Hagans & Hagans - [2023] FedCFamC2F 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hagans & Hagans [2023] FedCFamC2F 410

File number(s): SYC 3076 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 14 April 2023

Catchwords: FAMILY LAW – parenting – application for final orders – where Father seeks graduated regime at two yearly intervals culminating in week about time when the child reaches Year 7 – where the Mother seeks to retain the current regime of five nights a fortnight with the Father – where the Court finds it is in the child’s best interests to spend a graduated regime of substantial and significant time with the Father culminating in equal time from the child commencing Year 7

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 65DAB, 65Y.

Cases cited: Grella & Jamieson [2017] FamCAFC 21

Division: Division 2 Family Law

Number of paragraphs: 165

Date of hearing: 5, 6 and 27 May 2022

Place: Sydney

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Pearson Emerson Family Lawyers

Counsel for the Respondent: Mr Williams KC

Solicitor for the Respondent: Newnhams Solicitors
ORDERS

SYC 3076 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HAGANS

Applicant

AND:
MS HAGANS

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

14 April 2023

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility in respect of making decisions about issues concerning the long term care, welfare and development of the child X born in 2015 (“X”).
2.The mother have sole responsibility for making decisions for the day to day care, welfare and development of X when X lives with her and the father have sole responsibility for making such decisions when X spends time with and lives with him.
3.Until X commences Year 7, X live with the mother.
4.Until X commences Year 4, X spend time with the father as agreed between the parties in writing, and failing agreement:
(a)During school term:
(i)Each Wednesday from the end of school until the start of school on Thursday;
(ii)Each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday, commencing on a date to be confirmed but which coincides with Week 2 of the two weekly cycle for E and F as referred to in paragraph 4b of the Affidavit of Mr D filed 27 January 2022 and resuming at the commencement of each school term as if the school holiday period had not taken place so that if X was spending time with the father during the last weekend of the school term, the alternate weekends with the father will recommence on the second weekend of the following school term and if X was spending time with the father during the second last weekend of the school term, the alternate weekends with the father will recommence on the first weekend of the following school term;

(b)During the school holidays:
(i)At the end of Terms 1, 2 and 3, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday; and
(ii)At the end of Term 4, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday, and each alternate week thereafter during the said school holidays subject to the special provisions over the Christmas period in Orders 8(e) and 8(f).

5.From when X commences Year 4, X spend time with the father as agreed between the parties in writing, and failing agreement:
(a)During school term, in a two weekly cycle as follows:
(i)In Week 1, and each alternate week thereafter, from the end of school on Wednesday until the start of school on Friday; with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;
(ii)In Week 2, and each alternate week thereafter, from the end of school on Thursday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday; with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;

(b)During the school holidays:
(i)At the end of Terms 1, 2 and 3, with the father for the second half of each school holiday period; and
(ii)At the end of Term 4, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday, and each alternate week thereafter during the said school holidays subject to the special provisions over the Christmas period in Orders 8(e) to 8(f).

6.From when X commences Year 7, X live with each of the parties as agreed between them in writing, and failing agreement:
(a)During school term:
(i)X live with her parents on a week-about basis with changeover occurring at the start of school on Monday (or 9:00am if not a school day);

with this arrangement to resume at the commencement of each school term as if the school holiday period had not taken place so that the parent with whom X was living during the last week of school term has X living with him or her for the second week of the following term and each alternate week thereafter;
(b)During the school holidays:
(i)At the end of Terms 1, 2 and 3, with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period;
(ii)At the end of Term 4:
A.With the mother for the first half of each school holiday period, in odd numbered years and the second half of each school holiday period, in even numbered years; and
B.With the father for the first half of each school holiday period, in even numbered years and the second half of each school holiday period, in odd numbered years.

7.For the purposes of these Orders:
(a)The school holiday period is to commence at the conclusion of school on the last day of the school term; and
(b)The school holiday period is to conclude at the commencement of school on the first day of the next school term.

8.Notwithstanding any other order, and unless otherwise agreed between the parties in writing:
(a)If Easter falls outside the school holiday period, X live with the father from 4.00pm on Easter Thursday until 5.00pm on Easter Monday in odd numbered years;
(b)If Easter falls outside the school holiday period, X live with the mother from 4.00pm on Easter Thursday until 5.00pm on Easter Monday in even numbered years;
(c)X live with the father on the Father's Day weekend from 5.00pm on the Saturday until 5.00pm on Father's Day each year;
(d)X live with the mother on the Mother's Day weekend from 5.00pm on the Saturday until 5.00pm on Mother's Day each year;
(e)X live with the father from 11.00am on 24 December until 11.00am on 25 December in even numbered years and from 11.00am on 25 December until 5.00pm on 27 December in odd numbered years;
(f)X live with the mother from 11.00am on 24 December until 11.00am on 25 December in odd numbered years and from 11.00am on 25 December until 5.00pm on 27 December in even numbered years;
(g)X spend time with the parent with whom she is not otherwise spending time or living with on her birthday each year from after school until 6.15pm if it is a school day and from 8.00am to 1.30pm if her birthday falls on a weekend or day on which X is not attending school;
(h)X spend time with her mother on her mother's birthday each year in the event that X is not otherwise spending time or living with her on that day, from after school until 6.15pm if occurring on a school day and from 9.00am to 1.30pm if occurring on a non-school day;
(i)X spend time with her father on his birthday each year in the event that X is not otherwise spending time or living with him on that day, from after school until 6.15pm if occurring on a school day and from 9.00am to 1.30pm if occurring on a non-school day.

9.The parent with whom X is living will do all things necessary to facilitate reasonable telephone, Skype or FaceTime contact between X and the other parent, at times agreed between the parents, and failing agreement, as follows:
(a)Between 10.00am and 11.00am on Saturday; and
(b)At any reasonable time X wishes to communicate with the other parent with whom she is not living or spending time;

and for the purposes of this order, the parent with whom X is living will use his or her best endeavours whenever possible to provide X with privacy to communicate without distractions or interruptions.
10.Each parent will provide the requisite written or verbal consents, authorities, agreements and information including passwords necessary to access school software applications and platforms to facilitate both parents receiving and having access to:
(a)School premises and staff; and
(b)School reports, photographs, event notices including excursions, and attendance requests and notices.

11.Each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household, in the presence or hearing of X.
12.Each of the parents is restrained from allowing X to remain in the presence of or within her hearing of any other person who is making comments derogatory of the other parent, any member of the other parent's family or any member of the other parent's household.
13.Unless otherwise agreed between the parties in writing:
(a)The father or his nominee will collect X from school at the commencement of each period during which X is spending time or living with her father, and on occasions when X will not be at school at the commencement of her time with the father, then the father will collect X from the mother's place of residence; and
(b)The mother or her nominee will collect X from school at the commencement of each period during which X is spending time or living with her mother, and on occasions when X will not be at school at the commencement of her time with the mother, then the mother will collect X from the father's place of residence.

14.Each party shall inform the other as soon as practicable, and in any event within four hours of any serious illness or injury, not including common colds and like illnesses, suffered by X whilst in the care of that parent and of any hospital treatment required by X.
15.Neither parent may permit X to consult with any counsellor, therapist, psychologist or psychiatrist, without first obtaining the consent of the other parent in writing, with such consent not to be unreasonably withheld.
16.Each parent shall notify the other parent of the name of any medical practitioner, health professional or alternative health professional who treats X when she is in the care of that parent, and provide such person with an authority to provide to the other parent such documents and information as that other parent may require in relation to X.
17.Each parent must notify the other by email not more than 24 hours after any change to their residential address, landline telephone number (if any), mobile telephone number and email address.
18.Each of the parents is restrained from discussing the arrangements for X or any alteration to these arrangements at the point of collection or return of X at the commencement or conclusion of her time with either parent.
19.Each of the parents is permitted to travel with X outside the Commonwealth of Australia, provided:
(a)The final destination of the proposed travel is to a Hague Convention Country, and unless otherwise agreed between the parties in writing, excluding any transit country where the parties shall not be permitted to leave the airport precincts;
(b)The party who is proposing to travel ("the travelling party") shall provide the other party with a copy of the proposed itinerary, including times and dates of the proposed flights, details of the proposed destination and the contact details of where X will be staying during the proposed travel not less than 28 days prior to her departure;
(c)The proposed period of travel shall occur during the time that X is spending time with that parent unless otherwise agreed between the parties in writing;
(d)The travelling party shall ensure that X has available to her during the proposed travel period such an electronic device to enable the other party to communicate with X via FaceTime/Skype and by phone not less than every third day; and
(e)The travelling party who proposes the travel out of the Commonwealth of Australia with X shall ensure that 28 days prior to X’s departure from the Commonwealth of Australia she has received all appropriate vaccinations/inoculations and will provide the other parent with evidence of same at that time.

20.The party not travelling with X overseas shall inform the travelling parent whether she/he consents to the overseas travel within 7 days of receiving the particulars referred to in Order 19 and such consent shall not be unreasonably withheld. Upon receipt of such consent the travelling party shall provide confirmation of the particulars referred to in Order 19 together with a copy of X's return travel tickets to the other party not less than 28 days prior to her departure.
21.The mother shall provide the father with X's passport not later than 14 days prior to the intended date of departure of the proposed travel with the father, and the father shall return X's passport to the mother within 72 hours of his return to Australia with X.
22.Each of the parties shall do all acts and things and sign all documents necessary to ensure that X has a valid Australian and British passport and shall take all steps necessary to sign any application for an Australian and British passport and passport renewal/s for X within 7 days of being presented with such an application in a proper and completed form by the other party and the parties shall be equally liable for the costs.
23.Until X is 15 years of age the parties shall accompany X on all domestic and international flights for the purpose of travel with X while she is in their respective care unless otherwise agreed between the parties in writing.
24.Each of the mother and father shall sign all documents necessary to enrol X at S School, T School and U School from the commencement of Year 7.
25.That for the school holidays at the end of Term 1 2023, the child will have the first half of the holidays up to 9:00AM on Sunday 16 April 2023 with her Father and the balance of the school holidays until the recommencement of school with her Mother, notwithstanding anything else contained in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hagans & Hagans has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:

