IVARRA & STEADMAN

[2019] FCCA 2988

FEDERAL CIRCUIT COURT OF AUSTRALIA

IVARRA & STEADMAN [2019] FCCA 2988

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286

Banks & Banks [2015] FamCAFC 36

Applicant: MR IVARRA

Respondent: MS STEADMAN

File Number: PAC 2383 of 2017

Judgment of: Judge Newbrun

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Parramatta

Delivered on: 1 November 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Palmer

ORDERS

1. All previous parenting orders are discharged.

1. That the Mother and Father have equal shared parental responsibility for the Child X born … 2014 (the Child).

Child’s living arrangements

1. That the Child shall live with the Mother.

Child’s time with the Father

1. That the Child spend time with the Father as follows:

4.1Each alternative week from 5.30pm on Friday until 5.00pm on Sunday. The Mother (or her nominee) shall deliver the Child to the Father at the Shell service station located at A Street, Suburb B, NSW, on the Friday. The father (or his nominee) shall deliver the Child to the Mother’s home at the conclusion of the Father’s time on the Sunday.

If the Mother or Father’s time with the child commences or concludes

at Day Care, then they shall collect / deliver the Child from Day Care.

4.2On Father’s Day weekend from 5.00pm on Saturday until 5.00pm on Sunday.

4.3For the Easter long weekend from 4.00pm on Thursday until 4.00pm on Saturday.

4.4For years ending in an odd number: On the Child’s birthday (…), if the Child would not otherwise be spending time with the Father on her birthday, from 4.00pm until 7.00pm. Otherwise for years ending on an even number, to be spent with the Mother.

4.5On the Father’s birthday, if the Child would not otherwise be spending time with the Father on his birthday, from 4.00pm until 8.30pm.

4.6From 9.00am Christmas Eve until 12.00 noon Christmas Day in years ending on an odd number.

4.7From 2.00pm Christmas Day until 7.00pm Boxing Day in years ending on an even number.

4.8At other times as agreed between the Mother and Father from time to time. Once agreed to in writing including by email, text message or other written form, the parties must adhere to the agreement.

Suspension of Father’s time

1. That the Child’s time with the Father pursuant to Order 4 above shall be suspended at the following times when the Child shall remain living with the Mother:

5.1On Mother’s Day weekend from 5.00pm on Saturday until 6.00 pm on Sunday

5.2On the Child’s birthday, if the Mother would not otherwise be spending time with the Child on her birthday, from 8.00am until 4.30pm

5.3On the Mother’s birthday, if the Child would not otherwise be spending

time with the Mother on her birthday, from 4.00pm until 8.30pm

5.4For the Easter long weekend from 4.00pm on Saturday until 6.00pm on Sunday

5.5From 9.00 am Christmas Eve until 2.00pm Christmas Day in years ending in an even number

5.6From 12.00 noon Christmas Day until 7.00 pm Boxing Day in years ending in an odd number

5.7At other times as agreed between the Mother and Father from time to time

Father and Mother’s communication with the Child

1. That the Father and the Mother shall each have liberal and flexible telephone communication with the Child such that:

6.1The Father shall telephone the Child when she is living with the Mother on a number provided by the Mother

6.2The Mother shall telephone the Child when she is living with the Father on a number provided by the Father

6.3That the Mother and the Father shall encourage and facilitate the Child communicating with the other parent pursuant to the provisions of these Orders

1. That to facilitate the Child communicating with the other parent:

7.1Each parent acknowledges that the Child is at liberty to telephone the other parent at any time that does not interfere with the activities and events in each partner’s household, and

7.2Each parent shall provide the Child with access to a telephone and such assistance as the Child may require to communicate with the other parent

Provision of Information about the Child

1. That the Mother and Father shall keep each other advised of their contact telephone numbers

1. That the Mother and Father shall keep each other advised of their residential address and provide each other with no less than 21 days’ notice in writing of any intention to change address

2. That the Mother and Father shall do all things necessary to authorise the Child’s school to provide the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the Child’s school activities

3. That the Mother and the Father be entitled to obtain directly from any School attended by the Child or any health or welfare professional or other professional attended by the Child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health or welfare of the Child and for this purpose the Mother and the Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed

4. That the Mother and Father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child   when the child is in their care, and promptly provide all consents as may be required or      requested by medical professionals for medical treatment. Together with such notice the parent is to provide the name of the hospital, treating medical practitioner and / or medical facility that provided the medical treatment for the Child.

