Hand and David

FAMILY COURT OF AUSTRALIA

HAND & DAVID

[2008] FamCA 802

FAMILY LAW – CHILDREN – rebuttal of presumption of equal shared parental responsibility – periods of time to be spent with the father – place of change-over of the child from one parent to the other - at the request of all parties certain parenting orders made on the basis of submissions with reference to evidence without cross-examination

Family Law Act 1975 (Cth) ss 60CA , 60CC, 61DA(1) and 61DA(2)

APPLICANT:

Mr Hand

RESPONDENT:

Ms David

FILE NUMBER:

NCF

1992

2003

DATE DELIVERED:

15 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

13 May 2008;
12, 14 & 15 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

P Schroder

SOLICITOR FOR THE APPLICANT:

Tiyce & Partners, Solicitors

COUNSEL FOR THE RESPONDENT:

A Ladopoulos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

M A Gillies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan, Solicitor

Orders

That the mother have sole parental responsibility for the child … born … July 2002 (“the child”) PROVIDED THAT the mother ensure the father is consulted in relation to any long-term issues that may affect the child AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That by consent except as otherwise provided in these Orders the child live with the mother.
That the child live with the father as follows:
(a) During school term
(i)On the second and sixth weekend of each school term from 4.30pm on Friday until 5.00pm on Sunday with change-overs to take place at T Police Station.
(ii)On the fourth and eighth weekend of each school term from 4.30pm on Friday until 5.00pm on Sunday with change-overs to take place at Newcastle Police Station.
(b) During school holidays
(i)For the school holiday period at the end of Terms 1 and 3 in each year from the conclusion of school on the last day of term until 5.00pm on the second Tuesday in the school holiday period.
(ii)For the school holiday period at the end of Term 2 in each year from the conclusion of school on the last day of term until 5.00pm on the second Saturday in the school holiday period.
(iii)For the school holiday period at the end of Term 4 in 2008 as follows with change-overs to take place at Newcastle Police Station:
A.From 4.00pm on Saturday 20 December 2008 until 5.00pm on the Saturday 27 December 2008.
B.From 4.00pm on Saturday 3 January 2009 until 5.00pm on the Saturday 10 January 2009.
C.From 4.00pm on Saturday 17 January 2009 until 5.00pm on the Saturday 24 January 2009.
(iv)For the school holiday period at the end of Terms 4 in subsequent years:
A.In 2009 and each alternate year thereafter from 4.00pm on 10 January until 4.00pm 24 January with change-overs to take place at Newcastle Police Station.
B.For the school holiday period at the end of Term 4 in 2010 and each alternate year thereafter from 4.00pm on the day after the last school day of the term until 4.00pm three (3) weeks later with change-overs to take place at Newcastle Police Station.
(c)In the event that the child’s birthday fall on a school day from after school to 6.30pm with the father to return the child to the McDonalds Family Restaurant at T.
(d)On each Father’s Day weekend from 4.30pm on Friday until 5.00pm on the following Sunday with change-overs to take place at Newcastle Police Station.
(e)At such other times as may be agreed between the parties in writing.
That in the event that Mother’s Day falls on a weekend that the child is living with the father:
(a)The father’s time with the child is suspended from the conclusion of school on Friday or in the event that such Friday is not a school day then from 4.30pm Friday until 5.00pm Sunday.
(b)The child shall live with the mother during the time referred to in Order 4(a).
(c)By way of make-up time the child shall live with the father on the weekend immediately subsequent to Mother’s Day from the conclusion of school on Friday or in the event that such Friday is not a school day then from 4.30pm Friday until 5.00pm Sunday.
(d)Any provisions in these Orders that would have applied to the father’s time with the child which is suspended pursuant to Order 4(a) shall apply to the make-up time provided for pursuant to Order 4(c).
That in the event that Father’s Day falls on a weekend that the child is living with the mother:
(a)The mother’s time with the child is suspended from the conclusion of school on Friday or in the event that such Friday is not a school day then from 4.30pm Friday until 5.00pm Sunday.
(b)The child shall live with the father during the time referred to in Order 5(a).
(c)By way of make-up time the child shall live with the mother on the weekend immediately after Father’s Day.
(d)Order 6 shall not apply to Order 5.
That for the purposes of the child living with the father on the second and sixth weekend of each school term pursuant to Order 3(a) unless the mother has provided the father with express written permission:
(a)The father is restrained from taking the child in excess of 100 kilometres driving distance from P, near Newcastle, in the State of New South Wales.
(b)The father shall ensure that appropriate overnight accommodation is available for the child such as in a house, apartment, hotel, motel, cabin or a caravan in a caravan park but not in a tent or on a boat.
That at least seven (7) days before each occasion that the child is to live with the father on the second and sixth weekend of each school term pursuant to Order 3(a) the father shall provide to the mother in writing the following information:
(a)The name, address and contact details of the place that the father and child will be staying at for the weekend.
(b)The telephone number on which the child shall be contactable during the course of the weekend.
(c)Written confirmation from the accommodation provider that the father has paid or confirmed accommodation at the nominated place.
That in the event that the father fails to comply with Order 7 then the child’s time with the father is suspended for the weekend in question.