The applicant father, Mr Hagans (“the father”), and the respondent mother, Ms Hagans (“the mother”) are the parents of X born in 2015. Both parents love X very much, and X loves each of her parents very much.
These Reasons relate to a final hearing on 5, 6 and 27 May 2022 to determine what time X should spend with her father – whether it should remain as it has been under the interim orders of five nights per fortnight during school terms and half of the school holidays, or increase by three steps, two years apart respectively, to a fully shared care arrangement on alternate week basis during school term and half the school holidays.
The mother asserts that there is a possible risk to X in her father’s care in consequence of what the mother asserts are the unknown state of the father’s mental health issues, substance abuse and personality disorder expressed through anger and coercive and controlling behaviour. The father denies that there is any such risk. The mother’s evidence does not establish any of those possible risks in the orders that she seeks from the Court, if sought on a child focused basis, and there is no doubt that the mother is certainly child focused. The mother’s orders sought are not compatible with any such risks.
X is the mother’s only natural child, and she now has two stepchildren due to her marriage to her husband, Mr D. The father has had another child, V, with his wife, Ms B.
There is a significant degree of cooperation, though it seems a minimal degree of trust, between the parents.
THE PROCEEDINGS.
The proceedings were commenced by the father filing an Initiating Application on 16 May 2018 seeking parenting orders, to which the mother responded on 5 July 2018. The matter was listed for an interim hearing on 16 August 2018, but prior to that time the parties reached a consent position and interim consent orders were made in Chambers on 15 August 2018 providing in brief summary form that:
(a)The parents have equal shared parental responsibility for X;
(b)X live with her mother;
(c)X spend time with her father until 3 February 2019 each Monday from 3:30PM until 6:15PM, each Wednesday from 3:30PM until Thursday at 8:00AM and each Saturday from 9:30AM until 4:30PM;
(d)X spend time with her father from 4 February 2019 until 13 October 2019 each alternate Monday from 3:30PM until 6:15 PM, each Wednesday from 3:30 PM until Thursday at 8:00AM, and each alternate weekend from 9:30AM on Saturday until 4:30PM on Sunday;
(e)The father collect X from either childcare or the mother’s residence at the start of his time and the mother collect X from either childcare or the father’s residence at the end of his time;
(f)Extensive and detailed timetabling of the sharing of X’s care between the parents during the 2018 – 2019 Christmas and New Year period, Easter, birthdays, Father’s Day and Mother’s Day and the Monday of long weekends;
(g)Each parent do all things necessary to ensure X has reasonable telephone and face time contact with the parent with whom she is not living at the time, at times as agreed and wherever possible between 5:30PM and 6:30PM;
and thereafter ancillary orders relating to X’s regular care.
On 27 September 2019 further interim orders were made by consent relating to X’s care being shared between her parents through the Christmas, New Year and January between 2019 and 2020, with further interim hearing to take place on 18 February 2020.
An interim hearing did occur on 18 February 2020 and continued on 9 April 2020 and interim orders were made and judgment published on 3 June 2020 providing that
(a)The parents have equal shared parental responsibility for X;
(b)X live with her mother;
(c)X spend time with her father until 30 September 2020 each Wednesday from 3:30PM until Thursday at 8:00PM (altered by a consent order of the parties on 13 July 2022 to 8:00AM) and each alternate weekend from 5:00PM on Friday until 4:30PM on Sunday;
(d)X spend time with her father from 1 October 2020 until she commenced school in 2021 each Wednesday from 3:30PM until Thursday at 8:00AM and each alternate weekend from 5:00PM on Friday until 8:00AM on Monday or 3:30PM if the Monday was a public holiday including bank holidays;
(e)Once X commenced school in 2021 she spent time with her father during school term each Wednesday from the end of school until Thursday at the start of school and each alternate weekend from the end of school on Friday until start of school on Monday or 3:30PM on Monday if it was a public holiday including the bank holiday, for the first week of the school holidays at the end of Terms 1, 2 and 3 from 9:00AM on the first Sunday the school holidays until 9:00AM on the second Sunday of the school holidays and during the school holidays at the end of Term 4 from 9:00AM on the first Sunday the school holidays until 9:00AM on the following Sunday and each alternate week thereafter;
(f)For the sharing of X’s care between her parents at Easter, Father’s Day and Mother’s Day, the Christmas period, X’s birthday and the parents birthdays; and
(g)Each parent do everything necessary to ensure X has reasonable telephone and face time contact with the other parent with whom X is not living or spending time, at times agreed between the parents and whenever possible between 5:30PM and 6:30PM on Saturday..

