Herd and Snyder
[2019] FamCA 660
•18 September 2019
FAMILY COURT OF AUSTRALIA
| HERD & SNYDER | [2019] FamCA 660 |
| FAMILY LAW – CHILDREN – contested residence ‑ continual and unrelenting adult conflict – weight to be applied to wishes expressed by 13 year old boy. |
| Goode & Goode (2006) FLC 93-286 R & R (2000) FLC 93-000 Harrison & Woollard (1995) FLC 92-598 Line & Line (1997) FLC 92-729 | |||
| Family Law Act 1975, ss. 60B, 60CC, 61DA, 65DAA | |||
| APPLICANT: | Ms Herd | ||
| RESPONDENT: | Mr Snyder |
| FILE NUMBER: | BRC | 9876 | of | 2008 |
| DATE DELIVERED: | 18 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 15 and 16 November 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms K Hawdon Forest Glen Lawyers |
| THE RESPONDENT APPEARED IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Cullen |
| INDEPENDENT CHILDREN’S LAWYER: | Ms R Sheehy Rhonda Sheehy & Associates |
orders
That all previous orders relating to the child, X born … 2006 (“the child”) be discharged.
That the child live with the mother.
That the mother have sole parental responsibility in respect of all major long-term issues of the child, save that the mother, prior to making the sole ultimate decision about any such issue shall:
(a) advise the father in writing of the decision intended to be made;
(b) seek the father’s written response in relation thereto within seven (7) days;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
That the mother continue to enrol the child at the Town B State High School, Town B, Queensland and shall not alter the child’s school without order of the Court or the written consent of the father.
That the mother ensure the child continues to consult his school chaplain on a regular basis.
That upon the written undertaking of the father to ensure the child attends his school (other than when the child’s medical condition restricts such attendance), the child spend time and communicate with the father as may be agreed between the parents in writing, and failing agreement as follows:
(a)Each alternate weekend during school terms from the conclusion of school with changeover at school on Thursday to the commencement of school Monday with changeover at school and should the Monday coincide with a public holiday then time shall extend to the commencement of school Tuesday;
Provided however that should such time fall on the mother’s birthday or Mother’s Day then such time be suspended between 9.00am and 7.00pm on those days in each year;
(b)Subject to Orders 8 and 9 herein for one (1) half of each gazetted school holiday period, being the first half in even numbered years and the second half in odd numbered years subject to Order 6(c) hereof;
(c)From 5.00pm Christmas Eve to 2.00pm Christmas Day in even numbered years with no time to occur from 2.00pm Christmas Day to 5.00pm Boxing Day and in odd numbered years from 2.00pm Christmas Day to 5.00pm Boxing Day with no time to occur from 5.00pm Christmas Eve to 2.00pm Christmas Day in those years;
(d)On the child’s birthday should the child not be spending time with the father as per Order 6(a) herein, then from conclusion of school with changeover at school until 6.00pm if a school day and from 1.00pm to 6.00pm if a non-school day;
(e)By telephone each Tuesday and Saturday in the off week during school terms, with the father to initiate the telephone call to the mother’s mobile or land line, between 5.00pm and 5.15pm and with the mother to facilitate the call by permitting the child to answer the telephone call at that time and the child to be afforded privacy; and
(f)In the event the child is unavailable to communicate at the time pursuant to Order 6(e) herein, the telephone time shall occur at the same time on the following evening.
That:
(a)if the father is unwilling or refuses to sign the undertaking referenced to in this Order (which undertaking is to be prepared by the Independent Children’s Lawyer and sent to the father within fourteen (14) days), then in that case the time the child spends with the father shall be each alternate weekend from after school on Friday to before school on Monday, extending to before school Tuesday if Monday is a public holiday; and
(b)if the father signs the said undertaking the Independent Children’s Lawyer shall file same with the Court.
That notwithstanding anything to the contrary, the mother be at liberty to take the child overseas for a period of no longer than twenty eight (28) days, provided that:
(a) she first gives the father fifty six (56) days’ notice of her intention;
(b)she only does so in even numbered years and only during the summer school holiday period; and
(c)the child spends all of the remainder of those summer school holidays with the father and the ensuing Easter school holidays.
That for the purpose of the child being taken overseas by the mother pursuant to Order 8 herein, the father shall ensure the child is delivered to the mother, or remains in her care (as the case may be) at least twenty four (24) hours before the time of the child’s departure from Australia.
That the father is restrained and an injunction issues restraining the father, his servants or agents from removing the child from the Commonwealth of Australia without the prior written consent of the mother or an order of the Court.
That the mother shall ensure that the child communicates via Skype/Facebook/video chat or other such medium with the father during any such period that the child is overseas at all such reasonable times but not less than two (2) occasions per week.
That for the purposes of changeover for school holiday time pursuant to these Orders:
(a)the first half of the school holidays be deemed to commence at 5.00pm on the Friday of the child’s last week of school term and conclude at 5.00pm on the Saturday closest to the midpoint of the school holiday period; and
(b)the second half of the school holidays be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at 5.00pm on the last Sunday prior to the commencement of the next school term.
That all changeovers occur at the child’s school during school terms and all other changeovers occur at the Town C Hospital, Town C adjacent to the main entrance, with the mother and father, or their nominees, to park their respective vehicles within a short walking distance of each other to allow the child to walk between the vehicles provided that neither the mother nor the father alight from their from their respective vehicles other than to assist the child and his belongings in and out of their respective vehicle.
That the mother and father be at liberty to attend all school functions to which parents are invited including but not limited to, sports days, training sessions, lessons, carnivals, sports games, concerts, plays, fetes, parent/teacher meetings, training sessions and the like.
That the parents shall:
(a)permit the child to contact the other parent by telephone at all reasonable times that the child may request;
(b)keep each other informed of his or her email address, postal address and telephone contact number and any change thereof within forty eight (48) hours of such change;
(c)refrain from denigrating each other to, or in the presence of, or within hearing of the child and make every endeavour to ensure their respective partners/spouses do the same;
(d)make every effort to ensure their respective partners/spouses, if applicable, do not interfere with adult issues involving the child;
(e)not interrogate the child about the personal life of the other parent or his/her partner/spouse and respect the other parties’ privacy; and
(f)not expose the child to any adult conflict or emotional harm whatsoever and immediately remove the child from such exposure.
That upon the filing of the father’s undertaking (provided he elects to sign it) and further having made arrangements for the child to have Ms F explain and inform the child of the Orders made, the Independent Children’s Lawyer shall be discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herd & Snyder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 9876 of 2008
| Ms Herd |
Applicant
And
| Mr Snyder |
Respondent
REASONS FOR JUDGMENT
Introduction
X is now 13 years of age and has been the focus of continual and sustained parental conflict since at least the time of his parents’ separation in October 2008.
Despite a number of Court interventions, final Orders and expert reports, the hearing conducted before me on 15 and 16 November 2018, represents hopefully the final opportunity for each parent to be heard on where X should live for the remainder of his infancy – less than five years away.