That by consent each party is restrained from:
(a) Physically chastising the child.
(b) Interrogating the child about time spent with the other party.
(c)Denigrating the other party and/or the other party’s family or members of their household to or in the presence or hearing of the child.
That by consent each party shall take all reasonable steps to ensure that the other party is notified as soon as possible of any medical or other emergency concerning the child.
That by consent in the event that either party obtains medical or therapeutic care for the child whilst he is in that party’s care they shall advise the other party in writing of the following details:
(a)The treatment provider including their name, address and telephone number.
(b)Diagnosis.
(c)The date of next consultation with sufficient notice to allow the other party to attend if they desire to do so.
(d)The treatment rendered.
(e)Further treatment required.
(f)Follow up care required.
That by consent both parties shall provide all necessary authorities to allow the party to obtain information from the child’s medical practitioners, therapeutic practitioners or school.
That both parties shall keep the other informed of their residential address, landline telephone number, email address and mobile telephone number and shall advise each other of these details if they have not already done so with seven (7) days of the making of these Orders.
That by consent each party shall ensure that the child attends any scheduled extra-curricular activities that have previously been agreed to between the parties in writing when such activities occur during the time that the child is with either party in the Nelson Bay area.
That the father is restrained from taking the child on any boating activity in open or closed waters until such time as the child attains the age of eight years and is proficient in swimming unless otherwise agreed in writing between the parties.
That between the child’s age of 8 and 11 years the father is restrained from taking the child on any leisure craft, during any periods of time spent with him, outside of the Sydney Heads or other open waters and thereafter shall not do so unless accompanied by another adult.
That in any event the father is restrained from:
(a)Allowing the child to be on any leisure craft that does not have all required standard safety equipment including life jackets.
(b)Allowing the child to be on any leisure craft unless the child is wearing an ASA approved life jacket specified for his height and/or weight.
(c)Taking the child on any dinghy or other small boat to his sailing boat unless travelling directly from the beach or bay at which the said sailing boat is moored at the time until the child is aged 8 years of age or over.
That by consent for the purpose of electronic communication between the child and the parties:
(a)Each party shall have reasonable telephone time with the child as agreed to include as a minimum via telephone or an internet based service each Tuesday and Thursday between the hours of 6.45pm and 7.15pm whilst the child is living with the other party.
(b)Each party shall facilitate the child speaking with the other party at his request by telephone at all reasonable times.
(c)The father shall supply to the mother at his own cost a mobile telephone for the use of the child for such telephone communication and the father shall be responsible for maintaining the mobile telephone account at his own expense.
(d)For the purpose of facilitating telephone communication the mother shall ensure that the child has access to the mobile telephone and that the phone battery is kept sufficiently charged for the calls to be made and received on the mobile telephone.
That by consent within seven (7) days of the making of these Orders the mother shall advise the father in writing of the computer system and software operating system that she owns.
That by consent within seven (7) days of receiving the details set out in Order 19 the father shall provide to the mother at his own expense a web cam, microphone and any necessary software suitable for the mother’s computer and software operating system to enable internet-based communication to take place between the father and the child.
That each party shall advise the other from time to time of the manner in which they will contact the child for the communication periods set out in Order 18(a).
That by consent notwithstanding any other order made herein that the next occasion of Easter holiday period which falls outside a gazetted NSW school holiday period then the child shall spend time with his mother and the time after that (when Easter holiday period falls outside a gazetted NSW school holiday period) the child shall spend time with his father from 6.00pm the Thursday preceding Good Friday to 6.00pm Easter Monday with change-over to take place outside H Police Station.
That the father shall have the care of the child for the forthcoming weekend on the terms that would otherwise apply to the eighth weekend of each school term in view of the disruption to the previous weekend as a result of the hearing having commenced on Friday, 12 September 2008.
That the independent children’s lawyer forthwith provide a sealed copy of the Orders made this day to the Principal of the school attended by the child.
That the solicitor for the father forward an email to the Associate to the Hon. Justice Rose setting out particulars and dates of the father’s outstanding contempt applications and affidavits in support in relation to those contempt applications.
That pursuant to compliance with Order 25 directions will be made in Chambers for the outstanding contempt applications to be listed before a Judicial Registrar for hearing.
That the oral application for costs made on behalf of the mother and independent children’s lawyer for a costs order against the father is dismissed.