On 20 May 2021 orders were made cancelling a previous order for a Family Report pursuant to section 62G of the Family Law Act 1975 (“the Act”) and orders were made by consent for an expert’s report to be prepared by Dr W for the assistance of the Court on a final hearing. That report was produced by Dr W dated 16 November 2021 and released the parties by order on 19 November 2021.
On 13 September 2021 trial directions were made and the matter was thereafter set down for final hearing on 16, 17 and 18 March 2022. These dates were vacated on 16 March 2022 and the matter was set down for final hearing on 5, 6 and 27 May 2022.
At the final hearing the father was represented by Ms Cantrall of Counsel and the mother was represented by Mr Williams of Kings Council.
The Material Relied Upon by the Parties.
The materials relied upon by the father at hearing were:
(a)Case Outline document prepared by Counsel including a Minute of Orders sought by the father filed 4 May 2022;
(b)Further Amended Initiating Application filed 27 January 22;
(c)The father’s affidavit adopted by electronic signature in accordance with the then current practice direction on 27 January 2022 and filed that day; and
(d)An affidavit of Ms B adopted by electronic signature in accordance with the then current practice direction 27 January 2022 filed that day.
Both the father and Ms B confirmed the contents of their unsworn affidavit during the oral evidence in chief at the hearing.
The father also relied upon the following Exhibits:
(a)Exhibit A1 – being a print of an email dated 12 October 2021 from the mother to the father in relation to the child’s extracurricular enrolment in sporting activities;
(b)Exhibit A2 –being a three page bundle of screenshots of text messages between the parties on 6, 8, 10 and 11 February 2020 and print of two emails between the parties both dated 7 February 2020 about the child being unwell;
(c)Exhibit A3 – being a one page screenshot text messages between the parties on 14 and 30 June and 14 July 2021 and an email from the father to the mother on 16 June 2021 about school holiday arrangements departing from the interim orders;
(d)Exhibit A4 – being prints of emails from the father to the mother and from the mother to the father on 20 April 2022 in relation to spend time with arrangements under the interim orders due to the father’s relatives visiting from interstate;
(e)Exhibit A5 – being two pages of prints of emails between the parties on 15, 16, 20 and 21 March 2022 resolving care arrangements whilst the child had COVID-19;
(f)Exhibit A6 – being one page print of an email from K School to the father dated 16 December 2021 with the subject “[K School]-Positive COVID-19 within School Community”;
(g)Exhibit A7 – being two pages from the K School Handbook.
The mother relied upon the following materials:
(a)Her Outline of Case Document filed 4 May 2022 and including a minute of the orders sought by the mother;
(b)Her Amended Response to Initiating Application filed 18 December 2020;
(c)Her Notice of Risk filed 5 July 2018;
(d)The affidavit of the mother adopted by electronic signature in accordance with the then current practice direction on 27 January 2022 and filed that day;
(e)The affidavit of Mr D (the mother’s partner) adopted by electronic signature in accordance with the then current practice direction on 27 January 2022 and filed that day;
(f)The affidavit of Mr Y (the maternal grandfather) adopted by signature in accordance with the then current practice direction on 27 January 2022 and filed that day; and
(g)The Outline of Submissions on Behalf of the Mother (written submissions) provided to the Court by King’s Counsel for the mother on 27 May 2022.
The Expert Report prepared by Dr W dated 16 November 2021 was admitted without objection as Exhibit C1.
The father and Ms B were cross examined by Mr Williams KC, and the mother and Mr D were cross examined by Ms Cantrall of Counsel. Mr Y, the maternal grandfather, was not required for cross examination. Dr W was cross examined on behalf of each of the parties.
The competing positions of the parties and the outstanding issues.
The following final orders were sought by the father, as set out in the Minute of Orders Sought in his Case Outline document:
THE COURT NOTES:
A.       The following definitions for the purpose of these orders:
A.1     "Applicant" and "father" means [Mr Hagans];
A.2     "[X]" means [X] born 2015;
A.3     "parents" and "parties" means the mother and the father;
A.4     "Respondent" and "mother" means [Ms Hagans].
B.The father agrees to sign the necessary applications to enrol [X] to commence her secondary education from Year 7 at [S School], [T School] and/or [U School] but the issue as to which school [X] should attend from Year 7, including whether [X] attends a public school or a private school (and as to payment of fees and enrolment costs) remains in dispute between the parties.
THE COURT ORDERS:
1.That the parties have equal shared parental responsibility in respect of making decisions about issues concerning the long term care, welfare and development of [X].
2.That the mother have sole responsibility for making decisions for the day to day care, welfare and development of [X] when [X] lives with her and the father have sole responsibility for making such decisions when [X] spends time with and lives with him.
3.That until [X] commences Year 7, [X] live with the mother.
4.That until [X] commences Year 3, [X] spend time with the father as agreed between the parties in writing, and failing agreement:
4.1      During school term:
4.1.1Each Wednesday from the end of school until the start of school on Thursday;
4.1.2.each alternate weekend from the end of school on Friday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday, commencing on a date to be confirmed but which coincides with Week 2 of the two weekly cycle for [E] and [F] as referred to in paragraph 4b. of the Affidavit of [Mr D] filed 27 January 2022 and resuming at the commencement of each school term as if the school holiday period had not taken place so that if [X] was spending time with the father during the last weekend of the school term, the alternate weekends with the father will recommence on the second weekend of the following school term and if [X] was spending time with the father during the second last weekend of the school term, the alternate weekends with the father will recommence on the first weekend of the following school term;
4.2During the school holidays at the end of Terms 1, 2 and 3, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday;
4.3.During the school holidays at the end of Term 4, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday, and each alternate week thereafter during the said school holidays.
5.That from when [X] commences Year 3 until [X] commences Year 5, [X] spend time with the father as agreed between the parties in writing, and failing agreement:
5.1During school term, in a two weekly cycle maintaining the same pattern as provided in Order 4.1.2 so that Week 2 of the cycle continues unchanged, as follows:
5.1.1In Week 1, and each alternate week thereafter, from the end of school on Wednesday until the start of school on Friday; with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;
5.1.2In Week 2, and each alternate week thereafter, from the end of school on Thursday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday; with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;
5.2During the school holidays at the end of Terms 1, 2 and 3, with the father for the second half of each school holiday period;
5.3During the school holidays at the end of Term 4, from 9.00am on the second Sunday of the school holidays until 9.00am on the following Sunday, and each alternate week thereafter during the said school holidays.
6.That from when [X] commences Year 5 until [X] commences Year 7, [X] spend time with the father as agreed between the parties in writing, and failing agreement:
6.1During school term, in a two weekly cycle maintaining the same pattern as provided in Order 5.1, as follows:
6.1.1In Week 1, and each alternate week thereafter, from the end of school on Wednesday until the start of school on Friday, with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;
6.1.2.In Week 2, and each alternate week thereafter, from the end of school on Wednesday until the start of school on Monday, or 3.30pm on Monday if a public holiday including bank holiday, with the father's time resuming at the commencement of each school term as if the school holiday period had not taken place;
6.2During the school holidays at the end of Terms 1, 2 and 3, with the father for the second half of each school holiday period;
6.3.During the school holidays at the end of Term 4, with the father for the first half of each school holiday period, in even numbered years and the second half of each school holiday period, in odd numbered years.
7.That from when [X] commences Year 7, [X] live with each of the parties as agreed between them in writing, and failing agreement:
7.1During school term, in a two weekly cycle maintaining the same pattern as provided in Order 6.1, as follows:
7.1.1In Week 1, and each alternate week thereafter, with the mother from after school on Monday until after school on the following Monday, or if [X] is not attending school then 5.00pm;
7.1.2.In Week 2 and each alternate week thereafter, with the father, from after school on Monday until after school on the following Monday, or if [X] is not attending school then 5.00pm;
with this arrangement to resume at the commencement of each school term as if the school holiday period had not taken place so that the parent with whom [X] was living during the last week of school term has [X] living with him or her for the second week of the following term and each alternate week thereafter;
7.2During the school holidays at the end of Terms 1, 2 and 3, with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period;
7.3.During the school holidays at the end of Term 4:
7.3.1.with the mother for the first half of each school holiday period, in odd numbered years and the second half of each school holiday period, in even numbered years;
7.3.2.with the father for the first half of each school holiday period, in even numbered years and the second half of each school holiday period, in odd numbered years.
8.        That for the purposes of these Orders:
8.1.The school holiday period to commence at the conclusion of school on the last day of the school term;
8.2.The school holiday period to conclude at the commencement of school on the first day of the next school term;
8.3.If there are an odd number of days in the school holiday period then, for the purposes of Orders 5.2, 6.2, 6.3, 7.2 and 7.3, changeover to occur at 12.00pm on the day that is the midpoint between the first and last days of the school holiday period;
8.4.If there are an even number of days in the school holiday period then, for the purposes of Orders 5.2, 6.2, 6.3, 7.2 and 7.3, changeover to occur at 9.00am on the first day of the second half of that school holiday period.
9.That notwithstanding any other order, [X] spend time with the father in the event that the father elects, in accordance with Order 11, to spend time with extended family including to travel with the child outside of the Commonwealth of Australia, as follows:
