Hickey and Wayne

[2016] FamCA 760

FAMILY COURT OF AUSTRALIA

HICKEY & WAYNE [2016] FamCA 760

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Competing applications as to arrangements for the children to spend time with and communicate with the father – Whether the parties should have equal shared parental responsibility for the children– Where there are disputed allegations of family violence – No order made allocating parental responsibility on an interim basis – Best interests of the children – Where there is no evidence as to the effect of a sudden increase in the time the children spend with the father – Where there are concerns as to the father’s supervision of the children – Orders made for the children to spend each alternate weekend with the father – Orders made for the children to spend time with the father during school holiday periods and on special occasions – Orders made for telephone communication.

Family Law Act 1975 (Cth) ss 60CC, 61C
APPLICANT:	Ms Hickey

RESPONDENT: Mr Wayne

FILE NUMBER: SYC 3691 of 2012

DATE DELIVERED: 8 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 31 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: KD Holmes Solicitors

Orders

ORDERS PENDING FURTHER ORDER IN RELATION TO THE CHILDREN:

• B born on … 2006 and

• C born on … 2009

(“the children”)

BY CONSENT:

1. The parties will effect changeovers, for the purposes of implementation of these orders, at D Shopping Centre carpark in the event that such do not occur at the children’s school.

2. Each party will facilitate telephone communication with the other parent at the request of either or both of the children.

3. Each party will facilitate telephone communication between the children and parents and extended family on special occasions.

4. Each party will inform the other, as soon as is practicable, of a serious illness or injury suffered by either of the children while in the care of that party and each party will ensure that the children receive prescribed medication.

5. Each party will keep the other informed of a current telephone number at all times.

6. The mother will keep the father informed at all times of the children’s residential address.

7. Each party is at liberty to attend the children’s sporting and extracurricular events.

8. The children will spend time with the father from 9.00 am until 9.00 pm on his wedding day 18 November 2016, with the mother to collect them at 9.00 pm from the Sydney Opera House Forecourt.

BY THE COURT:

1. The children will live with the mother.

2. The children will spend time with the father as follows:

   (a)during school term, each alternate weekend from 9.00 am (subject to Order 11) on Saturday until the commencement of school on Monday or Tuesday on a long weekend, provided that the father is available personally to care for the children;

   (b)for two periods each of three consecutive days’ duration during the short school holidays, on dates to be agreed;

   (c)for four periods each of three consecutive days’ duration during the Christmas school holidays, on dates to be agreed but which will include the period from 11.00 am on Christmas Eve until 9.00 am on Christmas Day in 2016 and each alternate year thereafter and Christmas Day in 2017 and each alternate year thereafter;

   (d)on the weekend of Father’s Day from 9.00 am on Saturday until the commencement of school on Monday, provided that the father is available personally to care for the children;

   (e)from the conclusion of school or 3.30 pm to 7.30 pm on C’s birthday in 2016 and each alternate year thereafter, in the event that the children are not otherwise in the care of the father pursuant to these Orders; and

   (f)from the conclusion of school or 3.30 pm until 7.30 on the father’s birthday, in the event that the children are not otherwise in the care of the father pursuant to these Orders.

3. In the event that a Saturday morning extracurricular activity of either child commences between 8.00 am and 10.00 am on an occasion when they spend time with the father pursuant to these Orders, such time will commence at 8.00 am and if the activity commences before 8.00 am such time will commence at the activity.

4. The children will communicate with the father by telephone between 7.30 pm and 8.00 pm each Tuesday, Thursday and Sunday when they are not in his care.

5. The father will initiate telephone communication with the children by way of calls to a mobile telephone which he will provide to the children, provided that this device does not have internet connectivity, or to the mother’s telephone number if the children cannot be contacted on their mobile telephone.

6. Each of the parties will give all consents and authorities required to enable release to the other party of all requested information concerning the children by their treating health professionals and personnel at their schools.