NOTATIONS

A.The parties consent to the notation that where a party is required to provide the other party with written notification then the sending of an email will be sufficient to discharge their obligations under these Orders.
B.In relation to the child’s high school the father at the present time maintains that the child attend N School and that these Orders shall not be construed as a Rice v Asplund issue.

IT IS NOTED that publication of this judgment under the pseudonym Hand & David is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF1992 of 2003

MR HAND

Applicant

And

MS DAVID

Respondent

REASONS FOR JUDGMENT

In these proceedings, I have made certain parenting orders by consent as submitted by counsel, the particulars of which are set forth in the document entitled Minute filed in Court today.
As previously observed, that left a number of issues for determination, and again by agreement between counsel for all parties, it was submitted on behalf of all parties that I should hear individual submissions and then determine the issues that remain in contention. A copy of the “Minutes of Proposed Orders” filed in Court and initialled by me (“the Minute”) is attached to the Reasons for Judgment and marked Annexure B. The attached Minute refers to the competing proposals of the parties in relation to certain issues.
I also indicated to counsel for the parties that if I took that approach, which clearly I have allowed to be taken this afternoon, then I would provide brief reasons followed by the particular orders that I have considered should be made in the best interests of the child.
The first issue that arises for determination is whether or not an order should be made that reflects the presumption of equal shared parental responsibility as set forth in s. 61DA, or having regard to the submissions made on behalf of the mother, that she have sole parental responsibility implicitly on the basis of s.61DA(4), namely that it is in the best interests of the child that such an order be made.
This is an issue that falls for determination without there having been findings of fact on matters of disagreement or conflict between the parties in their affidavit evidence. To that extent, it is an unusual situation that I find myself in. Nonetheless, experienced and competent counsel including counsel for the independent children’s lawyer have submitted that I take that approach. Implicitly that would result in significant savings in legal costs and time.
In doing so I can, of course, have regard to matters that are not in contention.
I have determined that I will make an order for sole parental responsibility for the child in favour of the mother, subject to the qualification that in relation to each area of major long-term issue for the child, as defined in s.4 of the Act, the mother consult with the father before making the requisite decision.
Counsel for the independent children’s lawyer submitted that the presumption has not been displaced and should not be displaced by an order because the Minute, reflected in the orders made by consent, demonstrates that not only does the father continue to be an important person and parent in the life of the child, but that the child will have a much involved relationship with him, both in terms of being with him at his home in the Wollongong area and otherwise spending substantial periods of time with him. It was further submitted that given the progress the parties have made in reaching agreement about a number of matters, that should lead me to the view that the presumption of equal shared parental responsibility has not been rebutted.
Those submissions are, in substance, supported by counsel for the father.
Counsel for the father also refers to the unilateral action by the mother in having removed the child from the Wollongong area in 2005 or 2006 to travel to northern New South Wales and Queensland thereby disrupting the meaningful relationship that the child might otherwise have had with the father.
There is much substance in the submissions that counsel for the father has made as well as those for the independent children’s lawyer.
However, the area in which the mother now lives with the child was given validity, so to speak, as a result of the interim parenting orders made by Loughnan JR on 15 September 2006. Those orders were expressed to be “until further order”.
The father did not seek to have those orders reviewed, nor has there been any other order that has varied, set aside or suspended any of the terms of those orders. Consequently, the child has lived in the mother’s care in the area in which she currently resides, notwithstanding the unilateral actions to which I have earlier referred.
However, more importantly, the mother has had the primary care of the child almost for the whole of the period of time since the parties have separated.
The parties have had a conflicted parental relationship whereby constructive communication and decision-making for the benefit of the child has been not only limited, but for a large part of the period of this litigation at least, which has been ongoing now for at least two years, the areas in which they have reached agreement have been swamped by the number of topics and issues upon which they have disagreement.
In addition, the mother has not only carried out the primary care, supervision and upbringing of the child, but has also shouldered by far the greater responsibility for financial support of the child.
As an illustration, the current child support assessment on the father’s disclosed income is $26.00 per month. The father contends that he provides cash to the mother in the range of $10.00 to $12.00 per fortnight. The mother denies that contention. Consequently, the range of child support, depending on whose version of the pattern of support is correct, is between $6.00 per week to $12.00 per week. Those figures demonstrate the paltry financial support provided by the father for a child who is now six years of age.
In addition, there was no submission made that the father can or is likely to be able to substantially increase that level of financial support for the child.
The best interests of the child must extend beyond mere boating activities or the time that a parent might spend with the child no matter how important that is, but the recognition in practical terms of the importance of financial support as well. That responsibility has been almost exclusively carried out by the mother.
With regard to long-term issues affecting the child, I was referred by counsel for the mother to a number of family reports which are in evidence. At least in two of those family reports the father expressed the view, according to the report writer, that he is, and will continue to be, unable to constructively reach agreement with the mother on those issues.
Consequently, in my view and for the reasons given, it is in the child’s best interests that the mother have sole parental responsibility qualified to the extent of the proposed orders.
The next issue arises in terms of paragraphs 3ai and 3aii of the Minute so far as the place of change-over is concerned as the order determining that issue will then necessarily dictate the relevant hours for the conclusion of change-over.