The reasons which follow attempt to explain to the Applicant mother Ms Herd and the Respondent father Mr Snyder the decision of the Court and why the Orders pronounced are in X’s best interests.
statutory framework
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
Contextual history
Statements of fact hereafter in these Reasons shall be construed as findings of fact.
The mother (now at age 52 years) and the father (now at age 55 years) commenced cohabitation in 2005 and separated in October 2008 when the only child of the relationship X (born in 2006) was only two and a half years of age.
The father, who is a disability pensioner, is the father of two adult children from an earlier relationship. X is the only child of the mother, who works part-time.
Little point is served in these Reasons in detailing the numerous Court Orders, hearings and applications filed in respect of parenting arrangements for X since initial interim Orders were made by Federal Magistrate Spelleken (as she then was) in December 2008, save to observe historically that:
a)X has always lived primarily with the mother, with the benefit of final orders so providing, made on:
i)12 March 2010 (Federal Magistrate Coates);
ii)21 June 2011 (Mushin J); and
iii)12 January 2016 (Judge Spelleken).
b)the history reveals non-compliance with earlier Orders by the father when, for reasons he says were entirely justified and proper, he retained the child during party of 2013, 2014, 2015 and 2016 for short periods. The retention in 2016 (because the father feared, he says, the mother was likely to remove the child from Australia permanently to the mother’s country of birth, the United Kingdom), resulted in the mother’s application for a recovery order being filed (and successful), on 6 December 2016;
c)during the period the child has lived with the mother, there were always orders for the child to essentially spend regular unsupervised time with the father; and
d)the period since separation has revealed continual and unrelenting adult conflict of which I am satisfied the child is well aware exists.
The final Orders made by Judge Spelleken on 12 January 2016 provided as follows:
“1. That all previous orders relating to X born … 2006 (“the child”) shall be discharged.
2. That the child shall live with the mother.
3.That the mother shall have sole parental responsibility in respect of all major long term issues of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a.advise the father in writing of the decision intended to be made;
b.seek the father’s written response in relation thereto within seven (7) days;
c.consider, by reference to the best interests of the child, any such response prior to making any such decision; and
d.advise the father in writing as soon as reasonably practicable of her ultimate decision.
4.That the mother shall be at liberty to have the child attend at the Town D State School, Town D, Queensland.
5.That the father, his servants and agents, be prohibited from and injunctions do issue restraining the father from:
a.Taking the child to, or having he child treated by, any medical or allied health professional, including but not limited to any medical, psychological, psychiatric intervention or counselling SAVE UNLESS the child requires emergency medical attention AND IN WHICH CASE the father shall contact emergency services;
b.Administering any medication or medical intervention WITHOUT FIRST obtaining the written consent of the mother;
c.Taking the child to any Police authority, prescribed welfare authority or allied service providers whether governmental or otherwise WITHOUT FIRST obtaining the written consent of the mother or leave of the Court; and
d.Accessing, viewing, printing, sharing or disseminating any Facebook or online account system held by the mother or her partner/spouse.
6.That the child shall spend time and communicate with the father as may be agreed between the parties in writing, and failing agreement as follows:
a.Each alternate weekend during school terms from the conclusion of school Thursday to the commencement of school Monday and should the Monday coincide with a public holiday then to the commencement of school Tuesday;
b.Subject to order 7 and 8 herein, for one half of each gazetted school holiday period, being the first half in even numbered years and the second half in odd numbered years;
c.From 5:00pm Christmas Eve to 2:00pm Christmas Day in even years with no time to occur from 2:00pm Christmas Day to 5:00pm Boxing Day in those years and from 2:00pm Christmas Day to 5:00pm Boxing Day in odd years with no time to occur from 5:00pm Christmas Eve to 2:00pm Christmas Day in those years;
d.On the child’s birthday should the child not be spending time with the father as per order 6a herein, then from the conclusion of school with changeover at school until 6:00pm if a school day and from 1:00pm to 6:00pm if a non school day; and
e.Telephone communication shall occur, with the father to instigate the telephone call to the mother’s mobile or land line, between 5:00pm and 5:15pm each Tuesday and Saturday in the off week with the mother to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy;
f.In the event the child is unavailable to communicate at the time pursuant to order 6e herein, then telephone time shall occur at the same time on the following evening, provided however that should such time fall on the mother’s birthday or mother’s day then such time shall be suspended between 9:00am and 7:00pm on those days in each year.
7.That notwithstanding anything to the contrary the mother shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a.She first gives the father fifty-six (56) days notice of her intention;
b.She only does so in even years and only during the summer school holiday period; and
c.The child spends all of the remainder of those summer school holidays with the father and all of the following school holiday period with the father.
8.For the purpose of the child being taken overseas by the mother pursuant to order 7 herein, the father shall ensure the child is delivered up to the mother, or remains in her care (as the case may be) at least twenty-four (24) hours before the time of his departure from Australia.
9.For the purposes of changeover for school holiday time pursuant to these orders:
a.The first half of the school holidays shall be deemed to commence at 5:00pm on the Friday of the child’s last week of school term and conclude at 5:00pm on the Saturday closest to the midpoint of the school holiday period; and
b.The second half of the school holidays shall be deemed to commence at 5:00pm on the Saturday closest to the midpoint of the school holiday period and conclude at 5:00pm on the last Sunday prior to the commencement of the next school term.
10.All changeovers shall occur at the child’s school during school hours and all other changeovers shall occur at the Town C Hospital, Town C adjacent to the main entrance, with the mother and father, or their nominees, to park their respective vehicles within a short walking distance of each other to allow the child to walk between the vehicles provided that neither the mother or father alight from their respective vehicles other than to assist the child and his belongings in and out of their respective vehicle.
11.Should either parent choose to communicate with the other on pressing child related issues the parties shall do so using the services of ourchildren.com.au or another similar online service, with the costs of the online service to be borne by each parent, with the parties hereby restrained and an injunction do issue preventing any further email correspondence between them.
12.That the parties shall forthwith each do all things necessary to give effect to order 11 herein.
13.That notwithstanding anything to the contrary, should the child become unwell while he is spending time with the father (including at school), the father shall contact the mother forthwith by telephone (leaving a message if necessary) and the mother shall be at liberty to collect the child immediately.
14.That the parties shall:
a.Permit the child to contact the other parent by telephone at all reasonable times that the child may request;
b.Keep each other informed of his or her address and telephone contact number and any change thereof within forty-eight (48) hours of such change;
c.Refrain from denigrating each other to, or in the presence of , or within hearing of the child and make every endeavour to ensure their respective partners/spouses do the same;
d.Make every effort to ensure their respective partners/spouses do not interfere with adult issues involving the child;
e.Not interrogate the child about the personal life of the other parent or his/her partner/spouse and respective the other parties privacy; and
f.Not expose the child to any adult conflict or emotional harm whatsoever and immediately remove the child from such exposure.
15.That any further application in relation to this matter should be heard, where feasible, before her Honour Judge Spelleken.
16.That the Independent Children’s Lawyer shall be discharged.