9.1During the school holiday period at the conclusion of Term 2 in 2022, from the conclusion of school on the last day of school term until 5.00pm on the day before the commencement of the next school term or, in the alternative, during the school holiday period at the conclusion of Term 4 in 2022, for a period of 2 weeks, commencing at 9.00am on Sunday 1 January 2023 and concluding at 9.00am on Sunday 15 January 2023;
9.2.During the school holiday period at the conclusion of Term 4 in 2024, for a period of up to 3 weeks during the second half of the said school holiday period; and
9.3.During the school holiday period at the conclusion of Term 2 in 2026 and every even-numbered year thereafter, from the conclusion of school on the last day of school term until 5pm on the day before the commencement of the next school term.
10.That notwithstanding any other order, [X] live with the mother in the event that the mother elects, in accordance with Order 11, to spend time with extended family including travelling with the child outside of the Commonwealth of Australia as follows;
10.1During the school holiday period at the conclusion of Term 3 in 2022 from the conclusion of school on the last day of school term until 5.00pm on the day before the commencement of the next school term;
10.2.During the school holiday period at the conclusion of Term 4 in 2023, for a period of up to 3 weeks during the second half of the said school holiday period; and
10.3.During the school holiday period at the conclusion of Term 2 in 2027 and every odd-numbered year thereafter, from the conclusion of school on the last day of school term until 5pm on the day before the commencement of the next school term.
11.That for the purposes of Orders 9 and 10, any election to be in writing and provided to the other party by no less than 3 months prior to the proposed travel with [X], save and except that for the purposes of travel pursuant to Orders 9.1 and 10.1, any election is to be provided within 7 days of the date of these Orders.
12.      That notwithstanding any other order:
12.1In the event that the father elects to spend time with [X] during the school holiday period at the conclusion of Term 4 in 2022 pursuant to Order 9.1, [X] shall live with the mother for a period of 2 weeks from 9.00am on Sunday 15 January 2023 until 9.00am on Sunday 29 January 2023, with the week about arrangement pursuant to Order 4.3 resuming thereafter in the same pattern as before 9.00am on Sunday 1 January 2023;
12.2.In the event that the father elects to spend time with [X] during the second half of the school holiday period at the conclusion of Term 4 in 2024 pursuant to Order 9.2, [X] shall live with the mother for the first half of the school holiday period at the conclusion of Term 4 in 2024;
12.3.In the event that the mother elects to spend time with [X] during the second half of the school holiday period at the conclusion of Term 4 in 2023 pursuant to Order 10.2, [X] shall live with the father for the first half of the school holiday period at the conclusion of Term 4 in 2023.
13.That notwithstanding any other order, and unless otherwise agreed between the parties in writing:
13.1.If Easter falls outside the school holiday period, [X] live with the father from 4.00pm on Easter Thursday until 5.00pm on Easter Monday in odd numbered years;
13.2.If Easter falls outside the school holiday period, [X] live with the mother from 4.00pm on Easter Thursday until 5.00pm on Easter Monday in even numbered years;
13.3.[X] live with the father on the Father's Day weekend from 5.00pm on the Saturday until 5.00pm on Father's Day each year;
13.4.[X] live with the mother on the Mother's Day weekend from 5.00pm on the Saturday until 5.00pm on Mother's Day each year;
13.5.[X] live with the father from 11.00am on 24 December until 11.00am on 25 December in even numbered years and from 11.00am on 25 December until 5.00pm on 27 December in odd numbered years;
13.6.[X] live with the mother from 11.00am on 24 December until 11.00am on 25 December in odd numbered years and from 11.00am on 25 December until 5.00pm on 27 December in even numbered years;
13.7.[X] spend time with the parent with whom she is not otherwise spending time or living with on her birthday each year from after school until 6.15pm if it is a school day and from 8.00am to 1.30pm if her birthday falls on a weekend or day on which [X] is not attending school;
13.8.[X] spend time with her mother on her mother's each year in the event that [X] is not otherwise spending time or living with her on that day, from after school until 6.15pm if occurring on a school day and from 9.00am to 1.30pm if occurring on a non-school day;
13.9.[X] spend time with her father on his birthday each year in the event that [X] is not otherwise spending time or living with him on that day, from after school until 6.15pm if occurring on a school day and from 9.00am to 1.30pm if occurring on a non-school day.
14.That the parent with whom [X] is living will do all things necessary to facilitate reasonable telephone, Skype and FaceTime contact between [X] and the other parent, at times agreed between the parents, and failing agreement, as follows:
14.1.Between 10.00am and 11.00am on Saturday;
14.2.At any reasonable time [X] wishes to communicate with the other parent with whom she is not living or spending time;
and for the purposes of this order, the parent with whom [X] is living will use his or her best endeavours whenever possible to provide [X] with privacy to communicate without distractions or interruptions.
15.That each parent will provide the requisite written or verbal consents, authorities, agreements and information including passwords necessary to access school software applications and platforms to facilitate both parents receiving and having access to:
15.1School premises and staff; and
15.2.School reports, photographs, event notices including excursions, and attendance requests and notices.
16.That each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household, in the presence or hearing of [X].
17.That each of the parents is restrained from allowing [X] to remain in the presence of or within her hearing of any other person who is making comments derogatory of the other parent, any member of the other parent's family or any member of the other parent's household.
18.That unless otherwise agreed between the parties in writing:
18.1The father or his nominee will collect [X] from school at the commencement of each period during which [X] is spending time or living with her father, and on occasions when [X] will not be at school at the commencement of her time with the father, then the father will collect [X] from the mother's place of residence; and
18.2The mother or her nominee will collect [X] from school at the commencement of each period during which [X] is spending time or living with her mother, and on occasions when [X] will not be at school at the commencement of her time with the mother, then the mother will collect [X] from the father's place of residence.
19.That each party shall inform the other as soon as practicable, and in any event within four hours of any serious illness or injury, not including common colds and like illnesses, suffered by [X] whilst in the care of that parent and of any hospital treatment required by [X].
20.That neither parent may permit [X] to consult with any counsellor, therapist, psychologist or psychiatrist, without first obtaining the consent of the other parent in writing, with such consent not to be unreasonably withheld.
21.That each parent shall notify the other parent of the name of any medical practitioner, health professional or alternative health professional who treats [X] when she is in the care of that parent, and provide such person with an authority to provide to the other parent such documents and information as that other parent may require in relation to [X].
22.That each parent must notify the other by email not more than 24 hours after any change to their residential address, landline telephone number (if any), mobile telephone number and email address.
23.That each of the parents is restrained from discussing the arrangements for [X] or any alteration to these arrangements at the point of collection or return of [X] at the commencement or conclusion of her time with either parent.
24.That each of the parents be permitted to travel with [X] outside the Commonwealth of Australia, provided:
24.1The party who is proposing to travel ("the travelling party") shall provide the other party with notice in writing of his or her intention to take [X] from the Commonwealth of Australia, including details of the proposed country or countries of destination and dates of travel not less than 42 days prior to her departure;
24.2.The travelling party shall provide to the other party an itinerary, including times and dates of the proposed travel, details of the proposed destinations, copies of [X]'s return flight tickets, if applicable, the contact details for the travelling party and [X] during the proposed travel not less than 14 days prior to her departure;
24.3.Subject to Orders 9 and 10, the proposed period of travel shall occur during the time that [X] is spending time with that parent unless otherwise agreed between the parties in writing;
24.4.The travelling party shall ensure that [X] has available to her during the proposed travel period such electronic device to enable the other party to communicate with [X] via FaceTime/Skype and by phone not less than three times per week until [X] commences Year 5 and thereafter not less than twice per week; and
24.5.The travelling party shall ensure that 28 days prior to [X]'s departure from the Commonwealth of Australia [X] has received all vaccinations and inoculations available to her against disease from which she may be at risk in the country or countries where [X] will be travelling, in accordance with the recommendation of the World Health Organisation for medium to high risk of infection current at that time and will provide the other parent with evidence of same 28 days prior to [X]'s departure.
25.That the mother shall retain possession of [X]'s Australian and British passports ("[X]'s passports") and provide the father with [X]'s passports not later than 14 days prior to the intended date of departure for the proposed travel with the father and the father shall return [X]'s passports to the mother when [X] next returns to the mother's care following the father's return to Australia with [X] and in any event within 7 days of his return to Australia with [X] .
26.That each of the parties shall do all acts and things and sign all documents necessary to ensure that [X] has a valid Australian and British passport and shall take all steps necessary to sign any application for an Australian and British passport and passport renewal for [X] within 7 days of being presented with such an application in a proper and completed form by the other party and the parties agree to be equally liable for the costs.
27.That until [X] is 15 years of age the parties shall accompany [X] on all domestic and international flights for the purpose of travel with [X] while she is in their respective care unless otherwise agreed between the parties in writing.
28.Each of the mother and father shall sign all documents necessary to enrol [X] at [S School], [T School] and [U School] from the commencement of Year 7.
29.That the mother pay the father's costs of and incidental to these proceedings.