There is a departure from this approach as between the father and the independent children’s lawyer in that the father suggests that the change-over take place at 5.00pm whilst the independent children’s lawyer considered the relevant hour should be 3.00pm as set out in paragraph 3aii.
It was submitted that the orders sought by the mother should be made rather than the contrary orders as sought, because it is necessary to take into account not only her travelling time as well as the father’s for the purpose of change-over, but also the mother’s need to maintain her part-time shift employment being the necessary source for providing financial support for both her and the child given the negligible amount of child support that is being paid by the father. Further, that any disruption to the mother’s part-time shift employment and the financial benefits that flow from it would not be in the child’s best interests.
I consider that there is much weight to the submissions made on behalf of the father that he himself has limited income and is bearing considerable burden in terms of travel expenses by a change-over taking place at H Police Station. Nonetheless, I am persuaded on the balance of probabilities that it is in the child’s best interest for orders to be made as sought by the mother in paragraphs 3aia and 3aiia of the Minute as that will facilitate her employment and the earning of income to support both her and the child for the reasons previously explained, not to mention minimising the travel expenses that the mother would otherwise incur.
I should emphasise at this point that in terms of the restricted income that the father claims to have, that is due to him following on a full-time basis his chosen occupation in the arts. The father does not have supplementary employment to augment what, on the face of it, is a low income. That is a choice that the father has made. It has not been submitted to me that the father has endeavoured to obtain other employment to supplement the income he otherwise earns in his artistic endeavours, or that he is handicapped from obtaining such employment for one reason or another. At times it is simply a question of priorities, and in my view it is in the best interests of the child to maximise the opportunities for the child to be adequately financially supported which, to an overwhelming degree, has been carried out by the mother.
An issue also arises in terms of the place of change-over and the consequential time that is involved so far as school holidays are concerned. Paragraph 3biii deals with the issue of school holidays. There is reference made to commencement and concluding times being 4.00pm.
It is apparent from the notation in the left-hand margin to the Minute and from counsel’s submissions that the parties’ position is that the relevant time should be 5.00pm.
However, the issue remains of whether the change-over is at H Police Station or Newcastle Police Station.
For the reasons I have already given in relation to change-over so far as the periods of time with the father is concerned during school term, are the same reasons that I apply in relation to school holiday period change-overs. It follows that I accept the mother’s position that the place of change-over will be Newcastle Police Station and not H Police Station.
So far as school holidays are concerned, an issue also arises as to the portion of school holidays that should be spent by the child with each of the parties.
The alternative positions are set forth in paragraph 3biv of the Minute.
I have heard extensive submissions by counsel for the parties in relation to the competing considerations. I accept the submissions made on behalf of the mother, the reasoning being that the orders sought by her provide precision and limit the potential for the unfortunate historic disagreements between the parties which have taken place in the past. It should be noted that the period of time will favour one party in an alternate year as opposed to the lesser period in the other year.
Consequently, even on that superficial basis, the parties will have in alternate years periods of greater or lesser time with the child. Therefore, there will not be an advantage in terms of ongoing successive years in which the child spends a greater period of time with one parent as opposed to the other in successive years.
As a result the order will be as is set out in paragraphs 3bivi and 3bivii.
A similar issue in terms of place of change-over arises in relation to Father’s Day.
The respective contentions are summarised on page 4 of the Minute. The reasons previously given by me in terms of the place of change-over as submitted by the mother are the same reasons that I apply in resolving this particular dispute.
Consequently, the order reflects paragraph 3di on page 4 of the Minute.
Paragraph 6 of the Minute reflects the dispute between the parties as to whether or not the father should be restrained from taking the child in excess of 50 kilometres or 100 kilometres driving distance from P near Newcastle in New South Wales.
It is contended by counsel on behalf of the mother that 50 kilometres represents a reasonable driving distance and to extend that to 100 kilometres provides the potential for the child to be driven that distance before returning to school with the consequential effect of the child being tired and unable to implicitly apply himself for the school day.
Counsel for the father in response to my question informed me that the father would not drive 100 kilometres for the purpose of driving the child to school should that occasion arise.
I have not been persuaded that the father should be limited to 50 kilometres. It is clear that 100 kilometres could not mean that he would be able to return with the child to his premises in the Wollongong area. There is nothing of such persuasion that results in me accepting there should be a limit of 50 kilometres.
Consequently, the order is in terms of paragraphs 6a and 6b subject to the phrase “50 kms” being deleted and in lieu “100 kms” inserted on condition that the father not drive with the child for 100 kilometres in the event that the purpose of driving with him is to return him to school following a period of time spent by the child with the father.
An issue also arises in terms of paragraph 7c of the Minute. That issue is whether the father should bear the responsibility of providing written confirmation from an accommodation provider that the father has paid or confirmed accommodation implicitly for himself and the child at a particular nominated place.
It does not seem practical to me to adopt the father’s position, namely that he provide all consents required to enable the mother to make her own enquiries. It is not inconceivable that an accommodation provider may require consent in writing rather than being told of a consent verbally, either by the father or the mother, and may not feel obliged to provide details of accommodation paid for by the father to someone who may be a complete stranger to that accommodation provider. It should be a relatively simple matter in the 21^stcentury for the father to have paid or confirmed accommodation and to provide the requisite receipt or written confirmation of accommodation, which he could receive by email, the internet, or by facsimile transmission, to the mother thereby reducing the areas of further dispute between them.