THE COURT NOTING:
A. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.”
These Orders seemed to operate well (as I discuss below), although the father did not regularly ensure the child attended school each alternate Friday when the child was in his care under the said final Orders. The issue of X’s education and attendance at school is an important issue, noting that he is now aged 13 years and attends Town B State High School (which is closer to where the mother lives than the home of the father).
When the Federal Circuit Court of Australia ordered, on 12 December 2016, that the child be returned to the mother (allowing her planned trip to the United Kingdom to see her family to proceed), the proceedings were transferred to this Court and subsequently a family report by Social Worker and Family Consultant F was proposed. Ms F interviewed and observed the parents and X on 3 May 2017 and produced a report dated 18 May 2017 (“the family report”).
This report was in fact the second family report prepared by Ms F (the first prepared in June 2015, which itself has been proceeded by reports by another expert in 2009 and 2011).
At the time of the family report, the mother was married to Mr Herd, and had been in that relationship for a number of years. He was, as a result, an important person in X’s life. Mr Herd died suddenly in 2018, and this tragic event had a distressing effect on the mother and, I accept, on X.
On 30 June 2017, Senior Registrar Spink heard submissions from the parties arising from the recommendations made by Ms F in the family report, that the child’s time with the father be reduced to monthly contact visits. The Senior Registrar ordered, on an interim basis, that Order 6(a) made 12 January 2016 be replaced with the following paragraph:
“On the last full weekend of each month from the conclusion of school on Friday to 5.00pm on Sunday during school terms. However if the Friday is a Public Holiday then the time spent will commence from the conclusion of school on Thursday and if the Monday is a Public Holiday the time spent will conclude at 5.00pm on that Monday.”
Although the Senior Registrar granted leave to relist “on short notice should the father fail to return the child to the mother in accordance with the orders of the Court”, the father complied with the Registrar’s Orders and no relisting was sought before the mother proceeded for a Final Hearing before me.
In January 2018, X commenced at Town B State High School where he continued at the time of hearing.
The Court was concerned when listing the matter for a trial to commence on 15 November 2018, that by the time of trial, the family report interviews would have taken place some 18 months earlier. Although further exposing the child to additional interviews raised some concerns, in the end the Court ordered a limited issues family report involving the child only. Ms F conducted further interviews with X on 15 October 2018, and the report (“the wishes report”) was prepared and annexed to the Affidavit of the report writer filed 24 October 2018.
Although the trial completed evidence and submissions on 16 November 2018, the proceedings were re-opened to allow the Court to consider an Application in a Case filed by the father on 23 January 2019 and listed on 7 February 2019. The father sought an order that the child “be allowed to visit upon his terminally ill paternal grandfather who currently lives in Country G”.
By Order made 7 February 2019, the Application was dismissed.
Competing proposals
The Independent Children’s Lawyer (“ICL”), had been involved with this family in the proceedings for some years. At the hearing the ICL was represented by Ms Cullen of Counsel, and although a preliminary position supporting the child continuing to live with the mother was articulated in the case outline filed 8 November 2018, by final submissions, although the thrust of the submissions supported that position, the ICL contended that the situation was so finely balanced that no concluded recommendation could be made as to where X should live. I was disappointed that the ICL, a very experienced practitioner, was unable to determine her position. Importantly, although the ICL noted that the child’s wishes are “clear and strongly held” it was submitted that although weight should be given to those expressed wishes, they could not be given determinative effect.
The Applicant mother was represented by her solicitor advocate, Ms Hawdon, who pressed generally for the orders set out in the mother’s case outline filed 9 November 2018 (annexed to these Reasons as Appendix One), which eventually provided for the child to live with her; for the mother to have sole parental responsibility and for the child to spend time with the father each alternate weekend (Friday to Sunday) and half of all school holidays. The mother changed the frequency of school term time from monthly to fortnightly during her cross examination, indicating she was persuaded to do so by the evidence before the Court – particularly the strong wishes expressed by X to spend more time with the father. If the child was ordered to live with the father (clearly not her preferred option), then the mother expressed some difficultly under cross examination in identifying a proposal for the child’s time with her during school terms. Ultimately, she said she would seek as much time as possible – but was concerned that a change of residence would result in her relationship with X being “completely destroyed”.
The father represented himself at the hearing, but remained respectful and composed during the trial. It was abundantly clear that he felt compelled to continue to press for a change of residence as this is what X has expressed he wants to happen. As a result, the orders he seeks were set out in his case outline filed 13 November 2018 (annexed to these Reasons and marked Appendix Two), and provide essentially for the child to live with him; for the father to have sole parental responsibility and for the child to spend time with the mother each alternate weekend from Friday to Monday and half of all school holidays. The father, in his evidence, no longer pressed for an initial six month monthly only regime. The father seeks orders that permit each parent to travel overseas with the child.
In cross examination, the father was pressed for a position as to the time X should spend with him if the child continues to reside with the mother, and he said each alternative weekend from Thursday to Monday during school terms.
It is clear that X’s views need to be carefully considered in this matter, and as a result I choose to deal with that issue discretely below. I also record that neither party raised credit as a substantial issue in this matter. It is obvious to me that the long and sustained parental conflict has damaged levels of trust and respect each parent holds towards the other parent and that, as a result, when they were criticised, their immediate defence was to lay blame at the feet of the other parent. They see the history through their own personal prism – shaped, it seems to me, by the love they hold for their son. This adult relationship was of short duration and the mix of cultures and parenting styles caused almost immediate issues, which separation nearly 11 years ago has not caused to minimise conflict – rather it has just made it more difficult for X to manage.
child’s wishes
In R and R (2000) FLC 93-000 the Full Court (Nicholson CJ, Finn and Guest JJ) examined some earlier authorities particularly Harrison and Woollard (1995) FLC 92-598 and confirmed at [44] that:
“44. It is quite clear that their Honours were not saying that if the child’s wishes are said to be acted on by the court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial judge, it is apparent that good reason should be shown for doing so.”
X has been, I find, subjected by both parents to discussions about these proceedings and their desires for the outcome of the litigation. Both parents admit as much to differing degrees and neither seems to fully grasp the difficulties this was likely to create for their delightful, yet sensible son.
I find that although he has always lived primarily with the mother, X is well aware that the father has wanted him to live with the father – and the father’s actions in (almost on a yearly basis since 2013) holding the child I find is likely to have made that very point to X. Apart from the child knowing what each parent seeks for him – he is also acutely aware that the parents are in continual conflict. It is only natural for him to try and manage such conflict as best he can, as he became older. As he became older his capacity to manipulate his parents increased. The father acknowledged this trait.
