Jabeen and Jabeen

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABEEN & JABEEN

[2016] FCCA 2211

Catchwords:
FAMILY LAW – Parenting – interim decision – relocation of a child – mother moved to (omitted) where child’s maternal grandmother lives with child in absence of the consent of the father – father sought child return to Sydney and live with him – mother permitted to stay in (omitted) with the child pending further order of the court.

Legislation:

Family Law Act 1975

Applicant:

MR JABEEN

Respondent:

MS JABEEN

File Number:

SYC 1991 of 2014

Judgment of:

Judge Henderson

Hearing date:

10 August 2016

Date of Last Submission:

10 August 2016

Delivered at:

Sydney

Delivered on:

12 August 2016

REPRESENTATION

Counsel for the Applicant:

Ms Lawson

Solicitors for the Applicant:

MATTHEWS FOLBIGG PTY LTD

Counsel for the Respondent:

Ms Breeze

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The matter is listed into a call over on 23 May 2017 at 9:30am for the allocation of hearing dates.
The child X born (omitted) 2011 live with the mother in (omitted).
The mother will deliver the child to the father’s residence at 5pm on Friday and the father will return the child at 6pm on Sunday, unless he is able to return the child before preschool on Monday, each alternate weekend.
The father may spend an additional weekend with the child in (omitted) each month upon giving the mother 7 days’ notice in writing along with contact details for where the child will be staying and the father will return the child to the mother on Sunday afternoon at 5pm, or to preschool on Monday morning, whichever he is able to accommodate.
The father will determine the school or preschool that the child will attend.
The mother will sign all documents necessary and do all acts and things to ensure the child is enrolled in the school or preschool of the father’s choosing.
The child is to be taken off the roll of enrolment at the primary school A and the primary school B preschool in (omitted).
During the mid-term school holiday periods, the child spend time with the father from 5pm on Friday until 12 noon Wednesday with the mother to deliver the child at the commencement of time and the father to return the child at the cessation of time.
The father will have two blocks of seven nights with the child during 2017 January school holidays and if there is no agreement it will be the first and third week.
The child’s weekend time will be suspended during the January school holiday period.
Thereafter the child is to spend half the school time with each parent and the father’s weekend time with the child will be suspended during school holidays.
Both parties to make an appointment with the child’s paediatrician Dr J, with the father’s solicitors to settle the letter of request, enquiry and information they seek from Dr J which is to include, but not be limited to:
(a)Any ongoing health issue the child has;
(b)The nutrition needs for the child;
(c)Whether the child should have red meat or any other protein in her diet;
(d)Whether dairy should be excluded from the child’s diet; and
(e)Whether the diet as practiced by the mother is appropriate for the child.
Both parties are to comply with any recommendations made by Dr J.
The father’s solicitors will provide a copy of the letter of request to Dr J to the mother at least 7 days prior to the appointment.
Both parties are ordered to facilitate Dr J’s recommendations in relation to the foods to be included and excluded for the child’s diet.
Family Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 7 April 2017.
The Family Report to deal with the following matters:
(a)The benefit to the child of a meaningful relationship with each parent.
(b)The capacity of each parent to protect the child from harm.
(c)The impact on the child and on each parent’s capacity if the allegations they each make against each other of poor behaviour and family violence are found to be correct by the Court.
(d)The capacity of each parent to promote the psychological, emotional and educational wellbeing of the child.
(e)The impact on the child and on her relationship with her mother if the Court made orders as sought by the father.
(f)The impact on the child and on her relationship with her father if the Court made orders as sought by the mother.
(g)The insight of each parent into the child’s needs.
(h)Whether either parent has failed to spend time with the child when they had an opportunity to do so.
(i)The attitude of each parent to the responsibilities of parenthood.
(j)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.
The Family Consultant has leave to view all material produced under subpoena and released for inspection.
The Family Consultant has leave to view all material filed in the proceedings before or after the release of the family report.
The parties have leave to view all material produced under subpoena.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1991 of 2014

