the short school holidays at the conclusion of terms 1, 2, and 3 in odd numbered years and the second half of each of the short school holidays in even numbered years; and
(b)With the father for the first half of each of the short school holidays at the conclusion of term is 1, 2, and 3 in even-numbered years, and the second half of each of the short school holidays in odd-numbered years.
(c)That the above school holiday time for X is not to commence until March 2025.
19.Notwithstanding Orders in relation to school term time, X and Y spend time with each of their parents equally during the long school holidays following term 4 as follows:
(a)With the mother:
(i)in odd-numbered years, for the first half of each long school holiday; and
(ii)in even-numbered years, for the second half of each long school holiday.
(b)With the father:
(i)in even-numbered years, for the first half of each long school holiday; and
(ii)in odd-numbered years, for the second half of each long school holiday.
(c)The above school holiday time for X is not to commence until March 2025.
20.Notwithstanding Orders in relation to school term time, Z spend time with the Father in the school holidays pursuant to Orders 8 – 10 with such time to be extended to Monday to 6.00 pm from the date of the Orders and for a period of 6 months.
21.From the conclusion of Order 20 until Z commences primary school, such time will be extended to 9.00 am on Tuesday when the Father is to drop off Z at the childcare centre she is enrolled in.
22.From when Z commences primary school, Z spend time with the Father in accordance with Orders 18 and 19.
Holiday Midpoint
23.The mid-point of school holidays will be determined as follows:
(a)The half-way point of each school holidays will be calculated by dividing the number of nights in each school holidays by two;
(b)The first half will commence at the conclusion of school on the children’s last day of school of each school holidays and conclude at 12.00 pm on the date that is the half-way point of each school holidays;
(c)The last half will commence at 12.00 pm on the date that is the half-way point of each school holidays and conclude on the morning the children return to school following the school holidays; and
(d)In the event there is an uneven number of nights during any of the school holidays, the children will spend one extra night with the Mother in odd‑numbered years and with the Father in even-numbered years.
Special Occasions
24.The children will spend time with the Father and the Mother’s time will be suspended between 10.00 am and 5.00 pm on Father’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
25.The Father’s time with the children is suspended and the children spend time with the Mother between 10.00 am and 5.00 pm on Mother’s Day each year and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
26.Notwithstanding any Order in relation to school term time or school holidays, the children will spend time with each of their parents during religious holidays (collectively referred to as “Religious Holidays”) as announced by the Country B Association as follows:
(a)In odd-numbered years:
(i)With the Mother from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii)With the Father for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
(b)In even-numbered years:
(i)With the Father from the conclusion of school (or 3.00 pm on a non‑school day) the day before the religious holidays until the commencement of school (or 9.00 am on a non-school day) the day after the first day of the religious holidays (“second day”); and
(ii)With the Mother for the second day of each of the religious holidays, from the commencement of school (or 9.00 am on a non-school day) until the conclusion of school (or 3.00 pm on a non-school day) the following day.
27.For the child/ren’s birthday each year:
(a)If a school day from after school / 3.00 pm until 6.00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday;
(b)If a non-school day from 9:00 am until 12:00 pm all of the children will spend time with the parent they are not ordinarily spending time with on the child’s birthday.
28.For the parent’s birthday each year:
(a)If a school day from after school / 3.00 pm until 6.00 pm if the children are not ordinarily spending time with the parent on the parents' birthday;
(b)If a non-school day from 9.00 am until 12.00 pm if the children are not ordinarily spending time with the parent on the parents’ birthday.
Changeovers
29.Subject to Order 11, unless otherwise agreed in writing, changeover that does not occur at school or day-care, is to take place at McDonalds at Suburb C.
Family Therapy
30.The parties shall engage forthwith in non-reportable family therapy with an agreed family therapist and any joint sessions are to occur in accordance with the written recommendations of the family therapist.