As a result, I find that I must treat the expressed wishes, even to Ms F, with a degree of caution – but they cannot be ignored, as I hope to demonstrate in these Reasons. I do agree with the submission of Counsel for the ICL that the weight attached to the wishes expressed, whilst an important factor, are not solely determinative of where the child should reside. I summarise the evidence of Ms F, as to wishes recorded, as follows:
A. family report
a)At the 3 May 2017 interviews, the child’s wishes are captured at paragraphs 50 to 59. He gave the impression to the report writer that he “felt pressured by his current situation”;
b)He expressed a wish to spend more time with the father “every fortnight for four days, not every weekend”. At paragraph 55 he is recorded as saying it was always “fun” at his father’s home; he gets more time on the computer and he mentioned the animals at his father’s home;
c)X reflected that his “dad is not happy” because he does not get to see enough of him and whilst suggesting week about, he is recorded as saying “I wouldn’t be happy with living with Dad and seeing Mum every second weekend” (paragraph 57);
d)He told Ms F that he would be “very upset” if he did not get to see his father and said that he “wouldn’t manage it well”. Making these comments made him very upset and he began crying (paragraph 59);
e)For the reasons set out in Ms F report, she opined (at paragraph 81) that:
“81. Given the above factors, I am of the view that X’s time with his father needs to be restricted as it is evident to me that this will continue to cause significant emotional harm to X…”.
In further noting that X “already has an established relationship with his father” and that X having no contact with his father “is likely to have a negative impact on him initially”, Ms F recommended a reduction in time from fortnightly (Thursday after school until Monday – the Judge Spelleken regime), to once a month from after school Friday until Sunday at 5.00pm. This recommendation was adopted by Senior Registrar Spink in his Reasons of 30 June 2017.
It follows, that from mid-2017, the child’s time was significantly reduced and this result was contrary to the wishes of X expressing a desire to spend more time. This is an important change to bear in mind when assessing the wishes expressed to Ms F on 15 October 2018 by X. A further factor, the effect of which is difficult to assess, is the sharing by the mother of the contents of the email by the father to the mother of 8 September 2018 (Exhibit 5). The very emotional email is highly accusatory of the mother asserting the mother’s sole mission “has been to destroy the bond between X and the father” and after many further harmful remarks the father concludes by saying:
“As I said I had enough. I am out of this mess. I cannot do this to X any longer.
I honestly believe it will be better [for] X if I break any and all contact with him – for now. X can come look me up when he sees the light, same as Vicki and Jodie has.
I will not call X again. It is awful what X has to endure because of you…
This school holidays will be the last time I spend with X.
When X gets back to you you can do whatever you want to, I don’t care and don’t give a fuck. Change his school – again, move away, go overseas fuck I don’t care. GO GO GO. I will not contact X again and I will not see X again, until X can choose to contact me again later in life.”
The mother, in her trial Affidavit at paragraph 81 refers to this letter, saying she believed the father was playing “mind games” with her. However, it was only during cross examination that the mother acknowledged she allowed X to read this email. Such actions by the mother were frankly deplorable. It is not possible to be sure how long before the interviews with Ms F X read the letter. It is not referred to in her report and, when under cross examination (and shown the email of 8 September 2018) she was told X had read the letter, she was rightfully condemning of the mother’s actions and said that X’s wishes as expressed to her could have been shaped by him believing that the father might not see him in the future.
For all these reasons, when now summarising the wishes report, I am conscious of the circumstances in which they were expressed to Ms F.
B. wishes report
a)The child told Ms F that he was aware the information he told her would be written in a report “that both of his parents would be able to read”, as would the Judge;
b)X indicated he thought Town B State High School was a “pretty good school” and preferred English and Humanities to Science and Maths. He indicated he has experienced some bullying (which he deals with). He confirmed “it had been better not missing school” and it was good to chat to the school chaplain;
c)At paragraph 10 he discussed his willingness to change schools if he lived with his father. At paragraph 11 X is recorded as telling Ms F “of his own accord that he would rather live with his father” describing to do so in positive terms, saying it was “better” at his father’s home and that he “love[d] the animals”. He also mentioned he would get more pocket money at his father’s home;
d)In a sharp change since the wishes expressed for the family report, X said there was “nothing good” about his current parenting arrangements. X made comments which revealed that he was aware of the sadness the death of Andrew Herd had caused his mother although he found his mother’s despondency as “annoying”;
e)Consistent with earlier comments for the family report, X (at paragraph 15) said that the time he spent with his father was “not long enough, it’s fun, but it’s not long enough time there” and further said his life could be “really bad, I don’t get to see Dad” as he feels “closest” to his father because they both like farms and dogs;
f)At paragraph 17, he expanded on why he does not like the current parenting arrangements (which were one weekend a month) and confirmed his discussions of arrangements with both parents and what he felt were their views;
g)At paragraphs 24 to 26, Ms F provides her opinion as to why X has expressed largely positive views of his father and now is unable to say anything positive about his mother, including:
i)he has a strong bond and connection with his father;
ii)he has possibly been influenced by the conflict between the parties and is seeking to share views that align with his father to please his father;
iii)his views are likely to be influenced by recent events and experiences; focussing on material aspects like pocket money etc.;
iv)the child having to deal with the death of Mr Herd said the mother’s grieving has possibly “significantly impacted on his views at this time”; and
v)X’s time with the father currently only occurs during recreation time where the routines and commitments of school and sport are not required.
Overall, Ms F concluded, and I accept, that X’s “views have continued to be influenced by his experiences of his parents’ conflict and his awareness of their views about each other, the Court process and X’s parenting arrangements”.
I find these possible influences – all likely in my view of the evidence – make it difficult for the Court to merely adopt X’s recently expressed wish to “live with his father”. Furthermore, apart from X expressing less than a mature understanding of the quality of parenting he has received from his mother (at times under substantial stressors, many caused by the father), his words give me no confidence he understands the significance of a change of residence, change of school, change of parenting style and the impact on him of being removed from the parent who nurtured him consistently since separation. I do not “reject” his wishes – rather I put his wishes in the context of the many influences and pressures (some overt and others perhaps unintentional) that are placed upon this boy and the other factors the Act requires to be considered.
Primary considerations
I shall now consider the competing proposals within the matrix of the relevant primary and additional considerations. In so doing, I rely upon but do not always repeat, earlier findings I have made in these Reasons.
I find it is of benefit to X that he have a meaningful relationship with both parents. Each parent’s proposals for the time X should spend with the other parent (if he should live with them), demonstrates an appreciation of the benefit to X that only regular time can preserve.