Restraints

1. That the Mother and Father be restrained from:

13.1Speaking or permitting any other person to speak to or about the other parent or member/s of their family in a negative, offensive or unpleasant fashion in the Child’s presence or hearing, and

13.2Causing or allowing the Child to be exposed to harassing, threatening, intimidating or violent behaviour

1. That the Mother and the Father are restrained by injunction from blocking the other parent’s telephone number such that telephone communication is prevented

Overseas travel with the Child

1. That the Mother and Father be permitted to travel outside of the Commonwealth of Australia with the Child provided that they provide the non-travelling parent with at least 4 weeks’ notice in writing, along with:

15.1A copy of the proposed itinerary

15.2Full contact details for the Child whilst they are overseas, including telephone numbers and addresses where they will be staying, and

15.3Obtaining the consent from both the Mother and the Father (which shall not be unreasonably withheld) or Order of the Court

1. Notwithstanding Order 15, the Mother and the Father are restrained by injunction from travelling overseas with the Child to a country that has not signed the Hague Convention on the Civil Aspects of International Child Abduction and in which the Hague Convention is not in force between Australia and that country.

1. That within seven (7) days of being notified of the other parents’ intention to travel with the Child pursuant to Order 15, the non-travelling parent will provide the Child’s Australian passport to the travelling parent, if that is not already in their possession

2. That should a parent require the Child’s passport for the purpose of facilitating travel   overseas (ie booking plane tickets) then within seven (7) days of being notified of the other   parent’s intention to book an overseas holiday with the Child pursuant to Order 15, the non-travelling parent will provide the Child’s passports to the travelling parent, if it is not      already in their possession

3. That when the Child is not travelling, the Mother shall hold the passport for the Child and for this purpose within seven (7) days of returning with the Child from any overseas travel   or completing any acts or things necessary to facilitate the overseas travel, the Father will do all acts and things necessary to deliver the Child’s passport to the Mother

4. That the Mother and the Father shall do all such acts and things and sign all documents necessary to ensure that the Child has a valid Australian passport at all times, with the Father to pay as and when they fall due all fees associated with applying for and obtaining and renewing the passport

5. That during overseas travel with the Child pursuant to these Orders, the time with the Child would ordinarily be spending with the non-travelling parent shall be suspended

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2383 of 2017

MR IVARRA

Applicant

And

MS STEADMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This final hearing related to the child X born … 2014.

2. Interim parenting orders were made by consent on 18 December 2017.  Those orders, by consent, were varied on 23 May 2018.

3. On 7 March 2019 the parties advised the court, at the mention of the proceedings at which they sought a final hearing fixture, that the only present significant outstanding issue between them was the issue of changeover, in particular the changeover on the fortnightly Friday afternoon at 4:30 PM.

4. On 9 May 2019, the court listed the final hearing for a ½ day fixture on 13 September 2019.

5. The mother lives with the child at Suburb C, in the Region G area. The father lives at Suburb H.

6. At the time the consent interim parenting orders made on 18 December 2017, both parties lived in the Suburb D area near Region G.

7. The interim parenting orders now in place effectively provide for the child to live with the mother; and for the child to spend time with the father as follows:

   A) In week one and each alternate week thereafter:

   i)From 4:30 PM until 6:30 PM on Wednesday (the father to collect and return the child from the mother’s home)

   ii)From 4:30 PM on Friday (the mother to deliver the child to the father at a BP service station in Suburb H) until 5 PM on Sunday (the father to deliver the child to the mothers home)

   B) In week two and each alternate week thereafter from 4:30 PM on Wednesday until 8:30 AM on Thursday (the father to pick up and drop off the child at the mother’s home)

Proposals

1. The father sought final parenting Orders in accordance with his document headed, “Final Orders Sought” and dated 13 September 2019.