MR JABEEN

Applicant

And

MS JABEEN

Respondent

REASONS FOR JUDGMENT

The matter of Jabeen was the mother's application to, on an interim basis; permanently move the child's place of residence from Sydney to (omitted). The father seeks this not occur, and that if the mother wishes to live in (omitted), that the child live with him in Sydney.
Ms Lawson acted for the father and Ms Breeze acted for the mother.
The proceedings concern X, who was born on (omitted) 2011. The parties have had final consent orders since 31 March 2015, whereby:
a)The child would live with the mother.
b)The parties have equal parental responsibility for the child;
c)That the child would spend time with her father on a gradually increasing basis. Order 7.2 states Thursday, any time after 3 pm to 7 pm, which are now overnight, and alternate weekends from Saturday to Sunday with very limited time in the holidays. That time is to increase as X ages.
The matter came before the court, because the father was concerned about the mother's proposal to move to (omitted). It is certainly something the mother has raised with him on many occasions, as she and the child spend a lot of time in (omitted) on holidays , weekends and the like because her mother lives there. The mother has a close connection to that area.
On 29 June 2016, I made orders which were that pending further order the mother was injuncted and restrained from removing the permanent residence of the child, X, born (omitted) 2011 from the Sydney metropolitan area and listed the matter for the interim hearing.
Despite Ms Breeze's assertion that the mother has not permanently removed X's residence, it is now clear the mother and child live in (omitted) in a property owned by the mother and have done so for some period of time. The father was unaware of this, but his suspicions were aroused when he was coming to collect his daughter from where he believed the mother and child were still living at (omitted), from comments the child made to him such as , "I am travelling a long way. I have only got a little bed. I have got no clothes here,"
He was right to be suspicious. It is clear from the father's affidavit of 8 August 2016, paragraph 3(d), that the father had been to the (omitted) address on four occasions. He noticed the balcony was emptied. It had plants on it previously. His child was saying things to him, like, "We have been at (omitted). I am tired, because we have been getting up early and driving from (omitted). I have to tell the Judge we are living at (omitted)." "We had to organise people to move the house out," etcetera, etcetera.
The mother's evidence is she made this move known to the father in her affidavit sealed 9 August 2016 at paragraph 17(e), and she says:
The father has been aware that X and I reside at (omitted) during the school holidays and when X is not with the father.
That in her affidavit sealed 2 August 2016, she asserts at paragraph 22:
I will need to vacate the (omitted) rental property one week prior to the lease expiration of 11 August 2016 to arrange cleaning, which I will need to do myself, pay for carpet cleaning, etcetera. I commute to Sydney each day. I work when residing in my (omitted) residence. During the school holidays, when X is not spending time with her father, I reside in (omitted) with my mother.
Now, that is not confirmation that the mother had moved out. It is an intention to move out, but there is no evidence that the mother could not, in order to comply with the orders I made, have extended her lease on a week to week basis, until at least this hearing date. However, the mother chose not to do that.