As a result, I make orders in terms of paragraphs 7a, 7b and 7c of the Minute so far as the latter reflects the position of the mother and the independent children’s lawyer.
I will make an order in terms of paragraph 8 of the Minute as contended by the mother and the independent children’s lawyer. However, it should be noted that at a time when progress is made, it does not seem to facilitate that progress by creating an alternative to resolve the dispute by parties being potentially engaged in further litigation when there is a reasonable alternative as referred to in paragraphs 45 and 46 hereof.
I will make a publication order, as raised with counsel for the parties, which was not opposed. That publication order will be in favour of the independent children’s lawyer for the purpose of furnishing the Principal of the school attended by the child with a sealed copy of the orders. As a result paragraph 8 of the Minute will be able to be implemented with the assurance of the Principal of the school if unfortunately that becomes necessary.
Paragraph 13 of the Minute also illustrates an issue between the parties.
That issue is whether or not the father should provide his residential address. The father opposes those particulars being provided on the basis of what he claims to be past harassment by the mother. The harassment in terms of counsel’s submissions was because she caused information to be given to the police which resulted in apprehended violence proceedings being instituted by the police against the father following allegations by the mother that she in turn had been harassed by the manner in which the father was driving his motor vehicle. I was informed by counsel for the father that ultimately the apprehended violence proceedings were resolved on the basis that the complaints were withdrawn or the proceedings dismissed on undertakings given by the parties without admissions.
The orders which the parties did fortunately agree upon provide for substantial periods of time to be spent by the child with the father, including periods with him implicitly at his home or in the area in which he lives.
I consider it reasonable, so far as these proceedings are concerned, for the mother to know where the child will be cared for, particularly when it is the father’s residential address.
No submission was made which persuades me that even allowing for the apprehended violence proceedings, that there is any substance to a submission that the mother should not be provided with the father’s residential address because she may harass him at that address. It is in the child’s best interests for each party to know where the child resides when in the care and supervision of the other party. One might have thought that would be a given.
As a result, I will make the order as sought in paragraph 13 of the Minute, excluding the words in brackets.
Paragraph 15 of the Minute raises an issue as to whether or not the child should be able to be taken on a boating activity by the father in both open waters as well as closed waters on certain conditions as to the age and swimming prowess of the child, unless otherwise agreed in writing between the parties. The father opposes including the words “closed waters”.
My enquiries of counsel for the mother informed me that the child has not yet learnt to swim properly. I raised that issue with the counsel for the father. Counsel for the father had an opportunity to obtain instructions. His response was not to deny the allegation, but to inform me that on his instructions the child will be properly cared for and provided with the necessary safety equipment. That still begs the issue as to whether or not the child is proficient in swimming at the present time.
I was invited to determine this issue as well as others on submissions. There not being any controversy that the child currently lacks proficiency in swimming, it is my view that the best interests of a child in any case, but particularly this case, is one in which orders are made that minimise risk, rather than create potential for risk being present which may result in a tragic accident for the child, notwithstanding any loving care and attention which may be provided by a parent.
The period of time involved where there will be a restriction in the general scheme of things is small. The child is currently 6 years of age. The limitations only apply until he attains the age of 8 years of age and is proficient in swimming. Hopefully, the parties can agree on the latter issue, and if not, agree on an independent qualified swimming instructor to provide the necessary certificate to them.
Consequently, an order will be made in terms of paragraph 15 of the Minute deleting the words in brackets.
I will make an order in terms of paragraph 16 of the Minute on a similar basis.
Consequently, there is no need for paragraph 17a of the Minute as was recognised in submissions. As a result, there will be orders made in terms of paragraphs 17b, 17c and 17d.
The final issue that arises is in terms of paragraph 23 of the Minute. The father contends that it should be mandatory for the child, arranged by the mother, to attend Tae Kwon Do classes twice a week on the basis that the father be responsible for the cost.
I raised with counsel for the parties that the order as sought is not for a finite period. I also raised the proposition that the child may not want to attend such a class because of a lack of interest, or because of a change of interest from an interest he previously had in order to partake in another sporting activity.
There was no submission made to me which demonstrated that it was imperative in the child’s best interests that he attend such classes, let alone that he must do so twice a week. Presumably, the father has an interest in and considers that the child will benefit from such classes. I do not doubt his sincerity in that regard. There is some evidence in submissions that the child has taken part in such classes arranged by the father. The father will obviously be free to continue to do so when the child is with him. Hopefully, the child will not be compelled to take part in classes even if he shows a lack of interest.
Each parent must be free to some extent to organise the daily care and activities for the child whilst the child is in his or her care respectively.
As I do not find any reasons given to make orders in the mandatory terms set out in paragraph 23 of the Minute, I do not propose to do so as I am not persuaded it is in the child’s best interests to make the order as sought by the father.
I further order by consent that the independent children’s lawyer shall provide a sealed copy of the Orders made this day to the Principal of the school attended by the child.
I further note by consent that the father will have the care of the child for the forthcoming weekend on the terms that would otherwise apply to the eighth weekend of each school term in view of the disruption to the last weekend as a result of the hearing which had commenced on Friday before me.