7. Otherwise, all applications and responses by which interim orders are sought are dismissed.

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 Hickey & Wayne 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 SYDNEY

FILE NUMBER: SYC 3691  of 2012

Ms Hickey

Applicant

And

Mr Wayne

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Wayne and Ms Hickey are the parents of two children:

   ·B born in 2006 (“B”) (9); and

   ·C born in 2009 (6).

   These proceedings concern interim parenting arrangements and injunctive orders sought by each of the parties.

2. The applicant mother sought the following interim orders:

   1.That, until further Order, the children, [B] born … 2006 (“[B]”) and [C] born … 2009 (“[C]”) (collectively “the children”), live with the applicant mother [Ms Hickey] (“the mother”).

   2.That, until further Order, the children spend time with the respondent father, [Mr Wayne] (“the father”) as follows:

   2.1.On the father’s wedding day, being 18 November 2016, from 9:00 a.m. until 9:00 p.m., with the mother to collect the children at 9:00 p.m. from the Sydney Opera House Forecourt.

   2.2.During the school term, each alternate weekend from
   9:00 a.m. on Saturday until the commencement of school on Monday, provided the father is personally available to care for the children during that time.

   2.3.During the short school holiday period, for a period of
   three (3) consecutive nights by agreement, and failing agreement from 9:00 a.m. on the first Saturday to 5:00 p.m. on the following Tuesday, provided the father is personally available to care for the children during that time.

   2.4.During the Christmas school holiday period, for up to
   three (3) periods of three (3) consecutive nights each, by agreement, or, failing agreement, as follows:-

   2.4.1.From 9:00 a.m. on the day following the last day of school, until 5:00 p.m. on the day being the fourth day of the school holiday period; and,

   2.4.2.For a further period to include either the evening of 23 December, or the evening of 24 December, but not both; and,

   2.4.3.For a further period to commence at 9:00 a.m. and to conclude at 5:00 p.m. on the day which is
   two (2) days prior to the commencement of school.

   3.That, until further Order and for the purposes of Order 2 above, changeover is to occur at the [D Shopping Centre] car park.

   4.That, until further Order, the mother and the father be and are hereby restrained from:-

   4.1.Assaulting, molesting, harassing, threatening or otherwise interfering with the other parent;

   4.2.Attending at the other parent’s residence without first providing at least 30 minutes prior notice by way of telephone call, SMS text message or other electronic communication except in the case of medical or other emergency;

   4.3.Stalking the other parent;

   4.4.Abusing or belittling the other parent;

   4.5.Abusing, harassing or belittling the children;

   4.6.Discussing any Court proceedings between the parties with the children, or allowing a third party to discuss such proceedings with the children;

   4.7.Denigrating the other party to the children, or within their hearing, or allowing a third parent to denigrate the other party to the children, or within their hearing, or allowing the children to remain in a place where the other party is being denigrated;

   5.The mother consents to interim orders 5, 9, 10, 15, 18, 19, 20 in the father’s Application for Interim Orders.

3. The respondent father sought the following interim orders:

   1.That the mother and father have equal shared parental responsibility for the children, [B], born … 2006 and [C], born … (“the children”).

   2.        That the children live with the mother.

   3.        That the children spend time with their father as follows:

   3.1.During school terms, each alternate weekend, from 9am Saturday (subject to order 4 below) until the commencement of school Monday except if the Monday falls on a public holiday in which case the time be extended to conclude at the commencement of school on Tuesday.

   3.2.During school holiday periods as follows:

   3.2.1.For half of each of the school holiday periods following term 1, term 2 and term 3, subject to order 3.3.5, as agreed between the parties and if not agreed as follows:

   3.2.1.1.In years ending in an even number commencing at 9am on the first Saturday of the school holiday period; and

   3.2.1.2.In years ending in an odd number commencing at 9am on the middle Sunday of the school holiday period.