Many of the mother's assertions are not supported on the affidavit evidence. The mother has moved in contravention of my orders and the child has been subjected to a five hour commute on the days she attends preschool in (omitted), being the days the mother works and at times when the father collects her. This was not known to the father, as the father thought the child was still living in the Sydney area when she was not.
The evidence I read for the parties was follows
for the mother, two affidavits filed 2 August and 8 August
for the father, two affidavits, filed 24 June and 8 August
the parties' case outline
their responses and application
A voluminous numbers of tenders were made by the father. However, most importantly, from my point of view, Dr J, the child's paediatric material, was very important.
There was various credit card statements of the mother's, the father's case was the mother really was not in a parlous financial position and could remain in Sydney when her case was living in Sydney is just too expensive for her.
primary school B notes of when the child was or was not attending her pre-school are not that relevant to the issues before me issue, save that the father agreed to pay the child's preschool fees, which is quite significant and has been paying them to assist the mother remaining in Sydney when the child has not been attending, as she had been prior to the mother's move.
The mother's veracity, even on an interim basis, is at large at this hearing. Firstly, she has admitted to forging the father's signature on the primary school B preschool forms when the child was enrolled. She maintained to the Child Support Agency this was a joint decision. The father said, "I never signed them. This was not something I agreed to." The mother has admitted in her affidavit material that she forged his signature contrary to what she told the Child Support Agency . She told the Child Support Agency that she had the child 365 nights a year. She does not. The father has her at least four nights a month.
The mother did not tell the father that she had moved to the (omitted) area and the child was doing this long commute and kept up a subterfuge she was still living at the (omitted) property, as that is where changeover was taking place. Changeover could have happened at the child's preschool or somewhere much more convenient to the child if the mother had told the father what had happened. But the mother kept up that subterfuge. The mother had the father agree to and continued allow him to pay the primary school B fees, which are greater than regular preschool fees, when the child's attendance was extremely patchy as is set out in the father's exhibit 2.
The mother said her income was only $42,000 per annum to the Child Support Agency when she is earning, gross, $87,000. The mother asserts she did not have sufficient funds to continue paying rent in Sydney even up till the interim hearing yet in father's exhibit 4, she had $142,000 in the bank on 1 March 2016. I know she has bought a property subsequently, but her evidence as a whole does not sit well for me.
The mother asserted, most particularly, in her affidavit, that her child's paediatrician, Dr J, had advised her as follows. This child was born with some health issues. I would not have said they are particularly serious or of huge import, but she has had very significant reflux. She is a child that withholds and is often constipated. The mother asserts she has a range of intolerances or difficulties with certain food.
If we go to the mother's affidavit of 2 August at paragraph 111, she says this about Dr J and her daughter:
The paediatrician advised the father and X's paternal grandmother that X's sugar intake needed to be kept to a minimum, because of her genetic risk of hyperglycaemia and diabetes -