Oral application for costs

Application is made on behalf of the mother and the independent children’s lawyer for an order for costs against the father reflecting the order that their costs were reserved on 13 May 2008 when the hearing was adjourned by me on the application of the father.
On that day, I reluctantly acceded to the father’s application to adjourn the hearing as he claimed that his previous legal representatives had informed him on the last working day before the commencement of the hearing that they would no longer be representing him and as a consequence he sought an opportunity to seek a grant of legal aid so that he could be legally represented. As a result, I reserved the costs incurred by the mother and the independent children’s lawyer as a consequence of the adjournment which was granted.
The costs sought by the mother and the independent children’s lawyer are each in the sum of $1,744.00 plus GST making a total of $3,488.00 plus GST.
I consider that there is a circumstance which may justify an order for costs being made against the father notwithstanding the general principle that each party bears his or her own costs in proceedings in this jurisdiction.
However, when I proceed to consider the matters that must be considered under s.117(2A) I find that each of the mother and independent children’s lawyer are legally aided, as is the father.
It is clear from the evidence that the mother lives in modest financial circumstances.
The father is an artist. The father’s declared income is minimal having regard to the low-level of child support, the subject of the child support assessment earlier referred in this judgment. I have scant evidence of the father’s financial circumstances, except in relation to a second-hand sailing vessel. Counsel for the father’s instructions are that it is allegedly worth no more than $200.00 or $300.00 on a resale basis.
It is trite law that a court should not make an order which is unlikely to be able to be enforced.
I have determined that the application for costs will be dismissed.
My reasons are that whilst the mother is in modest financial circumstances both she, the father and the independent children’s lawyer are on a grant of legal aid. The father’s financial circumstances, on the limited material before me, are meagre. The prospects of being able to enforce any order against the father are dim.
In those circumstances, the oral application for costs made on behalf of the mother and independent children’s lawyer is dismissed.

Application – contempt/contravention

I note that the father desires to proceed to have his contempt application filed 11 May 2008 determined.
I will make directions for it to be listed for hearing upon my associate receiving an email or facsimile transmission from counsel for the father giving particulars of not only the contempt application relied upon, but the affidavit or affidavits which have been filed and served in support of that application.
I further note that in order to have that application determined in the near future, it will be listed before a Judicial Registrar.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate:

Date: 25 September 2008

Annexure B
[see hard copy with handwritten amendments]