The Court is required by s 60CC(2)(b) to give greater weight to the need to protect X from harm and in this regard I find, on all the evidence, that:
a)although the father asserts that the actions of the mother in “limiting” his time reflects an undermining of his relationship with X and a lack of support of that relationship, I do not agree. Since separation, when X was but two and a half years of age, the mother has been the primary carer and has had every opportunity to damage the child’s relationship with the father, if she had wished to. Whilst the behaviour in showing the email of 8 September 2018 to X is troubling, seen in the context of the father’s actions in the past of withholding the child and in view of the extremely vitriolic comments the father made in the email (noting it was sent just six weeks before the trial was to commence), I am prepared to regard the mother’s actions as inappropriate but a defensive aberration. The father has continued to agitate for changes of arrangements and, as the child has grown older, the child has at times become his father’s advocate. In my view, the mother has demonstrated a greater capacity to disguise her negative feelings about the father, than the father has been able to demonstrate;
b)I agree with the assessment of Ms F in her family report that the father, who it is not doubted loves his son dearly, has not been able to control his own needs and separate them from the child’s best interests. Such behaviour not only has included the over involvement of the child in discussions about this case (of which the mother is also guilty), but also:
i)his withholding of the child, in particular in an attempt to prevent the mother travelling with the child to the United Kingdom in December 2016 – without a reasonable basis and quickly rectified by the Court’s Orders of 12 December 2016;
ii)the failure by the father during 2016 and part of 2017, to ensure the child attended school. On the evidence I am not satisfied this was supported by the school, as the father suggests. There is little evidence that the child, on these alternate Fridays, undertook a full day of similar tuition. More likely, as Ms F says, it had more to do with the father wanting to spend more time with his son and to reduce inconvenience to him associated with travel to school.
c)I share the mother’s expressed concern that if X was to live with the father there is a probability that the father would not genuinely support X’s relationship with the mother. I am not prepared to find this would be with vindictive intent (so that she feels the same sense of loss he has felt over the last eight years), but more because he would allow X to follow a lifestyle that did not see the mother as adding any value to his life. Clearly the boy enjoys the farm and many of the outdoor male orientated activities the father has time (without employment) to engage in. He would not be at any risk of physical harm, but emotionally I believe the father’s inability to contain his enmity for the mother would likely result in X developing some maladaptive behaviours, as Ms F suggests. A balance is required, and I have no confidence that the father can achieve this and although he says he can (which is untested as a primary carer), the mother has demonstrated a capacity to do so;
d)After this amount of time, there are no orders the Court can make to reduce the conflict between the parties – other than to remove one of the parents permanently from the child’s life – which neither parent suggests and which I find would be contrary to X’s best interests. X’s capacity to think manipulatively is enhanced if the parties do not control their negative behaviour. The parents, by not engaging physically (as neither seeks), should be able at their ages to restrain themselves from exhibiting in the presence of the child some of their worst past behaviour. As X approaches the final years of secondary schooling (he should start grade nine next year) surely they can give him that level of peace and stability.
Additional considerations
I have already dealt with discretely an analysis of X’s wishes. I do not give them determinative weight. As the Full Court in R & R (supra) identified, it would seem generally desirable that authors of family reports try and ascertain (if the child permits some exploration) how the child might respond if the Court were not to follow his expressed wishes. Ms F did not do so, but my assessment on all the evidence is that X would accept that he continue to live with the mother, provided he spent regular time with his father AND the father showed he accepted the result. I am not certain the father can do so.
The child’s strongest relationships are with his parents and they must be preserved. I am prepared to accept he has some peer relationships but the evidence makes it difficult to determine the strength of these relationships, which generally become more important for teenagers/adolescents.
The father asserts that the mother has prevented regular telephone time. The mother disputes this however, it seems clear the child now has his own phone and is also able to communicate with the father via email. Although for this couple, with the past history, unrestricted communication could become problematic, so would seeking to enforce some orders for prescribed communication, in the future.
Neither party has significant income or assets available to them. The “farm” the father occupies is a rental property. The mother, at the time of the hearing, occupied a property which she owned. However the father’s limited income from his disability benefit does not permit him to pay other than minimal child support. This is not meant to be a criticism, just a statement of fact.
The practical effects of the child moving between the homes of the parents and the school and the homes of each parent are shaped by:
a)the limited financial resources of the parties;
b)the distances involved, which although I find them not insurmountable (for example the distance between the mother’s home at Town D and the father’s home at Town E is only approximately 50km), the time in travel, I accept with traffic, can be more than one hour. This should mean the parents try to accommodate the travel as best they can to assist X. The mother, for example, proposes changeovers at Town C. The Court heard evidence about travel time for other schools if a change from Town B State High School (to which X catches a bus) was to occur.
I rely upon earlier findings as to the parents’ capacity to meet the needs of X, both physical and emotional. I do not regard the mother’s slightly less availability, because of part time nursing duties, to be a significant factor – noting, to the parents’ credit, on some occasions the father has been able to assist the mother when a work commitment imposed a restriction on her. I also note that the father says his adult daughter will assist him, although no evidence from that daughter was offered to the Court.
I have already expressed some lingering concerns about the father’s parental attitude, which I do not (nor did Ms F) find of concern with the mother. Even if I allow for some recognition of the father’s sense of injustice in being unable to share, if not have majority care of X, some of his past behaviour is concerning. I regard this as a significant impediment to supporting the father’s application for X to live with him, notwithstanding the child’s expressed wishes.
No family violence orders are in existence.
Ms F in her family report (at paragraph 82) opined as to the negative effect on X and the parents (including emotionally and financially), if Court proceedings are again initiated in the future. Because the orders I will make include an order that X live with the mother, I also hold concerns that the father might find it difficult to accept the decision – in particular because of the wishes expressed by X which align with his proposal. To the extent that s60CC(3)(l) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings”, it is my hope (perhaps optimistic) that my final orders will achieve that result. I could not discount X “voting with his feet” in the future, particularly if encouraged (or if not actively discouraged) by the father to do so. At least any further proceedings, when orders for variation are to be contemplated, will have a foundation of findings in these Reasons for Judgment to assist.
Parental responsibility
The lack of effective communication between the parents is problematic as far as sharing parental responsibility for major long term issues is concerned. The parents and the ICL agree – with each of them seeking an order for sole parental responsibility to the parent with whom X shall live.
Perhaps fortunately, the only major issue that has arisen to date is the child’s schooling. He is essentially a healthy child and faith issues do not appear contentious. It is a pity that the parents’ lack of respect and aggressive communication style (which the text messages produced reveal at times to be bordering on “childish”), forces the Court to select one parent to have sole parental responsibility. However, it is in the best interests of the child that I do so, but also to require the residential parent to consult with the other parent before exercising the power (save in an emergency). The issue of overseas travel is contentious and is dealt with separately below.
Where should the child X live
I have decided it is in X’s best interests that he continue to reside with his mother because she offers not only consistency of care, but also has demonstrated a better attitude to the child’s education and, on my assessment, will continue to comply with orders of the Court and genuinely will support the continued strong relationship between the child and the father.
The mother should not underestimate some of the challenges which lie ahead for X – especially if he believes (or is lead to believe by the father) that his wishes have been ignored and not respected. Hopefully allowing for Ms F to explain the Orders to him and some counselling for the child may assist.
In making this decision I indicate, for completeness, that with an order for sole parental responsibility it is not mandated that the Court actually consider an equal time order. Simply however, these parties living where they do, and communicating as poorly as they do, an equal time arrangement is not in the best interests of X, nor is it reasonably practicable.
If the Court could be satisfied that the father would ensure that X attended his school, then alternate weekends from Thursday after school until before school Monday (or before school Tuesday if Monday is a public holiday) would:
c)provide the child with more time with the father; and
d)allow the father to get involved with the child’s school and his school life more easily.