At paragraph 112:
X has had an iron deficiency since birth, even during the first two years of her life, when she consumed animal meat on a daily basis -
I accept that Dr J has approved the Iron Max supplement which X currently takes as appropriate. .
A vegetarian diet is one thing, but the mother leads a vegan diet lifestyle. That is entirely a matter for her. The mother is not a vegetarian and has been mis-described even by Dr J . She is a vegan. A vegetarian consumes dairy; a vegan does not:
At paragraph 113:
I have consistently articulated that dairy is the biggest problem for X. I would like to clarify that vegan is a lifestyle that views animals as sentient beings -
In regards to X's diet, a well-balance, plant based diet is provided that her paediatrician has assured is more than adequate and X shows no signs of side effect. In fact, her health has dramatically improved as a result of her diet and her medication has reduced significantly.
Paragraph 116:
I have serious concern about the father's attention to X's special dietary needs and concerns about his management of her medical regime.
In her affidavit of 9 August, the mother says this at paragraphs 55 and 60:
Post-separation, I went to see Dr J again, and was surprised that the father had not made any changes in his diet as recommended. Dr J said to heavily reduce dairy, it limits iron absorption. I said, "Well, I will just eliminate it altogether and see if that helps." "Okay," he said, "I will see you in six months, unless there is a significant concerns you have or your GP cannot assist."
Paragraph 60:
I feel the topic of iron is a deflection from the father from the root cause to X's dietary issues when spending time with the father, which includes dairy and sugar. X has side effects from these two, it is very clear and consistent, which increases her symptoms when consumed in high quantity or frequency.
Going to Dr J's notes, which is court exhibit A1, Dr J's first report is dated 11 May 2015:
I met X. She struggles with symptoms of chronic constipation and breakthrough reflux, leading to significant hunger pains.
They are the two health issues form which she suffers .
Her weight was greater than it should have been for her height, and she has a degree of liver enlargement. I explained that although her diet is very healthy, it is still excessive for her growth and has led to a degree of liver enlargement. I explained the perceived intolerance is due to faecal loading. This then allows any form of carbohydrate to ferment, produce wind, giving X some distension and discomfort. Once the faecal loading is treated more aggressively, she can tolerate most food products. Therefore, an elimination diet will not be necessary.
I also explained the importance of having a degree of red meat intake, as it is the most natural form of iron possible. The low iron level will otherwise lead to periodic limb movement disorder, which will disrupt her sleep, something the mother complains of. Treated with Somac.
Besides the liver enlargement and faecal loading, no other abnormalities on examination today. My recommendation would be obviously to be to have a degree of red meat intake, but this is not compulsory.
That is what Dr J said, not what the mother said he said in her affidavit that an elimination diet was necessary or that not having any red meat was acceptable
On 26 August 2015 Dr J saw X again .:
I reviewed X today in my rooms. From a reflux point of view, she is doing well. Dramatic improvement in her leg pain and restless leg symptoms. starting iron supplements, confirming my suspicion. This is obviously necessary because of mum’s choice as a vegetarian. I suspect the iron max she is still on may not be still enough .With less sugar in her diet and healthy intake her liver span is now down to 8 cm ….
I accept the mother is a "vegan":I
The mother's take on what Dr J said has been coloured by her own view. Dr J position is clear. X should be eating a quantity of red meat in her diet. X she has no intolerance to lactose, dairy or animal products. That she had a fatty liver, her reflux is well controlled by Somac and she suffers from constipation.
The issue of sugar in the diet is interesting. The child has been in the primary care of her mother when she has had some overweight issues and should not be having sugar in her diet, yet seeks to blame the father for that situation in her affidavit. That cannot be correct, when the child effectively lives with her mother most of her time. It is clear this issue has arisen in the mother's home and, to assert that if the father has given her lollies on the limited time he has with her that this would cause her to have weight gain and other issues is not made out on the evidence.
Dr J advised against an elimination diet on 11 May 2105 and highlighted the importance of a degree of red meat in the child’s diet. Only after several requests to Ms Breeze did I finally get, and the father finally hear the words, "The child does not eat red meat when in my care." That is, in the mother's care. From the diet that the mother describes in her affidavit for X, she clearly eats no meat at all, let alone red meat. No protein by way of meat. No chicken, fish or even eggs.
The reason Dr J became involved with the child in 2015 was that the mother made a report to the Department of Community Services in February 2015 as when she came back from a weekend with her dad she was severely constipated. When she had faecal movement there was blood in her stools. The mother refers to that in her affidavit 27 March 2015. The mother reported she was concerned about this and made a report to the Department. They then issued a risk of harm and she went to see Dr J as a result of that report.
Rather than ringing the father and saying, "Look, she is really constipated. What were you feeding her?" there is a report made to the Department. This evidence is in the mother's own affidavit at paragraph 14, her affidavit of 2 August 2016. It was an extraordinary response to a situation that the mother knows the child has. The child has always suffered from constipation. Nothing came of her notification .
The mother makes much complaint about the father's violence, poor behaviour directed towards her, witnessed by the child, drinking alcohol to excess, binge drinking and the like during their relationship. The difficulty for me with that evidence is this is behaviour pre the consent orders in March 2015. The Mother knew all this and yet the orders were made. Since that time, there is are no reports of the father behaving in this fashion by the mother, other than the mother saying the child complains to her that the father and his current girlfriend fight and yell and she does not like that. I cannot test that evidence today.