MINUTES OF PROPOSED ORDERS

That the parties have equal shared parental responsibility for “the child” […] born […].7.02.
That, except as otherwise provided in these orders, the child live with the mother.
That, subject to the following orders, the child live with the father as follows:
a.during the school term:
ion the 2^nd and 6^th weekend of each school term:
a.Mother says :From 4.30 pm on Friday until 5:00 pm on Sunday with changeovers to take place at [T] Police Station.
b.Father says: “from the conclusion of school Friday until the commencement of school on the following Monday with changeovers to take place at the child’s school.”
ii on the 4^th and 8^th weekend of each school term:
AMother says: from 4.30 pm on Friday until 5.00 pm on the following Sunday with changeovers to take place at Newcastle Police Station.
B.Father says, “from 6.00 pm Friday until 6.00pm on the following Sunday with changeovers to take place at [H] Police Station”.
b. during school holidays as follows:
i.for the school holiday period at the end of Terms 1 and 3 in each year, from the conclusion of school on the last day of term until 5:00 p.m. on the second Tuesday in the school holiday period;
iifor the school holiday period at the end of Terms 2 in each year, from the conclusion of school on the last day of term until 5:00 p.m. on the second Saturday in the school holiday period
iiifor the school holiday period at the end of Term 4 in 2008, as follows:
a.from 4.00 pm on Saturday 20 December2008 until 4:00 p.m. on the Saturday 27 December 2008;
b.from 4.00 pm on Saturday 3 January 2009 until 4:00 p.m. on the Saturday 10 January 2009; and
c.from 4.00 pm on Saturday 17 January 2009 until 4:00 p.m. on the Saturday 24 January 2009;
ivFor the school holiday period at the end of Terms 4 in subsequent years:
a.Mother says:
i.In 2009 and each alternate year thereafter: from 4:00 pm on 10 January until 4:00 p.m. on 24 January with changeovers to take place at Newcastle Police Station.
ii.for the school holiday period at the end of Term 4 in 2010 and each alternate year thereafter, from 4:00 pm on day after the last school day of the term until 4:00 pm 3 weeks later with changeovers to take place at Newcastle Police Station.
b.Father’s position: For the first half of all Christmas school holidays commencing 2009 and each alternate year thereafter. Changeover at the conclusion of the last day of the school term at the child’s school.
For the 2^nd half of all Christmas school holidays commencing 2008 and each alternate year thereafter.
With all other changeovers at [H] Police Station at 6.00 pm.
c.in the event that the child’s birthday falls on school day from after school to the 6.30 pm with the father to return the child to [T] McDonalds Family Restaurant.
d.on each Fathers’ Day weekend:
i.Mother says: From 4.30 pm on Friday until 5.00 pm on the following Sunday with changeovers to take place at Newcastle Police Station.
ii.Father says, “From 6.00 pm Friday until 6.00pm on the following Sunday with changeovers to take place at [H] Police Station.”
e.at such other times as may be agreed between the parties in writing.