   3.3.During the Christmas school holiday periods as follows:

   3.3.1.In 2016 and each alternate year thereafter from 9am 21 December to 9am 27 December;

   3.3.2.In 2017 and each alternate year thereafter from 9am 27 December to 9am 2 January the following year;

   3.3.3.In the 2016/2017 Christmas school holiday period and each alternate year thereafter from 9am on 2 January until 9am on 16 January;

   3.3.4.In the 2017/2018 Christmas school holiday period and each alternate year thereafter from 9am on 16 January to 9am the day before the commencement of term 1;

   3.3.5.On one occasion per calendar year, and upon the father providing the mother with at least 2 calendar months written notice, the time pursuant to order 3.2.1 be extended to a total of no more than 14 nights;

   3.3.6.In 2017 and each alternate year thereafter for the Easter weekend being from 9am Holy Thursday to before school the following Tuesday;

   3.3.7In 2017 and each alternate year thereafter, on the June/Queen’s birthday long weekend and the October long weekend from 9am Saturday to the commencement of school on Tuesday;

   3.3.8.On the weekend including Father’s Day from 9am Saturday to the commencement of school on Monday;

   3.3.9.In 2018 and each alternate year for the weekend including Chinese New Year period from the conclusion of school on Friday to the commencement of school on Monday;

   3.3.10.If the children are not in the father’s care, on C’s birthday, … 2016, and each alternate year thereafter, from the conclusion of school until 7:30pm (if it falls on a school day) and from 3:30pm to 7:30pm (if it falls on a non-school day);

   3.3.11.If the children are not in the father’s care, on the father’s birthday from the conclusion of school until 7:30pm (if it falls on a school day) and from 3:30pm to 7:30pm (if it falls on a non-school day);

   3.3.12.On the father’s wedding day on 18 November 2016 from 9am on that date until 11am the following day; and

   3.3.13.Such further times as agreed between the parties.

   4.That in the event either of the children’s Saturday morning
   extra-curricular activities commence between 8am and 10am during the time they spend with the father pursuant to order 3.1, then the time will commence at 8am and in the event the activity starts before 8am, the time will commence at the activity.

   5.That where changeover does not take place at the children’s school, changeover be at [D Shopping Centre] carpark.

   6.That the children communicate with the father by telephone each Tuesday, Thursday and Sunday when they are not in his care with such communication to be between 7:30pm-8:00pm.

   7.That phone communication for the purposes of order 6 occur, in the first instance, by the father initiating the call to a mobile telephone provided by him to the children and, in the event the children cannot be contacted on that phone, then the father will initiate the telephone call to the mother’s phone and the mother will ensure the children are available during these times and given privacy and that the phone is charged and switched on at all times.

   8.That the mother provide the telephone contact number of any caregiver for the children, to enable phone communication between the father and the children pursuant to Order 6.

   9.That each parent will facilitate phone communication between the children and the other parent, at the request of either [B] or [C].

   10.That each party will facilitate phone communication between the children and the parents along with extended family members on special occasions.

   11.That each parent be and is hereby restrained by injunction from doing any act or thing to cause or permit the children to live outside of the Sydney Metropolitan Area without first obtaining the consent in writing of the other parent.

   12.That both parties be permitted to remove the children from Australia during periods when the children are in their respective care on condition that they provide to the non-travelling parent, at least 2 calendar months prior to the proposed date of departure, the following information:

   12.1.Dates of proposed departure and return;

   12.2.Copy of itinerary provided by travel agent or airline if any;

   12.3.Copy of return airline ticket/s if any;

   12.4.Address/es at which the children will be residing whilst outside the Commonwealth of Australia;

   12.5.Telephone numbers upon which the children can be contacted whilst holidaying  outside the Commonwealth of Australia.

   13.That the travelling parent will be provided with the children’s passports at least within 7 days after a written request is made and after the provision of the information set out in clause 12.

   14.That each alternate year one of the parents will host the children’s birthday party and the host parent will ensure the birthday party does not interfere with the time the children spend with the other parent pursuant to these orders.

   15.That each party will as soon as practicable inform the other in the event of either of the children suffering a serious illness or injury and will ensure the children receive any prescribed medication in accordance with any current prescription and will keep the other parent informed of any medication prescribed for either of the children.

   16.That the Mother and Father do all acts and things necessary to authorise any medical practitioners, preschools and schools that the children may attend to release all the information regarding the children to the other parent.