The father in stark contrast to the mother has been very open about his prior problems in the past, and he has attached psychological notes and assessments setting out treatment he has had and his behaviours, including his binge drinking. The report is quite a comprehensive. He did not need to attach this report to his affidavit, but it demonstrates his openness and willingness to address these issues and the positive progress he has made.
Neither parent trusts the other. The mother believes the father is a risk to the child, and I struggle to see any current evidence of this child being at risk in her father's care. The father asserts the mother is a risk to the child, in particular imposing her vegan diet on the child, her inability to acknowledge the father's important role in the child's life and there is some evidence to support those concerns. The mother is put on notice today, being a child's primary carer is not carte blanche to make all the decisions for a child in the absence of consultation with the other parent. Just because you are a primary carer, does not mean you rule the world for your child.
The mother's opinion on issues such as X's diet and schooling carries no greater weight than the father's. They are equal at law and that has not been the way that X has been parented. The parents do not communicate directly. However, they can email and SMS each other, which they do frequently. The mother says that she has made attempts to communicate with him, but he rebuffs her. She just can’t communicate with him despite trying . However, the hard evidence is the opposite and supports the father's assertion that the mother will not communicate with him; that he was excluded from the child's life or felt excluded when she was born and that this continues today; that the mother makes all the decisions in his absence.
His position is confirmed by the hard evidence at page 43 of the father's affidavit of 24 June, which is an email the father sent to the mother on 16 February. Now, I do not agree with his opening comment in that:
Please, firstly, refer to me as (Mr Jabeen) from now on. I find it insulting and disrespectful to be called (omitted) by you.
I do not think that is a proper approach to the mother of your child either. So there is some evidence that these parents do not have much respect for each other:
I am not your friend and we do not have a good relationship. There is no trust or openness amongst us.
This opening paragraph clearly sets the scene . The father goes on to talk about issues he did not understand. That there was other people living in the home, because his daughter told him. He did not know that this was happening. That he does not understand why it is very important for the mother to know what he does with their child when she is with him, but the mother would not communicate with him about what happens when the child is with the mother, even if he makes a request. It is quite a long email. It raises proper issues. It is not particularly friendly, but neither is it rude or disgusting or discourteous.
The mother's response:
I started reading your email, but I cannot be bothered finishing it.
This not the father not communicating, but the mother not communicating with the father. Then we have the email of 18 June 2106 where the mother simply tells the father:
Hi (Mr Jabeen), X will be permanently residing with my mother and I at the following address: (omitted). Please note where changeovers will be. X will be enrolled in the prekindergarten program for three days at the primary school A.
X will continue with dance lessons in The (college omitted) this term. If you wish to take her or not, it is up to you.
Change of residence does not impact the court orders and your consent for me and X to relocate is not applicable or required. We are not moving interstate or overseas.
The father’s case that the mother just gives him an ultimatum about what is happening is made out on his material. That is exactly how the mother has treated the father, I suspect, throughout the relationship and the marriage, when it comes to matters of the child.
The mother's own views about a vegan diet as being appropriate for a growing child is clearly contraindicated by Dr J. It is not appropriate for a growing child. The father does have cause for concern that the child may be at risk in her mother's care, if not only from a vegan diet but also because the mother's needs or capacity to separate what is right for her and what is right for her daughter appear to be blurred.
There is also the issue of the mother not respecting or having a high degree of understanding of the importance of the father in the child's life. The father says:
If I allow the mother to live in (omitted) with the child, these matters will become even more entrenched -
and that he believes his child's relationship will suffer and he will be further marginalised by the mother.
However, before I make any decision I must go to the Act, and I have to look at the competing proposals which are.
The mother and child remain in (omitted)
If I cause the mother to return to Sydney she will return with the child
Or if I - as the father wishes me to on an interim basis - remove the child to the father's care.
Going to the Act, I will not rebut the presumption of equal shared parental responsibilities. There is an order in place for that .
There are currently orders about the time the father is to spend with the child. I may have to vary those orders, depending upon what order I make about the child and where she is to live.
The child benefits from the meaningful relationship with each of her parents, that is clear, and the father is just as important in the child's life as is the mother.
There are some risk factors for the child. The mother asserts those risk factors are that the father and his girlfriend fight and yell. I cannot assess that today, but she says this was the nature of their relationship and she is not surprised that that is the sort of relationship he has with his current girlfriend. Today I cannot make a finding.
There are risks to the child from the mother in her dietary exclusions and lack of involvement of the father in the decisions for the child and she might be appalled to hear this. Her needs are not necessarily the right needs for her daughter and she must look at her daughter as her own person and having separate needs to herself.
The child is too young to express a wish and it would be irrelevant in this matter.
Both the parents have capacity and insight to the needs of their child, to educate her, to provide for her emotionally and psychologically, and I cannot see that in that sense she is at risk of harm in either parents' household; neither do I see she is at risk of any physical harm or witnessing physical harm from someone else in either parents' household on the evidence I have before me.