2. The mother sought final parenting orders in accordance with her document headed, “(Respondent Mother’s Proposed) Final Orders”.

Material relied upon

1. The mother relied upon the documents set out in her case outline dated 6 September 2019, including her affidavits filed 14 September 2017 and 27 August 2019.

2. The father relied upon his above Final Orders Sought document and his affidavit sworn 28 August 2019.

3. The following exhibits were relied upon:

   a)Google map relating to drivetime between Suburb C and Suburb H: exhibit A

   b)School term dates for 2019 the New South Wales: exhibit B

Evidence

1. Throughout these reasons the Court will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The court does not propose to set out the entirety of the parties’ affidavit evidence.

3. The mother was born in 1987 and the father was born in 1984.

4. The parents commenced cohabitation in about … 2014. They separated in about April/May 2015. 

5. The father moved to Suburb H in about April 2018.  Again, previously the parties resided at Suburb D.

6. The child is due to commence school next year at either F Public School or E Public School.

7. The mother stated in her last affidavit that for her to take the child from Suburb C to Suburb H on Friday afternoon is one of the worst times in which to travel on that particular route taking into account heavy peak hour traffic at that time.  She states that the obligation to undertake the delivery of the child to the father and the time it takes to do such means that she is restricted in respect to prospective employment.  She asserts that the necessity to leave at 3 PM every second Friday is from her experience not one any of her prospective employers will accept.

8. The mother states that due to the current orders she cannot commit to working on Friday.

9. The mother asserts that the return trip from her home at Suburb C to Suburb H on the Friday afternoon is about three hours.  (The court observes that exhibit A being the Google map, indicates that the drivetime between Suburb C and Suburb H, without traffic, is 49 minutes, and it is a 53.4 km journey.)  The mother states that she is required to travel along the M5 motorway for most of the trip.  She asserts that this is a notoriously slow and congested motorway.  On the Friday she leaves at about 3 PM with the child and by the time she arrives home it is 6:15PM or can be later if traffic is bad.

10. The mother asserts that the obligation to undertake the Friday afternoon drop-off is placing great stress and anxiety upon herself due to the traffic delays, which are out of her control.

11. The mother asserts that to ensure the father has maximum time with the child during weekend visits, she believes the Friday drop-off should take place at a new drop-off and collection point which is halfway between her house at Suburb C and the father’s house at Suburb H; she asserts that this halfway point is a service station at Suburb B.

12. As to mid week visitations under the present court orders, the mother asserts that she has become aware that each of the mid week contacts has not been utilised by the father to actually see and spend time with the child.

13. The mother asserts that from her calculations the father has only spent about 2% of his mid week contact time with the child since the consent interim parenting orders of 18 December 2017.

14. The mother asserts that the paternal grandparents collect the child from her house each Wednesday afternoon.  The mother understands that the child spends the whole time at her grandparents house with the paternal grandparents and not with the father.  She asserts that the paternal grandparents always drop the child off when she is returned to the mother after such visits.

15. The mother refers to an email from the father to herself dated 17 April in which the father states, “I have a work meeting twice a month that doesn’t allow me to make it for the two-hour visit.  I don’t mind this as I like (the child) having a relationship with her grandparents.”

16. The mother asserts that in relation to the fortnightly Wednesday overnight visit between the child and the father, the paternal grandparents drop the child off at the child’s daycare on Thursday morning.  The mother refers to a conversation she had with an employee of the day care facility who stated to the mother that she has not seen or met the father at the daycare premises.