The following final orders were sought by the mother, as set out in the minute of orders forming part of the Outline of Case Document filed 4 May 2022:
1.That the parties have equal shared parental responsibility in respect of making decisions about issues concerning the major long term care, welfare and development of [X].
2.That the mother have sole responsibility for making decisions for the day to day care, welfare and development of [X] when [X] lives with her and the father have sole responsibility for making such decisions when [X] spends time with him.
3.        That [X] lives with her mother.
4.That from the date of these orders [X] spend time with the father during all school terms as agreed between the parties in writing, and, failing agreement:
4.1Each Wednesday from the conclusion of school until Thursday at the start of school,
4.2Each alternate weekend from the conclusion of school on Friday until the start of school on Monday, or 3.30pm on Monday, if the Monday is a public holiday, and each alternate weekend thereafter and it is noted that the alternate weekend pattern is to coincide with the weekend time the Mother's step children spend with her.
4.3With the mother at all other times during the school term.
with the alternate weekend arrangements in the school term to recommence after each school holiday period as if the school holiday period had not occurred (such that the school holiday arrangements will not break the pattern of the alternate weekends [X] is in the father's care from conclusion of school Friday to before school Monday)
5.That from 2022 and thereafter, [X] spend time with her father during the Term 1, 2 and 3 short school holiday periods, as agreed between the parties in writing, and, failing agreement as follows:
5.1During the second week of the short school holiday periods from 9.00am on the second Sunday of the school holiday periods until 9.00am on the third Sunday of the school holiday periods, with the school term arrangements to resume in the same pattern as prior to the school holidays.
5.2At all other times with the mother.
6.During the school holiday period at the end of Term 4 2022, and thereafter [X] spend time with the parents as follows:
6.1From the conclusion of term 4 until 3pm 24 December, in accordance with order 4 herein.
6.2For the remaining school holiday period at the end of Term 4, [X] spend time in an equal time arrangement with the parents on a week about basis as follows:
6.2.1With the mother in week 1, and each alternate week thereafter, and
6.2.2With the father in week 2, and each alternate week thereafter during the said school holiday period.
6.2.3At all other times as agreed between the parties in writing.
And it is noted that for the avoidance of doubt the "remaining school holiday period at the end of Term 4" referred to herein is to be calculated from and commence at 5pm on 27 December each year and conclude on the first day of school in Term 1, and with the alternate weekend arrangements in the school term to recommence after the Term 4 school holiday period in accordance with Order 4.2 as if the Term 4 school holiday period had not occurred.
7.        That notwithstanding any other Order:
7.1If Easter falls outside the school holiday period, [X] spend time with the father from 8.00am on Good Friday until 5.00pm on Easter Monday in odd numbered years;
7.2If Easter falls outside the school holiday period, [X] live with the mother from 8.00am on Good Friday until 5.00pm on Easter Monday in even numbered years;
7.3That [X] spend time with the father on the Father's Day weekend from 5.00pm on the Saturday until 5.00pm on Father's Day each year;
7.4That [X] live with the her mother on the Mother's Day weekend from 5.00pm on the Saturday until 5.00pm on Mother's Day each year;
7.5That [X] spend time with her father from 3pm on 24 December until 3pm 25 December in even numbered years and from 3pm on 25 December until 3pm on 27 December in odd numbered years;
7.6That [X] live with her mother from 3pm on 24 December until 3pm on 25 December in odd numbered years and from 3pm on 25 December until 3pm on 27 December in even numbered years;
7.7That [X] live with or spend time with the parent with whom she is not living on her birthday each year from after school until 6.15pm if it is a school day and from 9.00am to 12pm if her birthday falls on a weekend or day on which [X] is not attending school;
7.8That [X] live with her mother on her mother's birthday each year, and in the event that [X] is not living with her on that day, from after school until 6.15pm if occurring on a school day and from 9.00am to 12pm if occurring on a non-school day; and
7.9[X] will spend time with her father on his birthday each year and in the event that [X] is not otherwise living with him on that day from after school until 6.15pm if occurring during a school day and from 9.00am to 12pm if occurring on a non-school day.
8.That each of the parents will do all things necessary to ensure [X] has reasonable telephone and Facetime contact with the other parent with whom [X] is not living or spending time with in accordance with her wishes and the parent with whom she is living with/spending time with will facilitate such communication with the other parent at least once on the weekend that [X] is living with/spending time with that parent.
9.That each parent will provide the requisite written or verbal consents, authorities and agreements to facilitate both parents receiving and having access to:
9.1After school care/school premises and staff; and
9.2After school care/school reports, photographs, event notices and attendance requests, circulars sent to parents, emails sent to parents and any other activity of which [X] is a participant and this Order shall be sufficient authority for each parent to receive such information and documents directionly from the school attended by [X].
10.That each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household, in the presence or hearing of [X].
11.That each of the parents is restrained from allowing [X] to remain in the presence of or within her hearing of any other person who is making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household.
12.That for the purpose of the changeovers that do not take place at [X]'s school or afterschool care or extracurricular activities, the parent with whom [X] has been spending time with, or that parent's nominee, will deliver [X] to the other parent's home at the conclusion of their time with [X].
13.That each party shall inform the other as soon as practicable, and in any event within four hours of any serious illness or injury, not including common colds and like illnesses, suffered by [X] whilst in the care of that parent and of any hospital treatment required by [X].
14.That neither parent may permit [X] to consult with any counsellor, therapist, psychologist or psychiatrist without first obtaining the consent of the other parent in writing, with such consent not be unreasonably withheld.
15.That each parent shall notify the other parent of the name of any medical practitioner, health professional or alternative health professional who treats [X] when she is in the care of that parent, and provide such person with an authority to provide to the other parent such documents and information as that other parent may require in relation to [X].
16.That each of the parents is restrained from discussing the arrangements for [X] or any alteration to these arrangements at the point of collection or return of [X] at the commencement or conclusion of her time with either parent.
17.Both parents are permitted to attend at [X]'s school events, functions and other activities involving parents even when [X] is not in his/her care.
18.Both parents are permitted to attend [X]'s extra curricular activities including but not limited to training, games, ceremonies and other social functions even when [X] is not in his/her care.
19.That each of the parents be permitted to travel with [X] outside the Commonwealth of Australia, provided:
19.1The final destination of the proposed travel is to a Hague Convention Country, and unless otherwise agreed between the parties in writing, excluding any transit country where the parties shall not be permitted to leave the airport precincts;
19.2The party who is proposing to travel ("the travelling party") shall provide the other party with a copy of the proposed itinerary, including times and dates of the proposed flights, details of the proposed destination and the contact details of where [X] will be staying during the proposed travel not less than 28 days prior to her departure;
19.3The proposed period of travel shall occur during the time that [X] is spending time with that parent unless otherwise agreed between the parties in writing;
19.4The travelling party shall ensure that [X] has available to her during the proposed travel period such an electronic device to enable the other party to communicate with [X] via FaceTime/Skype and by phone not less than every third day; and
19.5The travelling party who proposed the travel out of the Commonwealth of Australia with [X] shall ensure that 28 days prior to [X]'s departure from the Commonwealth of Australia that she has received all appropriate vaccinations/inoculations and will provide the other parent with evidence of same at that time.
20.That the party not travelling with [X] overseas shall inform the travelling parent whether she/he consents to the overseas travel within 7 days of receiving the particulars referred to in Order 19 and such consent shall not be unreasonably withheld. Upon receipt of such consent the travelling party shall provide confirmation of the particulars referred to in Order 19 together with a copy of [X]'s return travel tickets to the other party not less than 28 days prior to her departure.
21.That the mother shall provide the father with [X]'s passport not later than 14 days prior to the intended date of departure of the proposed travel with the father, and the father shall return [X]'s passport to the mother within 72 hours of his return to Australia with [X].
22.That each of the parties shall do all acts and things and sign all documents necessary to ensure that [X] has a valid Australian passport and shall take all steps necessary to sign any application for an Australian passport renewal for [X] within 7 days of being presented with such an application in a proper and completed form by the other party and the parties shall be equally liable for the costs of the Australian passport.
23.That the parties shall accompany [X] on all domestic and international flights while [X] is in their respective care unless otherwise agreed between the parties in writing.
24.That the father be permitted to obtain a UK passport for [X] and the mother shall do all acts and things and sing any application for a UK passport, and any UK renewal passport for [X] within 7 days of being presented with such an application in a proper and completed form by the father and the father shall be liable for all costs associated with the application and any renewal thereof and until [X] turns 18 years of age, the father is restrained from using, permitting or allowing [X] to travel on her UK passport.
25.Each of the mother and father shall do all things and sign all documents necessary to enrol [X] to commence Year 7 at [S School] and/or do all such things to ensure [X] remains enrolled at [S School], and if no placement is available, then [T School] to commence from Year 7 and if that is not available, then at [U School] from Year 7 AND IT IS NOTED that each party will pay half of all school fees and incidental costs associated with [X] attending at [S School] or such other school [X] may attend as is agreed between the parties in writing.
26.      That the father pay the mother's costs of and incidental of these proceedings.
Many of the orders sought by the parties are agreed, leaving the main issue being the amount of time the child will spend with her father.
The mother seeks orders that provide for each Wednesday night and alternate weekends from Friday to Monday during school term, half of the school holidays at the end of Terms 1, 2 and 3 and a bit less than half of the school holidays at the end of Term 4, and times on special occasions at Easter, Father’s Day, Christmas and birthdays, all being basically in line with, though in some respects a little less than, the time provided in the prevailing interim orders made following interim hearing on 3 June 2020.
The father seeks orders that provide for an increasing regime of time at two yearly intervals, of five nights per fortnight, then six nights per fortnight than seven nights per fortnight, becoming a shared care arrangement on a week about basis once the child commences Year 7, which would occur in 2028, after school holidays, and times on special occasions at Easter, Father’s Day, Christmas and birthdays.
There are differences in starting and finishing times for the child’s time with her father and with her mother in the orders sought by the parties relating to the special occasions.
The father seeks specific orders providing for the child to spend time with each parent “with extended family including to travel with the child outside the Commonwealth of Australia” on the travelling parent making an election in that regard, including time that the child would otherwise be with the other parent during school holidays. The mother opposes those orders.
The mother seeks an order that the child have telephone or FaceTime contact with the parent with whom she is not living “in accordance with her wishes” and “at least once on the weekend that [X] is living with/spending time with” the other parent, whereas the father seeks that such communication be by telephone, Skype and FaceTime “between 10:00AM and 11:00AM on Saturday” and “at any reasonable time [X] wishes”.
In relation to changeovers, the mother proposes that any changeovers not taking place at the child’s school, after-school care or extracurricular activities occur by the parent with whom the child has been spending time, or that parent’s nominee deliver the child to the other parent’s home. The father proposes that such non-school changeovers occur by the father collecting the child from the mother’s place of residence at the start of his time and the mother collecting the child from the father’s place of residence at the end of his time.
The father seeks an order that each parent notify the other by email not more than 24 hours after any change to their residential address, landline telephone number (if any), mobile telephone number and email address, and though there was no such order was sought in the mother’s Minute of Orders, Counsel for the mother indicated that such order can be made by consent.
Similarly, the mother sought orders that both parents be permitted to attend the child’s school events, functions and other activities involving parents, regardless of which parent has care of the child at the time, and that both parents are permitted to attend the child’s extracurricular activities, regardless of which parent has care of the child at the time and Counsel for the father indicated the father’s consent to those orders.
Both parents sought an order providing for the child to travel outside the Commonwealth of Australia with the parent on certain conditions without the necessity for strict compliance with the certification of consent requirements of section 65Y of the Family Law Act 1975 (Cth) (“the Act”), differing only in their proposal for the number of days prior to travel that a proposed itinerary must be provided and the mother’s order proposing that such travel by only be to a “Hague Convention Country unless otherwise agreed between the parties in writing, excluding any transit country where the parties shall not be permitted to leave the airport precincts”.
Whilst both parties seek orders that permit the father to obtain a UK passport for the child, the mother seeks an addition to the order restraining the father from “using, permitting or allowing [X] to travel on her UK passport” until she turns 18 years of age.
THE EVIDENCE
I have carefully read and considered all of the material relied upon by each of the parties in the final hearing, including the exhibits including the Expert Report by Dr W that is Exhibit C1. I have reviewed and carefully considered the evidence of the parties in cross examination and re-examination and the evidence of Ms B, the father’s partner, and of Mr D, the mother’s partner in cross examination and re-examination, and the evidence of Dr W in cross examination on behalf of each of the parties, referring to the audio recordings of the cross examination and re-examination evidence.
I also reviewed and carefully considered the written and oral submissions by Counsel for the father and Kings Counsel for the mother.
In providing the following summary of the evidence I have omitted large tracts of the evidence in chief in cross examination of the parties and their partners as not being essential to traverse in these Reasons, given the issues outstanding between the parties, and that, as I will elaborate later in these Reasons, this is in no respect a “risk case”. This matter is principally concerned with what progression, if any, and endpoint there should be to the time between the child and her father in her best interests with those interests as the paramount consideration in circumstances where there is no element of risk and it is patent on all of the evidence that there is a significant benefit to the child in having a meaningful relationship with both her parents. Accordingly, and amongst the other additional considerations to be reviewed, what care arrangements for the child with each of her parents will provide the best opportunity in all her circumstances for the child to maintain and continue to develop a meaningful relationship with each of the parents.
The father was born in 1975 and was 46 years of age at final hearing. The mother was born in 1979 and was 43 years of age at final hearing. The parties commenced cohabitation in 2007 and married in 2009. The child was born in 2015 and the parties separated on 15 April 2016 when the child was four months of age, following which the father left the matrimonial home at Suburb C and began residing in rental accommodation at Suburb Z. In mid-2016 the matrimonial home was sold and the mother and the child began residing with the maternal grandparents at their home in Suburb C. The parties were divorced in May 2018, with the divorce order becoming final in June 2018.
The father re-partnered with Ms B, 33 years of age, in 2016, and they commenced cohabitation in about 2018 in rental accommodation at Suburb A. They have a child, V. Ms B was born in the United Kingdom and moved to Australia in 2013 and is an Australian citizen. She was introduced to X in about 2017. The child refers to her as “AC”. The father indicated during his cross examination that in March prior to the hearing he moved with Ms B and V from Suburb A to a four-bedroom home at Suburb AD, where X has her own bedroom.
On 28 March 2018 the mother commenced a relationship with Mr D and in 2021 they were married. Mr D has two children from his previous relationship, E, 13 years of age, and F, 11 years of age. E and F spend five nights a fortnight from Wednesday after school until Monday before school each alternate weekend and half of the school holidays in a week about cycle with the mother and Mr D. The family unit lives in their own home at Suburb AE. At the time of final hearing E was in Year 7 at AF School and F was in Year 5 at AG School.