(a)For the purposes of facilitating Order 30:
(i)The Father is to nominate three family therapists and provide these to the Mother via email to her nominated email address, and the mother shall respond within seven (7) days confirming which therapist she has selected;
(ii)In the event that the Therapist provides a subsidised fee, then within fourteen (14) days of the father nominating a family therapist in accordance with Order 30(a)(i)., the parties are to attend their general practitioner and obtain a referral under a mental health care plan to engage in therapy prior to their respective intake sessions;
(iii)Within fourteen (14) days thereafter, the parties are to make their initial intake appointment to allow the therapist to assess the suitability of ongoing therapy;
(iv)The father is to facilitate X attending the initial intake appointment as arranged with the therapist;
(v)The parties are to follow all written recommendations as given by the therapist;
(vi)The father is to ensure X’s attendance at all appointments in accordance with the recommendations of the therapist;
(vii)The parties are equally liable for any and all fees associated with attending family therapy as charged by the therapist.
Communication between parents
31.In the event of an emergency or an issue arising which requires the immediate attention of the other parent, the parents will communicate by telephone call and/or text message as soon as practicable and within 2 hours.
32.For the purposes of non-urgent communications, the parents will communicate by text messages and/or email.
33.Within 48 hours of the making of these Orders, the parents shall keep the other informed and notify as soon as practicable about all the children’s upcoming and future medical, birthday party commitments, school and non-school extracurricular activities, and appointments.
34.Within 48 hours of the making of these Orders, both parents will keep each other informed with their email address, current residential address and contact telephone number where they can be reached at all times in relation to the children and matters affecting their welfare.
35.Both parents will notify the other parent of any change to those details as soon as practicable after such change, and in any event no later than after 48 hours of the change.
36.The parents advise each other by telephone or text message as soon as practicable upon becoming aware of any of the following in relation to the children:
(a)Any illness or injury requiring a medical examination or medical consultation;
(b)Any illness requiring the provision to the children of any medicine prescribed by a medical practitioner;
(c)Any hospital attendance for examination, consultation or treatment;
(d)Any proposed dental treatment;
(e)Any proposed appointment with any other health professional, including all details as to the health or educational professional and the time of the attendance or appointment;
(f)Any issue of concern raised with either parent by the children’s school relating to their education, welfare or behaviour;
(g)Any issue relevant to the children’s spiritual or religious upbringing.
37.If the children need medical care while with one parent, that parent will promptly notify the other parent, and include the following details:
(a)The name and contact details of the medical professional administering the treatment;
(b)The medical condition for which the children, or any of them, were taken to the medical professional;
(c)Any treatment and/or medication prescribed for or provided to the children, or any of them, and the reasons for same;
(d)The prognosis of the children’s condition such as it is known;
(e)The prescribing or provision of such medication and/or treatment; and
(f)If the children, or any of them, is admitted to hospital: the name and contact details of that hospital.
38.Each parent is entitled to receive all information:
(a)From any medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, or hospital which treats the children, or any of them, including records and notes; and
(b)From any school at which the children attends, or any of them, including copies of the children's school reports, school photos, and any other document ordinarily provided to parents, and this order serves as authority for that medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or that school to provide that information to either parent requesting such information.
39.In the event that the medical practitioner, allied health care practitioner, hospital or the school forms the view that this Order is insufficient authority to provide the information then each parent will do all things and sign any authority required by the medical practitioner, allied health care practitioner with the exception of non-reportable counselling for the children, hospital, or the school to provide the information.
40.Each parent is entitled to attend all school events and extracurricular activities at which parents would normally be present, including sports days, nights, functions, meetings or parent-teacher interviews, noting that each parent may request separate interviews from the school should the school facilitate same.
Communication between children and parent
41.Each parent is to facilitate telephone communication between the children and the non-caring parent with whom the child/ren are not currently spending time with, at reasonable times at their requests.
42.The mother will facilitate Y and Z to have telephone communication with the father each Tuesday at 6.00 pm for a period of no more than 30 minutes, with the father initiating the communication.