17. The mother states that she is not opposed to the paternal grandparents having a close and loving relationship with the child however, she is mindful that the child looks to these Wednesday mid week visitations as time to spend with the father together.  The mother states that this is not taken place and it is causing stress, disappointment and concern to the child.  The mother states that as the child is not spending time with the father on Wednesdays, she would prefer that the child stays with her on those days and she believes that it would cause her less distress and disruption.

18. The father asserts that he works in the building industry where his expected standard working hours are 6 AM to 6 PM Monday to Friday and then 7 AM to 3 PM Saturdays.

19. He asserts that during his interview with his current employer he requested every second weekend off and be able to leave work at 3:30PM every second Friday to comply with court orders and to make it to Suburb H for drop-off.  He states this was an agreement made with his employer during the interview process.

20. The father asserts that his job location changes depending on which site he is on and the last 10 months he has been working and travelling from Suburb K.

21. The father asserts that he is unable to leave work any earlier on Friday to travel “extreme distances” from Suburb K.(In his opening remarks to the court the father stated that his new construction site is now at Suburb J).

22. The parties gave oral evidence.

23. The court does not propose to set out the entirety of the parties’ oral evidence.

24. The father asserted that the interim parenting orders made by consent on 23 May 2018 were made after he moved to Suburb H.

25. The father agreed that a majority of times the paternal grandparents pick up the child for the midweek time beginning on the Wednesday at 4:30PM.

26. The father stated that his standard working hours of 6 AM to 6 PM Monday to Friday do not include the Wednesdays when he is due to spend time with the child.

27. The father stated that he struggles to pick up the child on the Wednesdays when he is due to spend time with her.

28. The father stated that his next construction job is at Suburb J, once the Suburb K defects period is over.  He stated he works as a foreman.  He later stated that when working at Suburb J he has been able to leave work at 3:30 PM. 

29. The father stated he does not have difficulties getting to the Friday changeovers (at Suburb H).

30. The father stated that he has recently remarried and that his wife is 8 weeks pregnant.

31. The father stated that if the changeover on the Friday at 4:30 PM was at Suburb B, he would have to leave Suburb J 2 ½ hours before.  He then stated, in answer to the Court, that he could arrive at Suburb B, on the fortnightly Friday afternoon when he was due to spend time with the child, by 5:30 PM.

32. It was put to the father that the maximum time the child had been away from the mother was four nights.  The father agreed stating that the child spend two nights with the father and then two nights with the maternal grandmother.

33. The father stated that, in relation to his afternoon time with the child commencing on Wednesdays, he would attend such time personally once per month.

34. The father stated that, in relation to his overnight time (one night) with the child commencing on the Wednesday, he would attend about 70% of the time.

35. The mother stated that the child does ask her, in relation to prospective time to be spent with the father, “Is my father going to be there?”  The mother stated that she would respond to the child, “I’m not sure.”

36. The mother stated that the child’s normal bedtime is 7:30 PM on Wednesdays.

37. The mother stated that she has always wanted to work full-time, including on Fridays, when the child starts school in 2020.

38. In answer to the Court, the mother stated that if changeover on the fortnightly Friday was 5:30 PM at Suburb B, she could arrive there by that time if she was to leave the child’s local school at 3 PM.  In this context, the mother stated that she now leaves her home at Suburb C at 3:10 PM to arrive at Suburb H at 4:30 PM.

39. In answer to the Court, the mother stated that if changeover on the fortnightly Fridays was 5:30 PM at Suburb B, and she was working in employment near where she lives, she would have to leave work by 4:45PM/5 PM.

40. The mother stated that she has work experience in customer service.  However she stated that she would try and obtain work as a customer service officer.

41. In submissions, the father stated to the Court that when he is able to spend time with the child commencing on the Wednesdays, he usually arrives at 5:30 PM/6 PM.  He confirmed that the paternal grandparents normally pick up the child on the two Wednesday visits.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC 93-286.

2. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

4. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

5. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

6. When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.

7. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

8. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

9. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. Should the Court order that the fortnightly Friday changeovers occur approximately halfway between the parties homes at Suburb B, there should be no detrimental effect upon the child’s meaningful relationship with the father because the child would be spending time with the father, albeit commencing at Suburb B, rather than Suburb H.

3. Should the Court make no final parenting orders relating to the child spending time with the father in week one on Wednesdays from 4:30 PM to 6:30 PM, and no orders relating to the child spending time with the father in week two from 4:30 PM on Wednesday until 8:30 AM on Thursday, there should be no detrimental effect upon the child’s meaningful relationship with the father. 

4. This is because firstly, the court observes that despite the father’s unreliable attendance upon such times to be spent with the child, the child still has a meaningful relationship with the father.

5. And secondly, it will remove the child’s disappointment, stress and anxiety in being disappointed in the father not reliably and punctually attending such time to be spent with the child. The continuance of such disappointment, stress and anxiety may well lead to the child’s meaningful relationship with the father been detrimentally affected. 

6. The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. This consideration is not relevant.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court takes into account the statements made by the child to the mother, in relation to the father attending upon time to be spent with her on the Wednesdays, including her disappointment stress and anxiety in the father not attending such time, whilst noting her tender age.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the meaningful relationship primary consideration above.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The mother has taken such opportunities.

2. The father has taken such opportunities, but has been unreliable in regularly attending time to be spent with the child commencing on the Wednesdays.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. It would appear that each parent has fulfilled such obligations during such times as the children have been in their respective care.

2. The father informed the Court that he earns about $147,000 per annum as a foreman and pays $1,157 per month in child support to the mother.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Should the child spend regular time with the father on a fortnightly basis from 5:30 PM on Friday until 5 PM on Sunday, together with time with the father during holidays and on special occasions, with the court making no orders for midweek time between the child and the father, there should be no detrimental effect upon the children’s meaningful relationship with the father.

2. Should the Court make no parenting orders in relation to midweek time between the child and the father, thereby resulting in the child not spending such time with the paternal grandparents, the court is confident that the mother will otherwise likely facilitate the child spending time with the paternal grandparents, whose residence is within reasonable proximity of the mother’s residence.  The mother’s evidence was that she is not opposed to the paternal grandparents having a close and loving relationship with the child.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. It is impractical for the mother to continue to drop off the child on the fortnightly Fridays at 4:30 PM at Suburb H.  This trip for the mother on the fortnightly Friday takes her over three hours.  The fortnightly drop off by the mother on the Friday afternoon is placing great stress and anxiety upon herself due to the traffic delays involved in the driving trip.

2. Further, there is a significant prospect that this fortnightly Friday afternoon driving trip will detrimentally affect her prospects of employment on the Friday if the mother is to remain subject to a court order that she deliver the child to Suburb H on the fortnightly Friday at 4:30 PM.

3. A changeover at 5:30 PM at Suburb B on the fortnightly Fridays will likely minimise the above problems for the mother.  On the evidence before the court, both parties should be able to reliably attend the fortnightly Friday changeovers at Suburb B at 5:30 PM.

4. By reason of the father’s employment obligations, he has been, and continues to be, unable to reliably spend time with the child midweek, that is, in relation to his time to be spent with the child commencing on Wednesdays. The court refers to its discussion above under the meaningful relationship primary consideration and additional considerations in this context.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to its discussions above under the meaningful relationship primary consideration, and in relation to the additional consideration in respect to the views of the child.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. There is a significant suggestion on the material before the Court that both parents have taken such opportunities, however the father has not reliably spend time with the child pursuant to the Court’s interim parenting orders relating to midweek time commencing on the Wednesdays.

(j) Any family violence involving the child or a member of the child's family

1. Not applicable.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The Court is of the view that the mother’s proposed final parenting orders, in particular relating to the changeover on the fortnightly Friday afternoons, and in relation to making no orders for midweek time between the child and the father, would be least likely to lead to the institution of further proceedings in relation to the child.