The father is employed on a full-time basis as a manager by Employer G in the Sydney CBD. He works a flexible 40-hour week, leaving work at 3:00PM on days he is to collect the child from school at 3:30PM. His flexible work arrangements allow him to take time that is necessary to attend appointments with the child, collect her from and drop her to school without the need to take formal leave.
In 2019 the father was diagnosed with adult Attention Deficit Disorder (ADD), for which he takes prescription medication when necessary. He is under the care of a psychiatrist for his ADD in consultation every three months. The father has had some mental health difficulties in the past, principally in the late 1990s when he was a resident in the United Kingdom. He was prescribed medication for anxiety on two occasions in his early twenties, once following an assault and later following the termination of a long-term relationship. During his early twenties in the United Kingdom he used recreational drugs and after some professional counselling with a psychologist he ceased any regular use of illicit substances, relapsing into some occasional use after coming to Australia in 2004 on between three and six occasions. The father asserted he has not used illicit drugs since two or three years before the child was born, and there is no evidence to contradict that statement.
I have carefully considered all of the evidence of both of the parties and I find that there is no concern or element of risk for the child in relation to the father’s mental health. In making this finding I keep fully in mind the incident in late 2010 by the father with the necktie on the door handle. The father has not taken any anti-anxiety medication since about 2013. Following the parties’ separation in April 2016, he consulted a psychologist for some counselling and support for anxiety over a period of about 12 months. He asserts that during the sessions he learned skills and techniques to cope with stress.
The mother says in paragraph 164 of her trial affidavit, “I continue to be concerned that [Mr Hagans] may still be using drugs, even on a recreational basis”, but presents no evidence to indicate that there is a basis for a concern.
The father denies having behaved in an aggressive or intimidating manner towards the mother on any occasion following their separation.
Ms B is employed as a manager with AJ Company with flexible working arrangements and is able to work from home on a regular basis. Ms B assists the father with the child’s care, but the father takes primary responsibility for the child’s care when she is with him. In relation to an assertion that the child has informed the mother that on occasions Ms B screams at her and hits her, Ms B deposes that she has never screamed at or hit the child.
The child has a close and loving relationship with her half-sibling, V. As both parents say, the child has a close and loving relationship with her step-sisters, E and F.
Most of the father’s family members live in the United Kingdom, including the maternal grandmother, though she visits Sydney two to three times a year and is known to the child as “Nanny AK”.
The father, to his great credit, includes the following evidence in his trial affidavit:
[X] loves [Ms Hagans] very much and they have a strong bond and close relationship. I think [Ms Hagans] is a really good mother to [X]. [X] speaks often and fondly about [Mr D] and his daughters and I understand that [X] has a close and loving relationship with each of them. [X] has an extremely close and loving relationship with [Ms Hagans]’s parents who have assisted regularly with her care since she was born.
Evidence of that nature by one parent about the other parent in trial evidence in chief gives the Court some confidence that final orders in this matter will be the last the court system engages with this family’s arrangements.
The mother is a professional employed by AL Company on a full-time basis “with extremely flexible working arrangements”. She is able to work at the office during school hours five days a week or from home at any time she chooses during the week, making her available for the child before and after school. Following the birth of the child, the mother took 12 months maternity leave and in 2016 returned to work for days per week with the child attending day-care at Suburb C Monday to Wednesday.
On 21 March 2017 the parties entered into a Limited Child Support Agreement for a period of 12 months, and a Binding Financial Agreement in relation to spousal maintenance. Final property settlement orders were made by consent on 4 April 2017. Pursuant to the limited Child Support Agreement the father paid periodic support for the child of $1592 per month and one half of the child’s private health insurance premiums, medical and dental expenses, childcare costs and agreed extra-curricular activities. Following the expiration of that agreement, the father continued to pay:
(a)Child support as set out in the agreement until June 2020 and thereafter paid child support as assessed;
(b)One half of the child’s private health insurance premiums;
(c)One third of the child’s net day-care costs; and
(d)The child’s swimming lessons costs.
At the time of hearing the child support assessment was $1103.33 per month.
The child has been spending time with the father pursuant to the interim orders made on 3 June 2020 following an interim hearing. Those orders provided for a graduating regime of time between the child and her father culminating in the current arrangement whereby:
(a)The child spends time with the father during school term time each Wednesday from the end of school until Thursday the start of school; and
(b)Each alternate weekend from end of school on Friday until start of school on Monday or 3:00PM on Monday if the Monday is a public holiday, including the Bank Holiday;
(c)For the first week of the school holidays at the end of Terms 1, 2 and 3 from 9:00AM on the first Sunday of the school holidays until 9:00AM on the following Sunday;
(d)During the school holidays at the end of Term 4 from 9:00AM on the first Sunday until 9:00AM on the following Sunday and each alternate week thereafter; and
(e)On special occasions at Easter, Christmas, on Father’s Day and on birthdays as defined in the orders.
The child commenced kindergarten at K School in 2021 and was in Year 1 at the time of the hearing in 2022. She is now in Year 2. The child suffers from a medical condition, treated by medication. X participates in sports with the mother on Thursdays, and takes swimming lessons on Saturday mornings and does sports on Sunday mornings during summer.
The father takes responsibility as between himself and Ms B for disciplining X using discussion of her behaviour and “time out” for the child in her room, though he asserts that the occasions when this is necessary are rare.
Following the parties’ separation the father spent time with the child by returning to the matrimonial home on Tuesday and Thursday evenings from about 5:30PM until about 6:30PM or 7:00PM and on Wednesday and Friday mornings from about 6:30AM until about 7:30AM, and on Saturday mornings for one or two hours between the child’s sleeps, bearing in mind that the child was four months of age at separation.
From 2016 when the child was six months old, time with the father changed to Mondays and Wednesdays in the evenings and each Saturday from about 10:00AM to 1:00PM and shortly thereafter until 2:00PM, and each Sunday from about 3:00PM to 5:00PM, with the father taking the child to his own home on the Saturdays. By November 2016, the father’s time with the child on Saturdays had increased to 9:30AM to 2:30PM, including taking the child to sports lessons at the AM Centre, and spending time with the child at his own home on Monday afternoons. Once the child began attending day-care at Suburb C in December 2016, the father’s time became each Monday and Wednesday from the end of day-care at 3:30PM until 6:15PM and each Saturday from 11:00AM until 5:00PM.
In mid-April 2017 the father’s time with the child increased to seven hours each Saturday from 9:30AM to 4:30PM. From late May 2017, the child began spending time with the father for additional time on public holidays by arrangement between the parents.
The proceedings were commenced by the father in May 2018 and thereafter the time between father and child was regulated by the interim orders.
On occasions between mid-2016 and about September 2019 there was some difficulties for the child at changeovers as described in detail in the mother’s evidence, but from about September 2019 the father asserts that changeovers have proceeded “largely without incident”, though he says that “it usually takes [X] some time to settle in at my house up the changeover …She seeks my attention and can be clingy to me for a short period.”
During his cross examination the father agreed that the child likes predictability, routine and structure and that at the time of hearing it was still taking the child about an hour or so to settle down once she came into the father’s care other than directly from school. He agreed that on rare occasions the child was still emotionally dysregulated and attributed that not to any change in routine by increasing the amount of time she spends in the father’s care, but to the process of transitioning between the two households. The father also asserted during his cross examination that there had only been one or two occasions over the past five years when the child has shown a reluctance to transition into his care, and that he could not recall any such occasions over the previous two years.
Since mid-2018 changeovers not occurring at the child’s school began occurring at the front door of the parties’ respective places of residence, and since the interim orders of June 2020 most changeovers have occurred at the child’s day-care and then school.
In paragraph 30 of her trial affidavit the mother says:
[X] continues to have disturbed sleep upon her return to me after spending time with [Mr Hagans], including crying, wetting the bed and acting out. I observed [X] comes home very tired from [Mr Hagans]’s house, and is often ‘out of sorts’. Most of the time she is unsettled and does not sleep through the night often waking and requiring comfort and reassurance from me.
In addition to my general comment above about having carefully read and considered all of the evidence, I refer in particular to paragraph 70 of the mother’s trial affidavit. That and the succeeding paragraphs down to paragraph 161 detail the mother’s litany of assertions about the child’s reluctance to leave her to spend time with the father and her unsettled behaviours prior to, and following her time with the father. I do not find anything so out of the ordinary or alarming in relation to the child’s best interests with those interests as the paramount consideration that takes this matter outside a fairly usual course of conduct by a child moving between two households between the ages of two years and six years.
The mother asserts in her paragraph 128:
At no time have I stopped time for [X] to spend with [Mr Hagans] being increased on an incremental basis, but I have had issues relating to [Mr Hagans] wanting time increase much quicker than what I believe to be in [X]'s best interest. It has been my observations that [X] has coped well the [sic] gradually increase and change of schedules if the increase is very gradual and [X]'s best interests are considered.
The mother does not propose any increase in the child’s time with her father beyond that provided in the June 2020 interim orders and she does not provide evidence as to what she means by “gradual increase”.
During her cross examination, Ms Cantrall put to the mother that the child had adapted to spending five nights per fortnight in the father’s care, to which the mother responded that she still believed that five nights per fortnight was “too much”, despite that being her application for final orders at the hearing, and despite Dr W’s report at paragraph 181 of his Expert Report that the mother “accepted the current five nights per fortnight and half the school holidays with her father.”
The mother was also cross examined about her refusal to provide the child’s Medicare number to the father to assist him to have the child included on his Medicare card and, when pressed, her best excuse for that refusal was that the father “often relies on me for information he could get elsewhere”. She gave evidence that she had researched the requirements for placing the child on a second Medicare card and was certain and that the father did not need to obtain the child’s number from her. At this point I asked the mother what would take the most time, the time she spent researching that the father can get the child’s Medicare number himself, or the time taken to simply provide the number to the father .The mother responded that the least time would have been spent in to be providing the father with the number.
The father says that when the child is in his care he arranges for her to have communication with her mother whenever she asks to do so and encourages her to call at the said times between 5:30PM and 6:30PM on Saturdays, or at such other time as has been arranged between the parents.
Between October 2018 and February 2019 the parents used the “2Houses” application to communicate, and since then have been communicating primarily by text messages, email or telephone calls. The mother asserts in paragraph 152 of her affidavit that, “communication between Mr Hagans and I has been difficult since separation.” The mother says that she opted to cease using the 2Houses application as it distressed her because the father messaged her:
…almost every day, always about what I believe were trivial aspects of his time with [X] such as what she had eaten, and did not focus on [X]'s emotional well-being, or how she was coping with all the changes.
The father has completed a number of parenting courses being “AN Course”, “AO Course” and “AP Course”.
The child has a current Australian passport, held by the mother, and the parties agree on an order for the mother to continue to be the principal holder of the child’s passport. The child is eligible for a UK passport and dual citizenship in Australia and the UK.
The maternal grandfather, Mr Y, gives evidence in chief of his assistance to the mother since the parents separated and his relationship with the child, in particular his assistance with changeovers for the child, though not at any time recent to the final hearing.
The expert evidence of Dr W
Dr W conducted interviews for preparation of the Expert’s Report on 18 and 19 October 2021 and by Zoom teleconference on 29 October 2021 and used a Skype connection to monitor parent-child observations when he was not present in the room.
During his interview with Dr W, the father criticised the mother’s parenting asserting that she was less aware and ignored the child’s emotional needs, whilst denying all of the mother’s criticisms of his parenting relating to his mental health, capacity, care, attunement and attention to safety matters. Dr W “identified [the father’s] symptoms as indicative of an Adjustment Disorder with Depressed Mood with Anxiety or alternatively a mixed presentation of Anxiety and Depression.” He opined that the father had a nervous predisposition and had mild obsessive-compulsive symptoms.
In relation to the father’s mental health history Dr W had some concern that the father had been referred to Dr AQ in the UK on the basis that Dr AQ was a former colleague of Dr W’s and so Dr W was aware that Dr AQ “specialised in the treatment of substance abuse”. He considered that the father’s account of his substance abuse and subsequent medical history in the UK amounted to an attempt to conceal the reality of those events, indicated by inconsistent accounts. I do not find that this assessment by Dr W is correct. Dr W made an assumption due to his knowledge of Dr AQ’s specialty. I accept the father’s evidence that his referral to Dr AQ resulted in a referral by Dr AQ to a psychologist, and not in any intensive treatment by Dr AQ.
During her interview with Dr W the mother expressed a view that “the current contact arrangements …Have escalated quickly”, and that the child had not coped and, amongst other things, had suffered from night terrors on returning from a stay of seven days with her father. Dr W expressed the opinion that “on further exploration, it was evident that [X] had experienced intermittent nightmares rather than night terrors.”
Dr W noted that the mother “accepted that [Mr Hagans] was a good dad”, and that “[X] enjoyed a good relationship with both parents.” He also noted that the mother “accepted that [X] had adapted to the five nights per fortnight in her father’s care.”
A notable feature of Dr W’s interview with the child was that whilst the interview occurred in the presence of the mother X expressed herself in a manner calculated to please her mother and was reluctant to make statements of a positive nature about her father or Ms B, or even her half sibling, V. When interviewed in the presence of her father, Ms B and baby V, the child was demonstrative in her affections, particularly for her father. I expressed the foregoing based on the following extracts from the Expert Report:
When asked about other family members that she did not live with, she [the child] told me about her dad. She looked to her mum when asked about him. When asked about the best thing about her dad, [X] responded: “Not really anything. I love living with my mum most of all.” The worst thing about being with Dad was “that I don’t get to see my mum often”. (Paragraph 81)
When asked if anyone lived with his [sic] with her dad, [X] responded: “no one else. Well. His girlfriend.” She again looked to her mother. [X] was hesitant. She asked her mother, “Mum. Do I have to have to be in this conversation?” In response to her mother’s encouragement, [X] continued: “[Ms B]. She’s got a baby. And nothing else.” She again asked her mother whether she had to be involved in this conversation. (Paragraph 82)
[X] identified a sad face. “I feel sad when I’m at my dad’s because I miss my mum, don’t I, Mum?” (Paragraph 86)
[X] identified a worried face as weird and scared. She felt this way about thunderstorms. Nothing else made her worried. She then [said (omitted)] to her mother, “Do I ever get worried?” She denied that anyone in the family got worried. (Paragraph 88)
On the arrival of [Mr Hagans], [Ms B] and the baby [V], [X] jumped into her father’s arms with the light. (Paragraph 99)
[X] chatted with her father about her activities and plans for school later in the day. … [X] remained responsive, enthusiastic and playful. … A positive engagement was observed between [X] and her father and [Ms B]. (Paragraph 100).
When asked what made her feel happy, [X] responded: “That I’m with my dad.” (Paragraph 103)
A delightful rapport continued between the members of the paternal family. (Paragraph 104)
In paragraphs 129 and 130 of his report [Dr W] noted:
After an extended period of play with her father [X] was asked about this experience. She told me it was good to see him. She also enjoyed seeing [Ms B]. She told me that she enjoyed living with her mum and also enjoyed living with her dad, but when she lived with her mum she missed dad and when she was with her [dad – omitted] she missed her mum. When asked if she would like to spend more time with her dad, [X] responded, “I would like to spend both the same time because both of them are nice.” The report writer noted her initial response when told that her dad was coming when with her mother. [X] had put her hands over her ears and told the report writer that she wanted to be with her mum and not with her dad. [X] responded, “no. I did want to be with my dad.