   17.That the Mother do all things necessary to ensure that the Father is noted as second point of emergency contact after the Mother on any school or other form in relation to the children.

   18.That each parent keep the other provided with a current telephone contact number.

   19.That the mother keep the father informed of the children’s home address.

   20.Each party is at liberty to attend the children’s sporting and
   co-curricular events.

   21.That the mother’s application for interim orders otherwise be dismissed.

   22.Costs.”

4. The mother consented to the orders proposed in paragraphs 5, 9, 10, 15, 18, 19 and 20 of the father’s Response.  It was agreed that the children will spend time with the father each alternate weekend from 9.00 am on Saturday until the commencement of school on Monday, provided that he is available personally to care for them.  The major issue in dispute was the children’s time with the father during school holidays.

5. At the interim hearing on 31 August 2016 I was informed that the parties have an appointment with a Family Consultant on 21 September 2016 for a Child and Family Meeting.  A Children and Parents Issues Assessment will then be prepared by the Family Consultant and made available to the parties, their lawyers and the Court.  As it was likely that I would have been assisted by the Family Consultant’s Memorandum, I invited the parties to consent to an adjournment of the interim hearing to a date late in September 2016 before myself.  Such consent was not forthcoming and, accordingly, the interim hearing proceeded without expert input.

Background

1. The father and the mother, who are aged 39 and 36 respectively, began to live together in December 2003 and married in 2006.  They separated on 20 November 2011 and were divorced by an order which became final on 16 August 2013.

2. In 2006 the parties moved to Asia, where the father worked.  The mother remained in the home and cared for B on a full-time basis, until she returned to the paid workforce for two days per week in March 2008.  When the mother was at work, B was cared for by a domestic assistant who had joined the parties’ household in 2007.

3. In February 2009 the parties employed an additional domestic helper named “Ms E”.  The mother remained in the home and cared for the children on a full-time basis until November 2011.  It seems that, when the mother and the children left Asia, the father continued to employ Ms E.

4. The mother and the children returned to Australia shortly after the parties’ separation in November 2011.  They moved into a home at Suburb F which the parties had purchased in 2009.  The father remained in Asia until he returned to Australia in July 2015.

5. Between December 2011 and July 2015 the father travelled to Sydney from Asia for weekends on approximately 143 occasions, in order to spend time with the children.  His evidence was that he travelled to Sydney on Friday night and returned to Asia on a flight which departed at 10.00 pm on Sunday.

6. After the father returned to Sydney, the children spent time with him each alternate weekend from 9.00 am on Saturday until the commencement of school on Monday.  The father collects the children from the mother’s home and drives them to school on every other Monday and each Wednesday morning.  The parties live in close proximity, with the mother’s home being at Suburb G and that of the father at Suburb F.

7. The children spent approximately one week with the father at the Central Coast during the Christmas 2014 school holidays.  The father’s partner Ms H and the domestic helper Ms E were both present during this holiday period.  B suffered from serious sunburn during this holiday.  The father informed the mother of B’s sunburn on the following day.  Regrettably, the father’s treatment of B’s sunburn was inappropriate and she was admitted to hospital after she returned to the care of the mother.  After this incident, the mother refused to allow the children to spend time with the father for any period over two consecutive nights.

8. During the September 2015 school holidays the father took the children fishing at Cottage Point.  The father warned the children of danger from rocks and sharp oyster shells near the shoreline.  Regrettably, B suffered a cut to her leg from oyster shells or rocks and was taken by the father to Suburb I Hospital.  The father informed the mother by telephone of B’s accident.

1. On 17 April 2016 the father took the children to a camping stay at the home of his father.  On the first day of the visit, B rode a pony.  On the next day B rode the pony again but she fell and injured her neck and face.  The mother took her to a general practitioner on 19 April 2016.  B underwent scans and was prescribed pain relief medication.