The Impact of Change

As to father’s application for the child to live with him. To cause this little girl, age 5, to live with her father because of the risks that the father has alerted me to, which I have accepted, would be a significant, dramatic upheaval in her life. She is only five. She has always lived with her mother. She still only spends limited time with her father. The risks that the father has identified are not sufficient for me to warrant changing a child's residence on an interim basis, given I cannot address what this would mean for the child. To remove this child from her mother's care at such a young age may significantly impact upon her capacity to form relationships with her father and other people in the future and damage her primary relationship, which is clearly with her mother.
So I do not today see that these risk factors are such that I should change her residence without the benefit of a family report as to the possible impact of such a change on the child and whether this would increase the risk of harm and without being able to test the evidence. My decision may be very different at the final hearing. That may be a very different thing, but this is an interim hearing and I am limited in what I can do.
The matters raised by the father on the mother's lack of veracity are cause for concern. However, it may not have been from the mother's point of view not an intentional misleading. It seems to me, from the sort of person the mother is, her view, her way, is the only way yet it is not. There are a millions of different options and ways to look at things, and you must carefully read what people tell you and not translate it and just cherry pick what you want to support your position, but look at what the reality is, particularly with someone like Dr J, a paediatrician.
Her evidence of the father's violence in AVO proceedings was not accepted by the Magistrate and the AVO proceedings were dismissed. Although that decision is not determinative of whether he is a risk to a child or a parent it is a matter that will be looked at a final hearing. This issue will weigh very heavily on my mind for the orders I make into the future, because it is most important that the parents are able to be open and honest about what is happening.
The issue of the mother's veracity or need to have her view accepted or maintained or put forward is a concern when it comes to the mother's capacity to put her child's needs before her own. Having said that she is a very devoted mother. Thus there is a quandary and a disconnect here. The mother's vegan lifestyle is purely a matter for her, and I make no criticism, but it is not just a matter for the mother to impose this diet upon the child when the father disagrees and there is medical evidence that it is not appropriate.
This is a serious defect in the mother's capacity, but as I have said, to cause the child to move to her father's care would be, as I see it today, the greatest impost of a negative consequence upon the child. The mother can retrieve her prior poor behaviours by changing the child's diets, by reflecting, and looking at what has happened and involving the father.
The mother's attitude to enrolling the child at a school she chose, primary school A, which promotes a vegetarian lifestyle, is not something the father agrees with. That was rather highhanded and inappropriate, but the mother has been told that this is not the way to co-parent a child and that both parents have to look at these matters. Where a child attends school is a very important decision for parents, very important indeed.
Going now to the issue of re-location.
The mother says she cannot afford to live in Sydney. She has expended money she had in March/April 2016 and bought a house. She does not have that money left now, she says. I accept her income and financial resources do make it difficult for her to rent in Sydney and pay other necessary outgoings. It is clear she and her daughter have lived at (omitted) for a substantial part of the child's life. It is an area the child is well used to and in a home she is well used to. She has a good relationship with her grandmother.
The mother is not seeking to take the child to an unknown environment and it is (omitted) and not (omitted). It is a couple of hours on the freeway.
This is an interim hearing. It is a relocation matter and is very difficult for me to determine without testing evidence. This is a finely balanced matter, as they always are.
The options are the mother relocates back to Sydney with the child or the mother and child stay in (omitted). I will not make an order for the child to live with the father. If I order the mother to relocate, she will use her best endeavours to do that, and she would return with the child of that I am certain.
If the mother remains in (omitted) the father's time with the child will be reduced, because he is having Thursday nights overnight now. He is only going to have alternate weekend time, if the child lives in (omitted). However, I have formed the view that although this will be a change for her, I do not see that it will significantly impact upon their relationship, which is growing and strengthening. I accept X has a wonderful time in her father's home and it is very important she has that different exposure in her father's home. However this is a change and it is less time than the child has been used to and the father has enjoyed and from which the child has benefited.
On the other hand I have formed a view that the dislocation and clear unhappiness of the mother if she is forced to return to Sydney with her child, living in very straightened financial circumstances, in a place she has not wished to live in for some time, which is clear on her evidence and by her actions, would have a very negative impact upon the child, because her mother is her primary carer, and it will impact upon her parenting of this child. Given it may be 18 months before a final hearing can be had, that consequence may be most deleterious for this child. For those reasons I have formed the view on the finest of balances that it is appropriate today for an order that is in the child's best interest that she remain living with her mother in (omitted).
Having so found I propose to make the following orders
The mother will deliver the child to the father's home at 5 pm on a Friday and the father will return his daughter to the mother's home at 6 pm Sunday or if he is able to manage his work, he may return his daughter to school or preschool on Monday morning at 10/10.30, whenever he able to get up to the freeway and have that additional night with his daughter. That is a matter for him and to advise the mother if he is able to do that each alternate weekend.
The father may spend an additional weekend with the child each month in (omitted) by giving the mother seven days’ notice of his intention to do so, the details of where he will be staying, contact telephone number and the father will take the child to school or preschool on Monday morning before returning to Sydney, if he is able to achieve that, but he will tell the mother if he can or cannot.
Secondly, the father will determine the school and/or preschool the child attends, not the mother. This is an important decision and I want X's dad to make that decision for her, and the mother will then sign all documents necessary, such that the child is enrolled at the preschool or school of the father's choosing. The child is to be unenrolled or taken off the role of enrolment at the primary school A and the child will no longer attend the primary school B at (omitted) and she is to be unenrolled from that school as well.
The father's holiday time will ramp up. It was not until 2022 that the child was having proper holiday times with her dad and that was improper. This child's relationship with her father is growing well, and given she is going to be in (omitted), it is most important she spends as much time as she can with her dad, and that will be in the school holidays.
The father will have five nights with the child in each