Although not ideal, the travel time does make it difficult – but far from impossible. Children in rural Australian communities often have long journeys to school. The father’s inability – I would find at times actual reluctance – to ensure X attended school is a major concern. This factor needs to be weighed against the reduction in time the child will spend with the father if weekends each alternate week were limited to Friday after school to Monday before school or Sunday evening.
In dealing with this dilemma (and frankly in the absence of any helpful submissions on the issue), the Court contemplated whether a regime of two out of three weekends with the father might be better. However this has the possibility of characterising the father’s time as merely recreational.
In the end analysis, the Court has decided that provided the father provides an undertaking in writing (prepared by the ICL) that he will ensure the child attends school (save for illness confirmed by a health professional) when X is in his care, the better arrangement is each alternate weekend from after school Thursday to before school Monday, extending to before school Tuesday if Monday is a public holiday or pupil free day. I intend to so order.
Save for the issue of overseas travel, most of the other orders I make were not seriously contentious but, I confirm that:
a)the ICL’s order referenced the use of “Our Children, Australia website or similar” as the forum for email exchanges. I do not propose to so order. The parents will be required to provide each other with an email address and use those email addresses;
b)I will not make proposed order 13 as such “self-executing” orders do not allow for the circumstances at the time to be considered. On the basis of the father providing the written undertaking, a failure by the father (or for that matter the mother), to comply with the Orders made or undertakings given, should be the subject of enforcement in the usual way;
c)I regard proposed order 17 as problematic. If the father has the child and the child becomes “unwell”, the father should deal with such condition (including if necessary emergency medical intervention), as is in the best interests of X. I am satisfied the father is capable of doing so, and if that requires the child being returned to the mother early, then he should do so. A parent must learn to manage a sick child;
d)I do not find that an evidentiary foundation has been established to justify the imposition of the restrictions for the remainder of the child’s infancy, proposed by order 6 of the ICL’s draft minute. I have confidence that if X needs urgent medical assistance the father will get him to a doctor. The order for sole parental responsibility means the mother alone has the power and responsibility to engage X in non-urgent medical or therapeutic support, but much seek the father’s consent if it related to a long term issue;
e)I adopt the mother and ICL’s proposal that changeovers that do not occur at X’s school, should occur at the Town C Hospital adjacent to the main entrance;
f)the mother’s proposed order 4 duplicates in some aspects, proposed orders 6(a) to (d) contended for by the ICL. I have already indicated why I will not make such orders, and that reasoning further persuades me that the mother’s proposed orders 4(e) and (f) should not be made;
g)as already indicated, and consistent with the evidence the mother gave at the hearing that X now has his own phone, I do not intend to prescribe specific times for telephone contact between the child and either parent;
h)for the same reasons I gave for not making the ICL’s proposed order 13, I will not make the similar order proposed by the mother (order 16);
i)I prefer the order for X to travel overseas with the mother proposed by the mother (and in similar terms by the ICL), rather than proposed order 7 of the father’s proposed minute of order;
j)I do not propose to order that the parents not “block” the other parent on their mobile phone, although other than in an emergency, the ability to exchange messages by either text message or email is preferred. I do not wish to make an order more likely to lead to the institution of further proceedings; and
k)upon the filing of the father’s undertaking and further having made arrangements to have Ms F explain and inform X of the Orders made, the ICL shall be discharged.
Overseas travel
The mother was born in the United Kingdom; has family there and has regularly travelled to the United Kingdom with X. The child expressed to Ms F (for the family report interviews) that he enjoyed his trip to see family in December 2016.
The mother has always returned and I hold no concerns if the child travels with her, that he will return.
The father was born in Country G. It is unclear what family he now has in that country (his father having since passed away), and what is apparent is that X has not visited the father’s country of birth. I well understand the father’s desire to show Country G to his son. It is part of his cultural heritage. In principle, there should be no objection reasonably raised preventing such travel, however in this case the mother has concerns that the child, if allowed to leave with the father, would not return.
The father has no property in Australia but of course his adult children live here. His “ties” extended to his expressed desire to continue to live in Australia. The father has limited means, and it is far from certain that he can afford both return airfares for himself and X and accommodation in Country G. Consistent with authorities like Line & Line (1997) FLC 92-729, it may be necessary to consider whether a security/bond in Australia is necessary. There is some doubt on the current evidence that if ordered, the father has the ability to offer security for his promise to return X to Australia.
For these reasons, I am not prepared to make a general order that the father be permitted to take X out of Australia. I do acknowledge that Country G is a signatory to the relevant Hague Convention. The effect of making no such order is that if the father wishes to travel overseas with X, he will need to make an application to do so, supported by the usual evidence necessary to support such travel – indicating the ability to provide security if required by the Court at that time.
In all respects, I find the orders which appear at the commencement of these Reasons are in the best interests of X at this time.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 September 2019.
Associate:
Date: 18 September 2019
APPENDIX ONE
That all previous orders relating to X born … 2006 (“the child”) shall be discharged.
That the child shall live with the mother.
That the mother shall have sole parental responsibility in respect of all major long term issues of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a)advise the father in writing of the decision intended to be made via the Out Children website;
b)seek the father’s written response in relation thereto within seven (7) days;
c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
d)advise the father in writing as soon as reasonably practicable of her ultimate decision via the Our Children website.
That the father, his servants and agents be prohibited from and injunctions do issue restraining the father from:
a)taking the child to, or having the child treated by, any medical or allied health professional, including but not limited to any medical, psychological, psychiatric intervention or counselling save unless the child requires emergency medical attention and in which case the father shall contact emergency services;
b)administering any medication or medical intervention without first obtaining the written consent of the mother;
c)taking the child to any police authority, prescribed welfare authority or allied service providers whether governmental otherwise without first obtaining the written consent of the mother or leave of the Court; and
d)accessing, viewing, printing, sharing or disseminating any Facebook or online account system held by the mother or her partner/spouse; and
e)attending the mother’s workplace (other than to effect changeover in accordance with Order 11 herein); and
f)making complaint to the mother’s professional regulatory body.
That the child shall spend time and communicate with the father as may be agreed between the parties in writing, and failing agreement as follows:
a)on the last full weekend of each month from the conclusion of school on Friday to 5.00pm on Sunday during school terms. However if the Friday is a public holiday then the time spent will commence from the conclusion of school on Thursday and if the Monday is a public holiday the time spent will conclude at 5.00pm on that Monday;
b)subject to Order 6 and 7 herein, for one half of each gazetted school holiday period, being the second half in even numbered years and the first half in odd numbered years;
c)subject to Order 6 and 7 herein, from 5.00pm Christmas Eve to 2.00pm Christmas Day in odd numbered years with no time to occur from 2.00pm Christmas Day to 5.00pm Boxing Day in those years and from 2.00pm Christmas Day to 5.00pm Boxing Day in even numbered years with no time to occur from 5.00pm Christmas Eve to 2.00pm Christmas Day in those years;
d)on the child’s birthday should the child not be spending time with the father as per Order 5(a) herein, then from the conclusion of school with changeover at school until 6.00pm if a school day and from 1.00pm to 6.00pm if a non-school day; and
e)telephone communication shall occur, with the father to instigate the telephone call to the child’s mobile phone, between 5.00pm and 6.00pm each Tuesday and Saturday in the off week with the mother to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy during the conversation;
f)in the event the child is unavailable to communicate at the time pursuant to Order 5(e) herein, then telephone time shall occur at the same time on the following evening, provided however that should such time fall on the mother’s birthday or mother’s day then the time shall be suspended between 9.00am and 7.00pm on those days in each year.