2. During a trip to South East Asia for the wedding of her brother in July 2016, the mother and children stayed on route with friends.  During their stay, B was bitten by the friend’s pet poodle.  The mother deposed “I did not and do not consider that the injuries were sufficiently serious that I needed to immediately inform [Mr Wayne].”

3. On 23 April 2016 the father attended Suburb I Hospital, suffering from chest pain.  He was transferred to the cardiac unit at J Hospital.  The notes of Suburb I Hospital read in part:

   [Professional]

   Stressed recent divorce, having bitter custody battle for children with
   ex-wife

   Started own business, which he states is failing

   Has been drinking more than normal, except for last night he has been binge drinking for the past 9 days

   Anxious teary adult man

4. On a final basis, the mother seeks orders which would permit her to relocate the children’s residence to Perth.  The father sought an interim order as follows:

   11.That each parent be and is hereby restrained by injunction from doing any act or thing to cause or permit the children to live outside the Sydney metropolitan area without first obtaining the consent in writing of the other parent.

   The mother opposed the making of this order.  At the interim hearing on 31 August 2016 counsel for the mother placed on record that she would not locate the children’s residence outside Sydney without a final order.

5. The father deposed that he has been unable to secure suitable employment in Australia and that he is negotiating a contract in Asia.  He deposed that he intends to return to Sydney to spend time with the children each alternate weekend, in the previous pattern, if he again lives and works in Asia.

6. B is currently receiving treatment for depression from Prof K, who has prescribed a daily dose of medication.  The mother deposed that she began to observe changes in B’s behaviour in January 2014.  The mother attributed these changes to the parental separation and arranged for B to see a psychologist.  According to the mother, the child’s mood and demeanour had improved by about May 2014.

7. The mother deposed that B asked to see the psychologist again in January 2015 and she made the necessary arrangements.  According to the mother, in February 2015 B began to make threats of self-harm and hit her head against a wall.  The mother consulted her GP, who made a referral to Professor G.

8. Each of the parties levelled allegations against the other of conduct which would fall within the statutory definition of family violence.  Additionally, the mother alleged that the father has an untreated psychiatric condition.  She maintained that the father has difficulties with control of anger and aggression.  The mother alleged further that the father lacks experience in caring for the children for long periods and that he fails to exercise adequate supervision.

The competing proposals of the parties

1. The father proposed that the parties have equal shared parental responsibility on an interim basis.  The mother proposed that there be no interim order in relation to parental responsibility, thus section 61C would continue to apply pending a final hearing.

2. The mother proposed that the children spend time with the father during the short school holidays for a maximum period of three consecutive nights.  During the interim hearing, it was indicated on behalf of the mother that she would be amenable to more than one such period of three consecutive nights during the Terms 1, 2 and 3 school holidays.

3. In respect of the Christmas school holidays, the mother proposed that the children spend time with the father for up to three periods of three consecutive nights.  She proposed that the children spend alternate Christmas Eves and Christmas Days with each parent, noting when B’s birthday falls.

4. The father proposed that the children spend time with him for half of the short school holidays in a block period.  In respect of the Christmas school holidays the father proposed that the children spend time with him from

   
   

   21 to 27 December in 2016 in each alternate year;  from 27 December to 2 January 2017 and each alternate year;  in 2016/2017 from 2 January 2016 until 16 January 2017 and each alternate year;  in 2017/2018 and each alternate year from 16 January to the day before the commencement of Term 1.  The father’s proposal contained provision for the children to spend 14 nights with him during one short school holiday per year, upon the provision of two months’ notice.

5. The father’s proposal contained provision for the children to spend time with him on alternate Easter weekends, C’s birthday, the father’s birthday and his wedding day of 18 November 2016.  He proposed that the children communicate with him between 7.30 pm and 8.00 pm each Tuesday, Thursday and Sunday.  The father further sought orders which would permit each of the parties to take overseas holidays with the children.

Issues

1. As noted, each of the parties levelled against the other allegations of conduct which would fall within the definition of family violence.  These allegations were disputed to a significant extent and are incapable of resolution in the context of an interim hearing.