The child’s views are found in the Expert Report provided by Dr W. The child appears to express contradictory views when interviewed firstly in the company of her mother and later in the company of her father. I have examined that circumstance earlier in these Reasons and I find that with the assistance of Dr W’s evidence in chief by way of the Expert’s Report and his evidence in cross examination, the child’s views are that she wishes to spend as much time as she can with each of her parents as demonstrated in her comments – “I would like to spend both the same time because both of them are nice.”
X was 6 years of age at the time of the final hearing, and was nearly 6 years of age at the time of the interviews and observation session by Dr W for preparation of the Expert Report. This is not of an age where her wishes or views should be given any great weight by the Court. However, X’s views can be used as an important consideration in that they are an indication that she is happy, comfortable and contented in the company of both of her parents and wishes to spend as much time as circumstances will allow with each of them.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
Dr W expressed the opinion at paragraph 169 of his report, “A loving and secure relationship was identified between [X] and each of her parents. Positive secondary relationships were observed with their respective partners.” On all of the evidence, I agree with Dr W’s opinion and I find that the child has a close and loving relationship with each of her parents and is content to be in either parent’s care at any time, whilst recognising that her primary attachment is with the mother and a secondary attachment is with her father.
The evidence also makes plain that the child has an excellent step-sibling relationship with E and F in a mother’s home and an excellent half-sibling relationship with V in her father’s home. Happily for the child, she also has an excellent relationship with each of her parents’ partners, Ms B with her father and Mr D with her mother. The mother’s evidence in relation to the child’s assertions that Ms B screamed at her and hit her must be seen against the evidence which emerged during the mother’s cross examination and against the mother’s application for final orders, in which she does not find it necessary to seek any special protective orders for the child in relation to Ms B. The motivation for statements made by the child to the mother about Ms B can be various, as discussed by Dr W during his cross examination in relation to the comments made during the interview in the company of her mother about her father. I find that there is no basis to consider the child’s comments about Ms B when considering the orders to be made in relation to the duration of the child’s time with the father.
An important consideration is a coordination of the time that X is in her mother’s care with the time that E and F are in their father’s care so that the three children can be together at the same time.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; to spend time with the child; and to communicate with the child.
Each of the parents has taken every opportunity available to participate in making decisions about major long-term issues for the child and to spend time with the child and communicate with the child. The father has sought through these proceedings to expand at a much quicker pace the time he spends with the child that the mother can accept, and during his cross examination the father was criticised for the pace at which his original applications sought to extend his time with the child. However, having received Dr W’s report the father framed the orders sought by him on final hearing to provide for a graduation in the time the child spends with him towards his ultimate goal of shared care over a much longer period of time, providing increased steps across two-year intervals for the child to adapt fully to each increase and be ready for any further increase.
There was some minor element in the evidence of the mother being disinclined to co-parent fully with the father in sharing cooperatively all information relevant to decision-making about major long-term issues – for example her refusal to provide the child’s Medicare number to the father and her refusal, even during her cross examination, to provide the father with the login details for the school Opperoo app. However, in most respects these parents, despite their patent lack of trust of each other and the imputation by each parent of alternate motives other than the best interests of the child demonstrate, as Dr W put it, “current and future capacity to communicate with each other and resolve difficulties that may arise” despite their mutual lack of trust.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Both parents have fulfilled their obligation to maintain the child.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom she has been living.
The mother does not propose any fundamental change in the child’s circumstances other than a very small lessening of the amount of time she spends with her father.
The father proposes a change in the child circumstances through gradual increases in the amount of time the child spends with him, from the current five nights per fortnight to six nights per fortnight once she commences Year 3 and then seven nights per fortnight, though not consecutive, once she commences Year 5, changing to a week about care arrangement during school term when she commences Year 7.
The mother does not accept that the child can take those steps representing a gradual increase in time with the father without detriment to her best interests in that she will miss, and even grieve, for her primary carer being her mother. The father considers that the steps are in the child’s best interest and that the child will, after possibly some initial difficulties at the commencement of the steps at the start of Year 3 and Year 5, adapt quite quickly to the new regime of time with her father. The father considers that, though the child may will miss her mother in consequence of the longer periods of time away at each graduated step, she will correspondingly miss her father less in being able to spend more time with him.
The likely effect on the child of a change in circumstances as proposed by the father is that she will have periods during which she will need to adapt to the longer periods of time with her father and cope with missing her mother, particularly during those periods of adaption. However, I place significant importance on the evidence of Dr W during his cross examination that there are many aspects of the child’s current spend time with arrangements that are stable and successful and that there is certainly room for further graduating increases in time with her father, but on a “slowed down” basis, giving the child the chance to acclimatise fully to each increase.
However, during his cross examination Dr W was not at all convinced that the child moving to a seven nights with the mother and seven nights with the father arrangement by the time she commences Year 5 was in her best interest. Dr W stayed with the opinion expressed by him in his Expert Report that “once [X] commences high school, I would recommend that week-about shared care be established.”
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis.
This additional consideration does not have any real relevance in this matter at the present time. During his cross examination of the father, Mr Williams explored the uncertainty of the father’s place of residence by the time the child reaches high school and whether it will be in sufficient proximity for a week about shared care arrangement to be practicable. However, the Court cannot decide that such an arrangement is not in the child’s best interest merely on the basis of the possibility that the father may move to too distant a place to make travel to and from school for the child comfortable as to time and distance. The Court must decide the issue on the basis of circumstances as they are where there is no specific evidence of impending likely change in the future.
At the present time the mother resides at Suburb AE and the father at Suburb AD. The child attends K School at Suburb C and there is ample evidence of the father’s household being in a position to deliver the child to and collect her from school on a daily basis.
The capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
Dr W said in paragraph 175 of his report, “both parents were identified to have the capacity to provide for the needs of the child, including physical, emotional and intellectual needs. They were both well supported by their partners.” On all of the evidence I agree with that opinion and I so find.
The father seeks in his case to impugn the mother’s parenting capacity by doubting her ability to provide for the child’s emotional needs. I find that the mother is eminently capable of providing for the child’s needs including her emotional needs.
The mother seeks in her case to impugn the father’s parenting capacity by casting doubt on his child focus, asserting that he disregards the child’s episodes of emotional dysregulation around changeovers and following her spending time with him, but I find that such is not the case. The father was prepared during cross examination to accept that the child experiences emotional dysregulation, but asserted that any such dysregulation occurring around the time of transition from parent to parent very soon disappears as the child settles into the parent’s home.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
X was 6 years of age at the time the hearing and is now 7 years of age. She is of a mixed Australian (on her mother’s side) and the United Kingdom (on her father’s side) heritage. Both parties accept that in the fullness of time the child will be able to travel overseas with either parent, a difference being that the father seeks an order enabling each parent to spend the whole of some school holiday periods with the child overseas. Through such travel she would be able to experience her United Kingdom heritage and experience her extended paternal family.
There is nothing else in this consideration of relevance.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
It is the father’s case that the mother has not demonstrated a responsible attitude to the responsibilities of parenthood in seeking to limit his time with the child below what he considers, from time to time, to be appropriate. However, I accept that the mother’s attitude to increases in the child’s time have been based on her convictions as to what she considers to be the best interests of the child. The mother demonstrated a consistently proactive approach to ensuring that the child spend time with the father. This commenced immediately upon separation and the mother providing her own home, with her being present, for that purpose at the beginning, despite the circumstances giving rise to the end of the relationship. This demonstrates an acute child focus on the part of the mother.
On all of the evidence I find that both of the parents have demonstrated a wholly appropriate attitude to the child and the responsibilities of parenthood.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Part of the argument advanced on behalf of the mother for limiting the father’s time with the child in seeking final orders to be the current regime under the interim orders is that future circumstances cannot be known, such as to place of residence, and that an expansion to shared care on a broken fortnight or a week about basis may not turn out to be appropriate in the long‑term for practical reasons.
However, I refer in that regard to my comments above in relation to predicting the future and consider that it is far more in the best interests of the child to make final orders based upon the Court’s consideration of what is in the best interests of the child at the present time and for the foreseeable future with the child’s interests as the paramount consideration than to go “part way” and then leave any future expansions for future agreement between the parties or further litigation.
PARENTAL RESPONSIBILITY
The presumption set out in section 61DA of the Act that it is in the best interests of the child for her parents to have equal shared parental responsibility applies in this matter as neither of the circumstances causing the presumption to not apply set out in subsection 61DA(2) are present.
Despite some lack of trust between the parties, the parties have consistently shown since the time of their separation that they are able to communicate effectively and co-parent the child and “resolve difficulties that might arise”.[7]
[7] Expert Report by Dr W, paragraph 189.
There is nothing in the evidence that would lead me to consider that the presumption is rebutted on the basis that it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her. Both parents seek an order that they have equal shared parental responsibility and I will make the order.
SECTION 65DAA – EQUAL TIME
As I will make an order that the parents have equal shared parental responsibility for the child I must consider the matters set out in section 65DAA of the Act. Is spending equal time with each of her parents in the child’s best interests, and, as a separate question, is the child spending equal time with each of her parents reasonably practicable? The matters to be considered when determining whether it is reasonably practicable for the child spend equal time with each of her parents are set out in section 65DAA(5). If the answer to both questions is ‘yes’ then I must go on to consider making an order to provide for the child to spend equal time with each of her parents.
The current interim orders arrangement have subsisted since June 2021 and pursuant to that arrangement the child spends time with the father – from the end of school on Wednesday to the start of school on Thursday each week during school term, each alternate weekend during school term from the end of school on Friday until the start of school on Monday, and half of each school holiday period with her father – being five nights per fortnight during school term.
I accept the evidence that the child shows some emotional dysregulation at around the time of some transitions between the parents and on occasions once she has transitioned to the care of a parent. The child is seven years of age and has been in the primary care of her mother since she was four months of age. It would not be in her best interests to leap from the current arrangement to an equal time arrangement on the making of final orders, and such a move is not sought by either parent.
However, on all of the evidence I do find that it is in the child’s best interest with that interest as the paramount consideration that ultimately her care be shared between her parents by her spending equal time with each of her parents. I find that such circumstances should not, in her best interest, be reached until she commences high school in Year 7.
As to whether it is reasonably practicable for the child to spend equal time with each of her parents now, I note that the parents live in sufficient proximity to each other and the child’s school to make it practicable. I also note that the parents have a current future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that time. However, the mother’s capacity to actually implement such an arrangement immediately must be in doubt given the strength of her evidence as to her belief that the progression of equal time will never be in the child’s best interest. I also consider that an equal care arrangement at the moment would have a detrimental impact on the child for reasons I have referred to above. On that basis I find that it is not currently reasonably practicable for the child spend equal time with each of her parents.
However, I find that the considerations that stand against equal care at the present time will have abated by the time the child reaches high school in circumstances where time with the father has increased in the meantime to fully substantial and significant time on an 8/6 nights per fortnight basis. This is in effect the step proposed by him to occur when the child commences Year 3, though I consider that such step would be more appropriate when she commences Year 4, with the next increase to shared care occurring when she commences Year 7.
Having determined that it is not in the child’s best interests and it is not reasonably practicable for the child to spend equal time with each of her parents immediately upon the making of final orders, I am not required to consider making such an order.
I have determined that it is in the child’s best interests and it is reasonably practicable for her to spend equal time with each of the parents once she reaches Year 7 and commences high school.
SECTION 65DAA - SUBSTANTIAL AND SIGNIFICANT TIME
As I will make an order that the parents have equal shared parental responsibility for the child and I have determined that I will not make an order for the child to spend equal time with each of the parents upon the making of final orders, I must consider whether the child spending substantial and significant time with each of her parents would be in her best interests. I must then consider whether the child spending substantial and significant time with each of the parents is reasonably practicable. If I consider that the answer to both considerations is ‘yes’ then I must consider making an order to provide for the child to spend substantial and significant time with each of her parents.
What is meant by child being taken to spend substantial and significant time with the parent is set out in section 65DAA(3) and involves the child spending time with the parent that includes both days that fall on weekends and holidays and days that do not fall on weekends or holidays and that allows the parent to be involved in the child’s daily routine on occasions and events of particular significance to the child, and allows the child to be involved in occasions and events that are of significance to the parent.
As I’ve said already in these Reasons, the current interim orders provide for the child to have substantial and significant time with each of her parents, though the time she spends with her father is at the bottom end of substantial and significant time in that it does not allow the father to be involved in the child’s daily routine to the extent that she both wakes up and goes to bed in his household on the same school day.
I do on all the evidence find that it is in the child’s best interest to spend substantial and significant time with each of her parents. I find that the current regime of substantial and significant time should continue until X commences Year 4 with the substantial and significant time to then increase to each alternate week from the end of school on Wednesday until start of school on Friday and in the other alternate week from the end of school on Thursday until start of school on Monday or 3:30PM if the Monday is a public holiday including a bank holiday, and for half of each school holiday period, not a truncated section of the Christmas school holidays as if those school holidays commenced on 24 December in each year.