mid-term school holiday in 2016 being a continuation from his usual weekend time. From Friday 5 pm to 12 noon Wednesday, when the parents will exchange to meet the child.
I do not know if the father wishes to return the child to the mother at 12 noon Wednesday to her home. It seems to be that might be most appropriate. The mother delivers the child to the father at 5 pm Friday at the commencement of his holiday time and the father returns her to her mum at 12 noon Wednesday.
The father will have two blocks of seven nights with the child in the coming January school holidays in 2017. If the parties cannot agree on when that is to be, that will be the first and third week of January. The father's usual weekend time will be suspended in January 2017, but he will have his alternate weekend continue up until January 2017.
Thereafter, the child is to spend half the school holidays with each parent, and the father's alternate weekend time is suspended during school holidays. So come 2017 X will go straight into alternate school holidays with her parents. That seems to me the appropriate ramping up of this child's time in holidays with her father.
I will order a family report be prepared and list this matter in my callover in 2017 in relation to the father's application that the child live with him in Sydney and the mother's application she live with her in (omitted).
Both parties to make an appointment with the child's paediatrician, Dr J;
The solicitors for the husband to settle the letter of request and inquiry and information they seek from Dr J, which is to be at minimum the following, but not limited to
Any ongoing health issue the child has;
The nutrition needs for the child;
Whether the child should have red meat or any other protein in her diet;
Whether dairy should be excluded from the child's diet;
Whether the diet as practiced by the mother is appropriate for the child;
Both parties will be required to comply with the recommendations made by Dr J in relation to the child's dietary needs;
The father's solicitors will provide a copy of the letter they are going to send to Dr J to you, madam, so you know what they are asking him seven days prior to the appointment being made.
Both parties are ordered to facilitate Dr J's recommendations as to the foods to be included or excluded from their daughter's diet.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 25 August 2016

[2016] FCCA 2211

12 August 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

Remedies