2. As noted, the principle issue in these proceedings was the time which the children should spend with the father during school holidays.  As noted further, the mother raised issues in relation to the father’s psychiatric condition;  his capacity to contain and manage anger and aggression and an alleged failure to exercise adequate supervision.  Implicitly, the father raised an issue as to the mother’s capacity to recognise the children’s need for a meaningful relationship with him.

Agreed or uncontested facts

1. The parties agreed that the children will continue to live primarily with the mother.

2. It was common ground that the children should spend time with the father during school holidays.  It was also agreed that this time should include overnight stays.  The issue, in essence, was the duration of the children’s overnight stays with the father during school holidays.

3. There was no dispute that B continues to consult with Prof K and to take medication.  The father contended that he receives little, if any, information in relation to these consultations.  The father held a meeting of approximately one hours’ duration with Prof K in September 2015.

4. It was agreed the father was admitted to a cardiac unit at J Hospital on 23 April 2016.  His uncontradicted evidence was that he began to consult a psychologist on the advice of his GP and cardiologist following this admission.  The purpose of these psychological consultations was assistance with stress management.

5. It was common ground that the father is seeking employment in Asia and that it is highly probable that he will return to live in that city in the near future.  There was no dispute that he will return to Sydney approximately each alternate weekend to spend time with the children.

6. It was agreed that the father and his fiancée Ms H will marry in Sydney on 18 November 2016.  The parties have agreed that the children will attend the wedding.

Section 60CC considerations

1. The parties have negotiated arrangements for the children to spend time with the father for the four-year period since their separation.  That fact, together with the competing proposals which would see the children spending time with each parent, suggests to me that they both acknowledge the benefit of a meaningful relationship with the other party.

2. As noted, each of the parties levelled at the other allegations of conduct which would fall within the statutory definition of family violence.  To a significant extent, these allegations were denied or one party blamed the other for these incidents.

3. Findings of fact cannot be made in relation to these disputed allegations in the context of an interim hearing, where there is no testing of evidence.  Notably, most of the incidents upon which the mother relied as evidence of the father’s propensity to violence against strangers are now of some antiquity.  It is notable also that the mother’s proposals would see the children in the care of the father for repeated periods of three consecutive days and nights.

4. On the other hand, I have concerns arising from the injuries which B has suffered while in the care of the father on three occasions.  I refer to her sunburn, leg cut and the horse riding accident, all of which necessitated medical treatment.  I have no doubt at all that the father deeply regrets these incidents but it would appear that he should have been more vigilant on each of these occasions.

5. In the context of untested evidence, I am not prepared to place significant weight on the mother’s contention that the father blamed B for her sunburn.  The mother could not produce a copy of the message in which the father allegedly wrote words to the effect “it was [B’s] fault for wearing inappropriate clothing to the beach and for not remembering to put sun-cream on herself”.

6. My concerns as to the father’s apparent failure to supervise the children adequately are exacerbated by the date of B’s horse riding accident.  This incident occurred on 18 April 2016, which fell within the nine day period during which the father was “binge drinking” on his own account.  A note to this effect appears in the admission notes of Suburb I Hospital (Exhibit 1).

7. The father’s evidence that both children have expressed to him a wish to spend more time in his care cannot be afforded significant weight in the context of these interim proceedings.  I do attach weight, however, to the fact that there was no evidence that either child has ever refused to spend time with the father.  I conclude that both children have a good relationship with each of their parents and wish to spend time with their father.

8. It seems to me that the father has gone to considerable and commendable lengths to spend time with the children since the parties’ separation.  He undertook lengthy flights between Asia and Sydney on many occasions for more than three years.  In my view, the father has thus demonstrated a very strong commitment to the children.

9. Regrettably, there was no evidence as to the likely effect upon the children of the changes proposed by the father.  His proposal would bring about an increase in the children’s time in his care on a sudden basis.  There could well have been helpful evidence as to this issue from the Family Consultant, following the Child and Family Meeting.  I am cognisant that B is under the care of a psychiatrist and that fact enhances my concern about the unknown effect of a significant change in the children’s circumstances.