In the event that Mothers’ Day falls on a weekend that the child is living with the father:
a.the father’s time with the child is suspended from the conclusion of school on Friday or, in the event that such Friday is not a school day, from 4:30 pm on Friday until 5:00 pm on Sunday
b.the child shall live with the mother during the time referred to in the previous subparagraph;
c.by way of make up time the child shall live with the father on the weekend immediately subsequent to Mothers’ Day from the conclusion of school on Friday or, in the event that such Friday is not a school day, from 4:30 pm on Friday until 5:00 pm on Sunday; and
d.any provisions in these orders that would have applied to the father’s time with the child which is suspended pursuant to order 4a shall apply to the make up time provided for pursuant to order 4c.
In the event that Fathers’ Day falls on a weekend that the child is living with the mother:
a.the mother’s time with the child is suspended from the conclusion of school on Friday or, in the event that such Friday is not a school day, from 4:30 pm on Friday until 5:00 pm on Sunday;
b.the child shall live with the father during the time referred to in the previous subparagraph;
c.by way of make up time the child shall live with the mother on the weekend immediately after Fathers’ Day, from the conclusion of school on the Friday or, in the event that such Friday is not a school day, from 4:00 pm on Friday until 4:00 pm on Sunday; and
d.Order 6 shall not apply to this order.
For the purposes of the child living with the father on the 2^nd and 6^th weekend of each school term pursuant to Order 3a, unless the mother has provided the father with express written permission:
a.the father is restrained from taking the child in excess of 50kms (father says 100kms) driving distance from the town of [P near Newcastle] in New South Wales; and
b.the father shall ensure that appropriate overnight accommodation is available for the child, such as in a house, apartment, hotel, motel, cabin or a caravan in a caravan park, but not in a tent or on a boat.
At least 7 days before each occasion that the child is to live with the father on the 2^nd and 6^th weekend of each school term, pursuant to Order 3a, the father shall provide to the mother, in writing, the following information:
a.the name, address and contact details of the place that he and the child will be staying at for the weekend;
b.a telephone number on which the child shall be contactable during the course of the weekend; and
c.Mother says: written confirmation from the accommodation provider that the father has paid or confirmed accommodation at the nominated place.
Father says: Father to give all consents required so as to allow the mother to make her own enquiries as to the father’s said accommodation and details as provided herein.
Mother says: In the event that the father fails to comply with order 7, the child’s time with the father is suspended for the weekend in question.
Father says: That liberty be granted on 24 hours notice in relation to Order 7.
Each party is restrained from:
a.physically chastising the child;
b.interrogating the child about time spent with the other party; and
c.denigrating the other party, the other party’s family or members of their household to or in the presence of the child.
That each parent shall take all reasonable steps to ensure that the other parent is notified of any medical or other emergency concerning the child as soon as possible.
In the event that either party obtains medical or therapeutic care for the child whilst he is in that party’s care they shall advise the other party, in writing, of the following details:
a.treatment provider including their name, address and telephone number;
b.diagnosis;
c.date of next consultation, with sufficient notice to allow the other party to attend if they wish to;
d.treatment rendered;
e.further treatment required; and
f.follow up care required.
Both parties shall provide all necessary authorities to allow the other party to obtain information from the child’s medical practitioners, therapeutic practitioners or school.
Both parties shall keep each other informed of their residential address, land line telephone number, email address and mobile telephone number and shall advise each other of these details if they have not already done so within 7 days of the making of these orders. (Father says not to provide residential address.)
Each party shall ensure that the child attends any scheduled extracurricular activities that have previously been agreed to between the parties in writing, when such activities occur during the time that the child is with either party in the [Nelson Bay] area.
The father is restrained from taking the child on any boating activity in open waters or closed waters (father says delete the words “closed waters”) until such time as the child shall attain the age of eight years and the child is proficient in swimming, unless otherwise agreed in writing between the parties.
That between the ages of 8 and 11 years of age of the child, the father is restrained from taking the child on any leisure craft during contact periods outside of the Sydney Heads or other open waters and thereafter shall not do so unless accompanied by another adult.
In any event the father is restrained from:
a.removing any sailing boat from its mooring unless accompanied by another adult when the child is present; (father says delete)
b.allowing the child to be on any leisure craft that does not have all required standard safety equipment including life jackets;
c.allowing the child to be on any leisure craft unless the child is wearing an ASA approved life jacket specified for his height and/or weight; and
d.taking the child on any dinghy or other small boat to his sailing boat unless travelling directly from the beach or bay at which the said sailing boat is moored at the time until the child is aged 8 or over.
Each party shall:
a.Each party shall have reasonable telephone time with [the child], as agreed, to include as a minimum via telephone or an internet based service each Tuesday and Thursday between the hours of 6.45 and 7.15 pm whilst the child is living with the other parent; and
b.facilitate the child speaking with the other parent, at his request, by telephone at all reasonable times.
c.The father shall supply the mother, at his own cost, a mobile telephone for the use of the child for such telephone communication. The father shall be responsible to maintain the mobile telephone account at his expense.
d.For the purpose of facilitating telephone communication the mother shall ensure that:
i.The child has access to the mobile telephone;
ii.That the phone battery is kept sufficiently charged for the calls to be made and received to the mobile phone.
Within 7 days of the making of these orders the mother shall advise the father, in writing, of the computer system and operating system that she owns.
Within 7 days of receiving the details set out in order 19 the father shall provide to the mother, at his expense, with a web cam, microphone and any necessary software, suitable for the mother’s computer and operating system, to enable internet based communication to take place between the father and the child.
Each party shall advise the other, from time to time, of the manner in which they will contact the child for the communication periods set out in order 18a.
Notwithstanding any other order herein that on the next occasion that Easter holiday period falls outside a gazetted NSW School Holiday period the child shall spend time with his mother and the time after that (when Easter holiday falls outside a gazette NSW School holiday period) the child shall spend time with his father from 6.00 pm the Thursday immediately preceding Good Friday to 6.00 pm Easter Monday with changeover outside [H] Police Station.
Father says that the mother shall ensure the child attends the Tae Kwon Do class Monday and Wednesday afternoons after school from 4.30 pm to 6.30 pm and the father shall be responsible for the cost.

NOTATIONS

A.Where a party is required to provide the other party with notification/ information in writing the sending of am email will be sufficient to discharge their obligations under these orders.
B.That in relation to [the child’s] high school the father at the present time is maintaining that [the child] should attend [N School] and that these orders shall not be construed to be a Rice v Asplund issue

[2008] FamCA 802

15 September 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness

Costs

Remedies