The evidence has shown that it is currently reasonably practicable for the child to spend substantial and significant time with each of her parents, in relation to how far apart the parents live, the parents’ current future capacity to implement that arrangement for the child, the parents’ current future capacity to communicate with each other and resolve difficulties that might arise in implementing a substantial and significant time arrangement, and in that I do not consider that there is any detrimental impact upon the child in having substantial and significant time with each of her parents that would render such an arrangement not in the child’s best interests.
Having determined that it is in the child’s best interest to spend substantial and significant time with each parent and that it is reasonably practicable to have that arrangement, I will make orders as already foreshadowed that provide for the child to have substantial and significant time with each of the parents, graduating from five nights per fortnight to six nights per fortnight when she commences Year 4, and then graduating to an equal time arrangement once she commences high school in Year 7.
CONCLUSIONS
I have determined that the orders proper to be made in the child’s best interest are that:
(a)The parents have equal shared parental responsibility for the child;
(b)The child live with her mother until she commences Year 7;
(c)Until the child commences Year 4 she spend time with her father as agreed between the parties in writing, and, failing agreement, during school term each Wednesday from the end of school until the start of school on Thursday and each alternate weekend from end of school on Friday until start of school on Monday or 3:30PM on Mondays that fall on public holidays, including any Bank Holiday;
(d)Such time, and in particular the alternate weekends, correspond to weekends when E and F are not in their father’s care, so as to place X, E and F together on alternate weekends in the mother’s household; and
(e)For X to spend time with her father during the school holidays at the end of Terms 1, 2 and 3, from 9:00AM on the second Sunday of the school holidays until 9:00AM on the following Sunday and during the school holidays at the end of Term 4 from 9:00AM on the second Sunday of the school holidays until 9:00AM on the following Sunday and each alternate week thereafter (subject to the special provisions for the parents sharing care of X over the Christmas period itself).
I will make an order for the time the child spends with her father to increase when she commences Year 4 to:
(a)During school term, each alternate week from the end of school on Wednesday until start of school on Friday and in each other alternate week from the end of school on Thursday until start of school on Monday or 3:30PM on any Monday that is a public holiday including any Bank Holiday;
(b)During the school holidays at the end of Terms 1, 2 and 3 for the second half of each school holiday period; and
(c)During the school holidays at the end of Term 4 from 9:00AM on the second Sunday of the school holidays until 9:00AM on the following Sunday and each alternate week thereafter during the school holidays (subject to the special provisions for the parents sharing care of X over the Christmas period itself).
I will make an order providing for the parents to share care of X once she commences Year 7 at high school on a weekly basis during school terms with changeovers occurring at the commencement of school on Monday (or 9:00AM on Monday if not a school day). For the school holidays I will make an order:
(a)For shared care during the school holidays at the end of Terms 1, 2 and 3 being with her mother for the first half of each such school holiday period with the father the second half of each of school holiday period; and
(b)For shared care during the school holidays at the end of Term 4 each year being with her mother for the first half of such school holidays that commence in odd-numbered years and the second half of such holidays commencing in even numbered years and with her father for the first half of such holidays commencing in even numbered years and the second half of such holidays commencing odd-numbered years.
I will make an order that for the purpose of the orders, school holidays are taken to commence at the time the child ceases school attendance at the end of term and to end at the time the child commences school attendance for the new school term. I will leave it to the parents to agree and make arrangements in circumstances of either odd or even numbers of days during school holiday periods.
In relation to the parents’ share in the care of X during special occasions there are, as outlined at the commencement of these Reasons, some differences in the orders sought by the parties as to commencement and conclusion times. The times proposed by the father are more generous to each parent than those proposed by the mother. I find it is proper and in the best interests of X with those interests as the paramount consideration to make the special occasion orders as sought by the father for Easter, Father’s Day, Mother’s Day, the Christmas period, and the child’s and the parent’s birthdays.
In relation to communication with the non-carer parent there is a difference between the orders sought by the parties. This is found in father’s order 14 and the mother’s order 8 – the father seeks there be set a specific time between 10:00AM and 11:00AM on Saturday and the mother’s orders sought refer to “at least once weekly”. I prefer the father’s order is providing more certainty for the child.
There is also a difference in the orders sought by the parties as to changeover arrangements referencing the father’s order 18 and the mother’s order 12. The mother’s proposal for changeover when not occurring at the child’s school is that the parent with whom the child has been spending time, or that parent’s nominee, deliver the child to the other parent’s home at the conclusion of their time. The father’s proposal is that the parent into whose care the child is moving collect the child from the other parent. The father’s proposal is what has sometimes been referred to as the “no arguments” arrangement, in that under the mother’s proposal, if the parent who has had care of the child is late delivering the child to the home of the other parent there is room for disagreement and argument between the parties in that the parent into whose care the child is moving and the child have lost time. Whereas on the father’s proposal, the parent into whose care the child is moving collects the child from the other parent. If the collecting parent is late in arriving that parent has lost time with the child and the other parent has extra time with the child but the collecting parent has caused the circumstances and there is no basis for argument or complaint. Accordingly, I will make the changeover order as proposed by the father.
There is a difference in the overseas travel orders sought by each of the parties. The mother seeks that travel by the child outside the Commonwealth of Australia be only to a Hague Convention Country and the father does not seek that stipulation. The mother seeks that there be 28 days’ notice of intention to travel and that details of destinations and dates be given 28 days prior to departure. The father seeks such notice 42 days prior to departure. I consider that 28 days is adequate time for the non-travelling parent to take relevant action in the Court if he or she considers such is warranted on the basis of the information notified and I will make the order as sought by the mother both as to period of notice and in relation to travel being confined to Hague Convention Countries, unless otherwise agreed between the parties in writing. The father’s case is directed principally toward the child travelling to the United Kingdom with him and the United Kingdom is a Hague Convention Country.
Both parents seek that the father do all things necessary to obtain a United Kingdom passport for X, but the mother seeks that such order provide that “until [X] turns 18 years of age, the father is restrained from using, permitting or allowing [X] to travel on her UK passport.” I see no basis for that proposed injunctive order being added in relation to the child’s United Kingdom passport and no reason in X’s best interest as to why she should not be free to travel on either her Australian or United Kingdom passports. If find there is nothing presented in the evidence to ground the necessity for the orders sought by the mother.
The parties both seek orders in relation to enrolment of the child at S School, T School and U School for the commencement of Year 7, but the mother’s proposed order is worded in such a way that the first preference for actual attendance is S School, then T School, then U School. Whereas, the father’s order simply requires enrolment of the child at each of the schools commencing Year 7 without setting an order of preference. As the child is in Year 2 at the time of making of final orders and as there is insufficient evidence before the Court to establish an order of precedence for the schools, I will make the order as sought by the father.
Finally, both parties seek an order that the parties accompany the child on all domestic and international flights while she is in their respective care unless otherwise agreed between the parties in writing, but the mother seeks that such order be open-ended as to the child’s age whereas the father seeks that the order be “until X is 15 years of age”. Once the child is 15 years of age she is certainly capable of flying unaccompanied on domestic and international flights whilst under the eye of cabin crew and so I will make the order as sought by the father.
In relation to the balance of the orders sought by the parties, they are rather in the same basic terms or proposed by one party and consented to by the other (order 17 and 18 as sought by the mother and order 22 as sought by the father) and I will make all of those orders.
The delay between the conclusion of the final hearing on 27 May 2022 and the making of final orders and publication of these Reasons is entirely at my fault and I apologise to the child, X, to each of the parents and their families and the legal representatives for the delay.
I make the orders as set out at the commencement of these Reasons.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 14 April 2023

File number(s):	SYC 3076 of 2018
Judgment of:	JUDGE MORLEY
Date of judgment:	14 April 2023
Catchwords:	FAMILY LAW – parenting – application for final orders – where Father seeks graduated regime at two yearly intervals culminating in week about time when the child reaches Year 7 – where the Mother seeks to retain the current regime of five nights a fortnight with the Father – where the Court finds it is in the child’s best interests to spend a graduated regime of substantial and significant time with the Father culminating in equal time from the child commencing Year 7
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 65DAB, 65Y.
Cases cited:	Grella & Jamieson [2017] FamCAFC 21
Division:	Division 2 Family Law
Number of paragraphs:	165
Date of hearing:	5, 6 and 27 May 2022
Place:	Sydney
Counsel for the Applicant:	Ms Cantrall
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Respondent:	Mr Williams KC
Solicitor for the Respondent:	Newnhams Solicitors

SYC 3076 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HAGANS Applicant
AND:	MS HAGANS Respondent

order made by:	JUDGE MORLEY
DATE OF ORDER:	14 April 2023