10. If the father returns to live in Asia, there will be practical difficulty and expense involved in the children spending time with him.  There was nothing in the evidence to suggest that he will not again shoulder the cost and inconvenience of the required air travel.

The presumption of equal shared parental responsibility

1. In light of the competing and unresolved allegations of family violence, I conclude that it would be inappropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings.  As noted, it is impossible that any determination be made as to the veracity of these allegations at the present time.  In my view, the applicability of the presumption of equal shared parental responsibility must await determination at a final hearing.

2. I will accede to the submission on behalf of the mother to the effect that no order should be made which disturbs the operation of section 61C.  Accordingly, each of the parties continues to hold parental responsibility for the children.

The best interests of the children

1. As there will be no order for equal shared parental responsibility, I am at liberty to proceed directly to a consideration of what orders are in the best interests of the children.  I am not required to consider whether it is in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent.

2. I am not persuaded that it is in the children’s best interests that there be an immediate introduction of an arrangement in which they spend half of the short school holidays and six consecutive nights with the father during the 2016 Christmas vacation.  In my view, the effect of this proposed change upon the children is uncertain and is a matter for speculation.

3. Additionally, I have concerns as to the father’s willingness and/or capacity to properly supervise the children during extended periods in his care.  I appreciate that children suffer accidents as a matter of course and, indeed, B suffered a dog bite while in the care of the mother.  As noted, however, my concerns are exacerbated by the fact that B’s horse riding accident occurred during the father’s self-reported period of binge drinking.

4. It seems to me that the children’s best interests will be met by orders to the effect that they spend two periods, each of three consecutive days’ duration, in the care of the father during the short school holidays.  Similarly, I consider that a series of consecutive three day periods during the Christmas school holidays would best meet the children’s interests.  I will make orders to the effect that the children spend four such periods with the father during the Christmas school holidays.

5. It appears that the children spent Christmas Day in 2015 with the father.  Accordingly, I consider that they should spend Christmas Day 2016 with the mother and part of Christmas Eve with the father.  I am conscious that B’s birthday falls around that time and she should spend time with each of her parents on that day.

6. I am disinclined to make orders as sought in paragraph 4 of the Minute submitted on behalf of the mother.  Some of these proposed injunctive orders are worded in imprecise terms and could prove to be problematic, in terms of enforcement.  If necessary, either party is at liberty to have recourse to State laws in any such circumstances.

7. I consider that the children will benefit from time spent with the father on the special occasions of his and C’s birthdays and Father’s Day.  Otherwise, I will not make orders in accordance with paragraph 3 of the Minute submitted on behalf of the father.

8. The father sought orders to the effect that the children’s weekend time with him commence at 8.00 am on Saturdays in the event that an extracurricular activity commences between 8.00 am and 10.00 am.  He proposed that time start at the activity, in the event of a commencement prior to 8.00 am.  I will accede to this proposal, as I see benefit to the children in the father being involved in their extracurricular activities.

9. There was a minor issue concerning the time of the children’s telephone communication with the father.  He sought that the children speak with him between 7.30 and 8.00 pm, so as to accommodate the time difference between Asia and Sydney and his busy work period in later afternoon.  I see no reason why orders should not be made as proposed by the father.

10. The father sought that alternate weekend time extend to the commencement of school on Tuesday, in the event of a public holiday.  I see no reason for the children to return to the mother on Monday morning, if time with the father falls on a long weekend.

11. It seems to me to be premature, at this stage, that there be orders which permit either party to remove the children from Australia.  I agree with the mother that this issue should await a final hearing.

12. The father sought that the mother do all things necessary to ensure that he is named as the second point of emergency contact at the children’s school.  In view of his plans for an imminent relocation to Asia, I see little utility in such an order.

13. There was an issue as to whether the father should be at liberty to provide the children with mobile telephones equipped with internet connectivity.  The father sought to communicate with the children by Facetime but the mother had concerns about access to inappropriate material.  In light of the young ages of the children, I will accede to the mother’s position on this issue.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 September 2016.

Associate: 

Date:  8 September 2016