That notwithstanding anything to the contrary the mother shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a)she first gives the father fifty-six (56) day’s notice of her intention;
b)she only does so in even years and only during the summer school holiday period; and
c)the child spends all of the remainder of those summer school holidays with the father and all of the following school holiday period with the father.
For the purpose of the child being taken overseas by the mother pursuant to Order 6 herein. the father shall ensure the child is delivered up to the mother, or remains in her care (as the case may be) at least seven (7) days before the time of his departure from Australia.
That the child will spend time with each of his parents on Mother’s Day and Father’s Day as follows:
a)with the father on Father’s Day from 5.00pm Saturday to 5.00pm Sunday;
b)with the mother on Mother’s Day from 5.00pm Saturday to 5.00pm Sunday.
That the child communicate by telephone with the mother when he is in the father’s care during the school holiday time each Tuesday and Saturday evening with the call to be placed by the mother between 5.00pm and 6.00pm and for the father to ensure the child is available to take the call and has privacy during the phone call.
For the purposes of changeover for school holiday time pursuant to these Orders:
a)the first half of the school holidays shall be deemed to commence at 5.00pm on the Friday of the child’s last week of school term and conclude at 5.00pm on the Saturday closest to the midpoint of the school holiday period; and
b)the second half of the school holidays shall be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at 5.00pm on the last Sunday prior to the commencement of the next school term.
All changeovers shall occur at the child’s school during school hours and all other changeovers shall occur at Town C Hospital, Town C adjacent to the main entrance, with the mother and father, or their nominees, to park their respective vehicles within a short walking distance of each other to allow the child to walk between the vehicles provided that neither the mother or father alight from their respective vehicles other than to assist the child and his belongings in and out of their respective vehicle.
Should either parent choose to communicate with the other on pressing child related issues the parties shall do so using the services of ourchildren.com.au with the costs of the online service to be borne by each parent, with the parties hereby restrained and an injunction do issue preventing any further email correspondence between them.
That the parties shall forthwith each do all things necessary to give effect to Order 12 herein.
That notwithstanding anything to the contrary, should the child become unwell while he is spending time with the father (including at school), the father shall contact the mother forthwith by telephone (leaving a message if necessary) and the mother shall be at liberty to collect the child immediately.
That the parties shall:
a)permit the child to contact the other parent by telephone at all reasonable times that the child may request;
b)keep each other informed of his or her address and telephone contact number and any change thereof within forty-eight (48) hours of such change;
c)communicate only using the Our Children Website, except in the case of an emergency;
d)refrain from denigrating each other to, or in the presence of, or within hearing of the child and make every endeavour to ensure their respective partners/spouses do the same;
e)make every effort to ensure their respective partners/spouses do not interfere with adult issues involving the child;
f)not interrogate the child about the personal life of the other parent or his/her partner/spouse and respective the other parties privacy; and
g)not expose the child to any adult conflict or emotional harm whatsoever and immediately remove the child from such exposure.
That in the event the father fails to return the child to the mother in accordance with these Orders, then upon the mother filing and serving an Affidavit, a Recovery Order issue for the child and thereafter Orders 5, 6(c) and 8 herein be discharged and thereafter the father spend supervised time with the child at a Contact Centre each fortnight with the father to bear the costs of the Centre.
SUMMARY OF ALTERNATE PROPOSAL SHOULD THE COURT PLACE THE CHILD IN THE PRIMARY CARE OF THE FATHER
The mother would continue to seek the Orders above including the various injunctions, holiday time, special days and place of changeover etc. The mother would seek the following variations:
That the mother have sole parental responsibility for health and educational matters and equal shared parental responsibility for other matters.
That the child spend time with the mother from after school Thursday to before school Monday for three (3) out of four (4) weekends.
APPENDIX TWO
That all previous orders relating to X born … 2006 (“the child”) shall be discharged.
That the child shall live with the father.
That the father shall have sole parental responsibility in respect of all major long term issues of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
a)advise the mother in writing of the decision intended to be made;
b)seek the mother’s written response in relation thereto within seven (7) days;
c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
d)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
That the child attends at the state high school district the father is residing in.
That the father will retain the child’s passport in his possession and that the father will not unreasonably refuse to supply the mother with such in the event that the mother is to travel overseas with the child.
That the child shall spend time and communicate with the mother as may be agreed between the parties in writing, and failing agreement as follows:
a)the first 6 visits, from the date of this order, to the mother to be once a month on the last weekend of the month from 9.00am Saturday morning until 5.00pm Sunday afternoon. The first such visit to be on 29 and 30 December 2018;
b)from after school 29 June 2019 until 5.00pm 6 July 2019 the child will spend the first half of the school holiday with the mother;
c)commencing 19 July 2019, every second weekend during school terms from the conclusion of school Friday to the commencement of school Monday. Should the Friday coincide with a public holiday/pupil free fay then on the last full school day prior to this Friday. If the Monday coincides with a public holiday/pupil free day then to the commencement of the next school day after his weekend with the mother;
d)for half the gazetted school holiday periods. Being the first half in odd numbered years and the second half in even numbered years;
e)telephone communication shall occur, with the mother to instigate the telephone call to the father’s mobile (or mobile nominated by the father), between 5.00pm and 5.15pm each Tuesday and Saturday with the Father to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy;
f)in the event the child is unavailable to communicate at the time pursuant to Order 6(e) herein, then telephone time shall occur at the same time on the following evening, provided however that should such time fall on the father’s birthday or Father’s Day then such time shall be suspended between 9.00am and 7.00pm on those days in each year.
That notwithstanding anything to the contrary the mother shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a)she first gives the father fifty-six (56) days notice of her intention;
b)she provides a full and complete travel itinerary to the father, including communication method, days and times, at least 21 days prior to traveling;
c)she only does so in odd years and only during the summer school holiday period when the child is in her care;
d)the child travel only to or through a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
e)there are no travel restrictions or warnings by the Department of Foreign Affairs for the country which the child is travelling to or through, that are “Do not travel” or “Reconsider your plans to travel” or to that effect;
f)upon satisfying the above conditions the father will provide the mother with the child’s passport;
g)upon her return to Australia the mother will immediately entrust the child’s passport into the father’s care;
That notwithstanding anything to the contrary the father shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a)he first gives the mother fifty-six (56) days notice of his intention;
b)he provides a full and complete travel itinerary to the mother, including communication method, days and times, at least twenty-one (21) days prior to travelling;
c)he only does so in even numbered years and only during the summer school holiday period when the child is in his care;
d)the child travel only to or through a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
e)there are no travel restrictions or warnings by the Department of Foreign Affairs for the country which the child is travelling to or through, that are “Do not travel” or “Reconsider your plans to travel to” or to that effect;
For the purposes of changeover for school holiday time pursuant to these Orders:
a)the first half of the school holidays shall be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at the commencement of the first school day for the next school term;
b)the second half of the school holidays shall be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at the commencement of the first school day for the next school term.