(m) Any other fact or circumstance that the Court thinks is relevant

1. As to the parties competing Easter long weekend proposed orders, it will be in the best interests of the child to make the mother’s proposed Easter order because it entails the child spending two nights with the father rather than four nights as proposed by the father; the evidence before the court suggests that the child may not presently cope well spending four consecutive nights with the father.

2. As to the father’s proposals orders for school holiday time with the child,, namely for two weeks during school holidays annually, the evidence presently before the court does not suggest that the child would presently cope spending such an amount of time away from the mother who is the child’s primary carer.  This issue of holiday time between the child and the father should be left to agreement between the parties, as proposed by the mother.

3. The court is of the view that otherwise it will be in the best interests of the child to make the mother’s proposed orders set out in her document headed “(Respondent Mother’s Proposed) Final Orders” document.

Parental responsibility

1. Both parties seek an order for equal shared parental responsibility.

2. No party sought an order for equal time. It would not be in the child’s best interests to be subject to an equal time arrangement noting, inter alia, that the mother has been the child’s primary carer from birth to date, and considering the extent to which the father has spent time with the child post separation. Equal time would not be reasonably practicable noting the parties’ present residential addresses.

3. It would be in the child’s best interests to spend substantial and significant time with the father, “substantial and significant time” being defined under section 65 DAA of the Act, however in view of the father’s employment obligations, it is not reasonably practicable for the child to spend such time with him. In particular, the father has been unable to reliably spend time with the child commencing on the Wednesdays, including the fortnightly overnight time commencing on Wednesday and concluding on the Thursday morning.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following final parenting Orders:

2. All previous parenting orders are discharged.

1. That the Mother and Father have equal shared parental responsibility for the Child X born … 2014 (the Child).

Child’s living arrangements

1. That the Child shall live with the Mother.

Child’s time with the Father

1. That the Child spend time with the Father as follows:

4.1.Each alternative week from 5.30pm on Friday until 5.00pm on Sunday. The Mother (or her nominee) shall deliver the Child to the Father at the Shell service station located at A Street, Suburb B, NSW, on the Friday. The father (or his nominee) shall deliver the Child to the Mother’s home at the conclusion of the Father’s time on the Sunday.

If the Mother or Father’s time with the child commences or concludes

at Day Care, then they shall collect / deliver the Child from Day Care.

4.2.On Father’s Day weekend from 5.00pm on Saturday until 5.00pm on Sunday.

4.3.For the Easter long weekend from 4.00pm on Thursday until 4.00pm on Saturday.

4.4.For years ending in an odd number: On the Child’s birthday (…), if the Child would not otherwise be spending time with the Father on her birthday, from 4.00pm until 7.00pm. Otherwise for years ending on an even number, to be spent with the Mother.

4.5.On the Father’s birthday, if the Child would not otherwise be spending time with the Father on his birthday, from 4.00pm until 8.30pm.

4.6.From 9.00am Christmas Eve until 12.00 noon Christmas Day in years ending on an odd number.

4.7.From 2.00pm Christmas Day until 7.00pm Boxing Day in years ending on an even number.

4.8.At other times as agreed between the Mother and Father from time to time. Once agreed to in writing including by email, text message or other written form, the parties must adhere to the agreement.

Suspension of Father’s time

1. That the Child’s time with the Father pursuant to Order 4 above shall be suspended at the following times when the Child shall remain living with the Mother:

5.1On Mother’s Day weekend from 5.00pm on Saturday until 6.00 pm on Sunday

5.2On the Child’s birthday, if the Mother would not otherwise be spending time with the Child on her birthday, from 8.00am until 4.30pm

5.3On the Mother’s birthday, if the Child would not otherwise be spending

time with the Mother on her birthday, from 4.00pm until 8.30pm

5.4For the Easter long weekend from 4.00pm on Saturday until 6.00pm on Sunday

5.5From 9.00 am Christmas Eve until 2.00pm Christmas Day in years ending in an even number

5.6From 12.00 noon Christmas Day until 7.00 pm Boxing Day in years ending in an odd number