43.The father will facilitate X to have telephone communication with the mother each Wednesday at 7.00 pm for a period of no more than 30 minutes, with the mother initiating the communication.
44.Nothing in these orders prevents the caring parent from enabling the children to communicate with the non-caring parent at all reasonable times.
45.The parents will respect the children's privacy during these communications.
Non-Denigration and Restraints
46.Without admissions, each parent be restrained by injunction from:
(a)Using physical discipline on the children, or otherwise striking, hitting or punching the child or permitting any other person to do so;
(b)Discussing these proceedings, or showing any document related to these proceedings, to the child/children;
(c)Denigrating the other party, or members of the other party’s family to the child/children or in the hearing or presence of the child/children or permitting any other person to do so;
(d)Relocating the children/child who are living with them a distance of more than 40km from the other parent’s residence;
(e)Changing the names of the children/child unless agreed in writing;
47.For a period of 6 months from the making of these Orders, without admissions, the mother is restrained by injunction from leaving X in the sole care of the Maternal Aunt (Ms D) and Uncle (Mr E).
Passport
48.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the children, Y born in 2015 and Z born in 2021 are permitted to have an Australian passport and the mother is permitted to apply for, or renew, the children’s Australian passport and the father’s consent to the children having an Australian passport is dispensed with.
49.The mother is to hold Y and Z`s Australian passports.
50.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child, X born in 2012 is permitted to have an Australian passport and the father is permitted to apply for, or renew, the children’s Australian passport and the mother’s consent to the children having an Australian passport is dispensed with.
51.The father is to hold X’s Australian passport.
52.If either parent plans a holiday with any or all of the three (3) children outside of the Commonwealth of Australia, the travelling parent will seek signed written consent from the non-travelling parent and such consent shall not be unreasonably withheld provided the following are complied with:
(a)Give the other parent 60 days’ notice in writing of the intended travel arrangements;
(b)Give the other parents at least 21 days prior to any international travel; the parent travelling with the children must:
(i)Provide a copy of return flight tickets and an itinerary of the travel, including:
A.The time and date of departure from and return to Australia;
B.The name of any flight carrier, flight times, and other transport details;
C.Details of accommodation, including address and contact details (telephone number and/or email address);
D.Details on how to contact the children during the holiday.
(c)At least 72 hours prior to overseas travel, subscribe to Smart Traveler or a similar authority of the Australian Government to receive updates on the travel destinations and provide confirmation and details to the other parent.
(d)Ensure the children are covered by a valid travel insurance policy for the duration of the travel, including SARS-CoV-2/COVID-19 cover, and provide a copy of such policy to the other parent not less than 14 days prior to the intended travel.
(e)The travelling parent is restrained from seeking to travel with the children to any country not listed in the itinerary.
53.Unless agreed otherwise, any international travel and domestic travel is to occur during the respective parent’s time with the children.
Ancillary
54.Any individual counselling the children attend is not to be reportable.
55.Within seven (7) days from the date of these Orders, the parents do all acts and things to enrol X in F School in Suburb G to enable him to commence school in October 2024.
56.Both parents are required to include the other parent's details, including their full name, contact number, and status as an emergency contact, in all enrolment forms, medical records, school records, and any other relevant documents or registrations pertaining to the child/children.
57.Each parent must notify the other in writing within seven (7) days of any such enrolment or update, providing a copy of the completed form or registration that includes the other parent’s details.
58.Both parents shall list the other parent as an emergency contact on all forms and documents where emergency contacts are required, ensuring that both parents are promptly notified in the event of an emergency.
59.Each parent must provide written confirmation to the other within fourteen (14) days of the making of these Orders that they have complied with the inclusion of the other parent's details as specified herein.
60.Any changes to the children’s enrolment details or emergency contact information must be communicated to the other parent in writing within seven (7) days of such changes.
61.Both parties shall ensure that the children are provided with correct school uniform at all times.
AND THE COURT NOTES THAT:
A.The father shall bear the full costs of X’s education at F School.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 September 2024
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