During the school holiday period when the child spends time with the mother, telephone communication between the father and the child shall occur, with the father to instigate the telephone call to the mother’s mobile (or mobile nominated by the mother), between 5.00pm and 5.15pm each Tuesday and Saturday with the mother to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy.
All changeovers shall occur at the child’s school during school hours and all other changeovers shall occur at the Town E Cafe, Town E Street, Town E, Queensland with the mother and father, or their nominees, to park their vehicles within a short walking distance of each other to allow the child to walk between the vehicles provided that neither the mother or father alight from their respective vehicles other than to assist the child and his belongings in and out of their respective vehicle.
Should either parent choose to communicate with the other on pressing child related issues the parties shall do so via email correspondence between them.
Neither parent is allowed to block the other parent on their mobile phone.
That notwithstanding anything to the contrary, should the child become unwell while he is spending time with the mother, the mother shall contact the father forthwith by telephone (leaving a message if necessary) immediately. The father be at liberty to immediately remove the child from the mother’s care.
That the parties shall:
a)permit the child to contact the other parent by telephone at all reasonable times that the child may request;
b)keep each other informed of his or her address, email and telephone contact number and any change thereof within forty-eight (48) hours of such change;
c)refrain from denigrating each other to, or in the presence of, or within hearing of the child and make every endeavour to ensure their respective partners/spouses do the same;
d)make every effort to ensure their respective partners/spouses do not interfere with adult issues involving the child;
e)not interrogate the child about the personal life of the other parent or his/her partner/spouse and respective the other parties privacy; and
f)not expose the child to any adult conflict or emotional harm whatsoever and immediately remove the child from such exposure.
Alternate Parenting Orders
That all previous orders relating to X born … 2006 (“the child”) shall be discharged.
That the child shall live with the father.
That the father shall have sole parental responsibility in respect of all major long term issues of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
a)advise the mother in writing of the decision intended to be made;
b)seek the mother’s written response in relation thereto within seven (7) days;
c)consider, by reference to the best interests of the child, any such response prior to making any such decision; and
d)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
That the child attends at the state high school district the father is residing in.
That the father will retain the child’s passport in his possession and that the father will not unreasonably refuse to supply the mother with such in the event that the mother is to travel overseas with the child.
That the child shall spend time and communicate with the mother as may be agreed between the parties in writing, and failing agreement as follows:
a)for the remainder of 2018 the child to spend no time with the mother;
b)from 5.00pm 5 January 2019 until 5.00pm 26 January 2019 with the mother.
c)from 1 February 2019 every second weekend during school terms from the conclusion of school Friday to the commencement of school Monday with the mother. Should the Friday coincide with a public holiday/pupil free day then to the commencement of the next school day after his weekend with the mother;
d)for half of the gazetted school holiday periods. Being the first half in odd numbered years and the second half during even numbered years;
e)telephone communication shall occur, with the mother to instigate the telephone call to the father’s mobile (or mobile nominated by the father), between 5.00pm and 5.15pm each Tuesday and Saturday with the Father to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy;
f)in the event the child is unavailable to communicate at the time pursuant to Order 6(e) herein, then telephone time shall occur at the same time on the following evening, provided however that should such time fall on the father’s birthday or Father’s Day then such time shall be suspended between 9.00am and 7.00pm on those days in each year.
That notwithstanding anything to the contrary the mother shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a)she first gives the father fifty-six (56) days notice of her intention;
b)she provides a full and complete travel itinerary to the father, including communication method, days and times, at least 21 days prior to traveling;
c)she only does so in odd years and only during the summer school holiday period when the child is in her care;
d)the child travel only to or through a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
e)there are no travel restrictions or warnings by the Department of Foreign Affairs for the country which the child is travelling to or through, that are “Do not travel” or “Reconsider your plans to travel” or to that effect;
f)upon satisfying the above conditions the father will provide the mother with the child’s passport;
g)upon her return to Australia the mother will immediately entrust the child’s passport into the father’s care;
That notwithstanding anything to the contrary the father shall be at liberty to take the child overseas for a period of no longer than twenty-eight (28) days, provided that:
a)he first gives the mother fifty-six (56) days notice of his intention;
b)he provides a full and complete travel itinerary to the mother, including communication method, days and times, at least twenty-one (21) days prior to travelling;
c)he only does so in even numbered years and only during the summer school holiday period when the child is in his care;
d)the child travel only to or through a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
e)there are no travel restrictions or warnings by the Department of Foreign Affairs for the country which the child is travelling to or through, that are “Do not travel” or “Reconsider your plans to travel to” or to that effect;
For the purposes of changeover for school holiday time pursuant to these Orders:
a)the first half of the school holidays shall be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at the commencement of the first school day for the next school term;
b)the second half of the school holidays shall be deemed to commence at 5.00pm on the Saturday closest to the midpoint of the school holiday period and conclude at the commencement of the first school day for the next school term.
During the school holiday period when the child spends time with the mother, telephone communication between the father and the child shall occur, with the father to instigate the telephone call to the mother’s mobile (or mobile nominated by the mother), between 5.00pm and 5.15pm each Tuesday and Saturday with the mother to facilitate the call by permitting the child to answer the telephone call and with the child to be afforded privacy.
All changeovers shall occur at the child’s school during school hours and all other changeovers shall occur at the Town E Snack Shop, Town E Creek Road, Town E, Queensland with the mother and father, or their nominees, to park their vehicles within a short walking distance of each other to allow the child to walk between the vehicles provided that neither the mother or father alight from their respective vehicles other than to assist the child and his belongings in and out of their respective vehicle.
Should either parent choose to communicate with the other on pressing child related issues the parties shall do so via email correspondence between them.
Neither parent is allowed to block the other parent on their mobile phone.
That notwithstanding anything to the contrary, should the child become unwell while he is spending time with the mother, the mother shall contact the father forthwith by telephone (leaving a message if necessary) immediately. The father be at liberty to immediately remove the child from the mother’s care.
That the parties shall:
a)permit the child to contact the other parent by telephone at all reasonable times that the child may request;
b)keep each other informed of his or her address, email and telephone contact number and any change thereof within forty-eight (48) hours of such change;
c)refrain from denigrating each other to, or in the presence of, or within hearing of the child and make every endeavour to ensure their respective partners/spouses do the same;
d)make every effort to ensure their respective partners/spouses do not interfere with adult issues involving the child;
e)not interrogate the child about the personal life of the other parent or his/her partner/spouse and respective the other parties privacy; and
f)not expose the child to any adult conflict or emotional harm whatsoever and immediately remove the child from such exposure.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
-
Remedies
0
0
7