5.7At other times as agreed between the Mother and Father from time to time

Father and Mother’s communication with the Child

1. That the Father and the Mother shall each have liberal and flexible telephone communication with the Child such that:

6.1The Father shall telephone the Child when she is living with the Mother on a number provided by the Mother

6.2The Mother shall telephone the Child when she is living with the Father on a number provided by the Father

6.3That the Mother and the Father shall encourage and facilitate the Child communicating with the other parent pursuant to the provisions of these Orders

1. That to facilitate the Child communicating with the other parent:

7.1Each parent acknowledges that the Child is at liberty to telephone the other parent at any time that does not interfere with the activities and events in each partner’s household, and

7.2Each parent shall provide the Child with access to a telephone and such assistance as the Child may require to communicate with the other parent

Provision of Information about the Child

1. That the Mother and Father shall keep each other advised of their contact telephone numbers

1. That the Mother and Father shall keep each other advised of their residential address and provide each other with no less than 21 days’ notice in writing of any intention to change address

2. That the Mother and Father shall do all things necessary to authorise the Child’s school to provide the other parent, on a regular basis, copies of all school reports, school newsletters and other information regarding the Child’s school activities

3. That the Mother and the Father be entitled to obtain directly from any School attended by the Child or any health or welfare professional or other professional attended by the Child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health or welfare of the Child and for this purpose the Mother and the Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed

4. That the Mother and Father immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child   when the child is in their care, and promptly provide all consents as may be required or      requested by medical professionals for medical treatment. Together with such notice the parent is to provide the name of the hospital, treating medical practitioner and / or medical facility that provided the medical treatment for the Child.

Restraints

1. That the Mother and Father be restrained from:

13.1Speaking or permitting any other person to speak to or about the other parent or member/s of their family in a negative, offensive or unpleasant fashion in the Child’s presence or hearing, and

13.2Causing or allowing the Child to be exposed to harassing, threatening, intimidating or violent behaviour

1. That the Mother and the Father are restrained by injunction from blocking the other parent’s telephone number such that telephone communication is prevented

Overseas travel with the Child

1. That the Mother and Father be permitted to travel outside of the Commonwealth of Australia with the Child provided that they provide the non-travelling parent with at least 4 weeks’ notice in writing, along with:

15.1A copy of the proposed itinerary

15.2Full contact details for the Child whilst they are overseas, including telephone numbers and addresses where they will be staying, and

15.3Obtaining the consent from both the Mother and the Father (which shall not be unreasonably withheld) or Order of the Court

1. Notwithstanding Order 15, the Mother and the Father are restrained by injunction from travelling overseas with the Child to a country that has not signed the Hague Convention on the Civil Aspects of International Child Abduction and in which the Hague Convention is not in force between Australia and that country.

1. That within seven (7) days of being notified of the other parents’ intention to travel with the Child pursuant to Order 15, the non-travelling parent will provide the Child’s Australian passport to the travelling parent, if that is not already in their possession

2. That should a parent require the Child’s passport for the purpose of facilitating travel   overseas (ie booking plane tickets) then within seven (7) days of being notified of the other   parent’s intention to book an overseas holiday with the Child pursuant to Order 15, the non-travelling parent will provide the Child’s passports to the travelling parent, if it is not      already in their possession

1. That when the Child is not travelling, the Mother shall hold the passport for the Child and for this purpose within seven (7) days of returning with the Child from any overseas travel   or completing any acts or things necessary to facilitate the overseas travel, the Father will do all acts and things necessary to deliver the Child’s passport to the Mother

2. That the Mother and the Father shall do all such acts and things and sign all documents necessary to ensure that the Child has a valid Australian passport at all times, with the Father to pay as and when they fall due all fees associated with applying for and obtaining and renewing the passport

3. That during overseas travel with the Child pursuant to these Orders, the time with the Child would ordinarily be spending with the non-travelling parent shall be suspended

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 1 November 2019