Jameson & Mooney
[2022] FedCFamC2F 174
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jameson & Mooney [2022] FedCFamC2F 174
File number: MLC 12299 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – CHILDREN – RELOCATION – where the Mother moved to New South Wales with the child following separation – where the parties now have a second child who was born in New South Wales – where the Father seeks the Mother and children return to live in the state of Victoria – where the Mother is the uncontested resident parent irrespective of where they will be residing – where the Father does not propose to move to New South Wales – where the Father has perpetrated family violence – where the Mother has support networks in New South Wales and not in Victoria – where one of the children has special needs and the other is very young – consideration of the best interests of the children – finding that any order for the Mother to relocate back to Victoria would be coercive in nature – Orders made allowing the Mother and children to continue living in New South Wales and for the children to spend time with the Father. Legislation: Family Law Act 1975 ss 60B, 60CC Cases cited: Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26; (1999) 199 CLR 160
Asher & Wilkinson [2020] FamCAFC 44
Chapman and Palmer (1978) FLC 90-510; [1978] FamCA 86
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders [2007] FamCA 102
In the marriage of Fooks & McCarthy (1994) FLC 92-450
Kuan v Toh (2016) FamCAFC 115
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright (2007) 37 FamLR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Morgan & Miles (2007) 312 FLR 114
Oswald & Karrington [2016] FamCAFC 152
Sampson and Hartnett (No. 10) [2007] FamCA 1365
Sayer & Radcliffe & Anor (2012) 48 Fam LR 298
U v U [2002] HCA 36; (2002) 211 CLR 238
Vontek & Vontek [2017] FamCAFC 28
Division: Division 2 Family Law Number of paragraphs: 342 Date of hearing: 23-25 November 2021 Place: Parramatta Counsel for the Applicant: Ms Byrnes Solicitor for the Applicant: Borchard and Moore Counsel for the Respondent: Mr Mooney Solicitor for the Respondent: Access Family Law Pty Ltd ORDERS
MLC 12299 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JAMESON
Applicant
AND: MS MOONEY
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All prior Orders as to the parenting of the children X born in 2013 and Y born in 2021 (“the children”) are discharged.
2.The Mother shall have sole parental responsibility for the children.
LIVE WITH/SPEND TIME WITH
3.The children shall live with the Mother.
4.X shall spend time with the Father as agreed between the parties in writing and failing agreement as follows:-
(a)During school terms and commencing on the second Friday of each calendar month from Friday afternoon to Sunday afternoon with such time to occur in New South Wales. In the event that the Friday is a public holiday or non-school day then such time will commence on the preceding Thursday afternoon and in the event the Monday is a public holiday or non-school day then such time will conclude on the Monday afternoon.
(b)During school terms and commencing on the fourth Friday of each calendar month from Friday afternoon to Sunday afternoon with such time to occur in Victoria. In the event that the Friday is a public holiday or non-school day then such time will commence on the preceding Thursday afternoon and in the event the following Monday is a public holiday or non-school day then such time will conclude on the Monday afternoon.
(c)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for additional time on no more than 12 occasions each calendar year from Thursday afternoon to the commencement of school on Monday morning.
(d)From the morning of the first Saturday of all the short New South Wales school holiday periods (being the conclusion of Term 1, Term 2 and Term 3) to the afternoon of the second Tuesday of such school holiday period.
(e)For one half of the long summer New South Wales school holiday period being for the first half in even numbered years and the last half in odd numbered years. The school holiday period for this purpose is deemed to commence on the morning of the day after school concludes for the term and conclude at 6:00 pm two days prior to school commencing for the following term.
(f)On the weekend that Father’s Day falls each year from Friday afternoon to Sunday afternoon with such time to occur in Victoria and time with the Mother will be suspended for this weekend each year.
5.X’s time with the Father shall be suspended each year on the weekend that Mother’s Day falls.
6.Y shall spend time with the Father as agreed between the parties in writing and failing agreement as follows:-
(a)from the date of these Orders until 2 May 2022:-
(i)During school terms and commencing from the second Friday of each calendar month each Friday, Saturday and Sunday for 1 hour with such time to occur in New South Wales at a location agreed to between the parties and with the Mother to be present. In the event the parties are unable to agree as to the location time will occur, then such time will occur on the Friday at City B airport and on the Saturday and Sunday at the McDonalds Restaurant closest to the Mother’s residence. In the event that the Friday is a public holiday or non-school day then such time will also occur on the Thursday afternoon at City B airport and in the event the Monday is a public holiday or non-school day then such time will also include the Monday at the McDonald’s Restaurant closest to the Mother’s residence.
(ii)During school terms and commencing from the fourth Friday of each calendar month each Friday, Saturday and Sunday for 1 hour with such time to occur in Victoria at a location agreed to between the parties and with the Mother to be present. In the event the parties are unable to agree as to the location time will occur, then such time will occur on the Friday at Melbourne airport and on the Saturday and Sunday at the McDonalds Restaurant closest to the Father’s residence. In the event that the Friday is a public holiday or non-school day then such time will also occur on the Thursday afternoon at Melbourne airport and in the event the Monday is a public holiday or non-school day then such time will also occur on the Monday at the McDonald’s closest to the Father’s residence.
(iii)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for 1 hour on each day that the Father is spending time with X pursuant to Order 4(c) above with the Mother to be present with such time to occur at a location as agreed to between the parties and failing agreement at the McDonalds Restaurant closest to the Mother’s residence.
(iv)During all New South Wales school holiday periods as agreed between the parties but failing agreement from 9:00 am to 10:00 am each day for the first 5 days that X is spending holiday time with the Father pursuant to Orders 4(d) and 4(e) above.
(b)from 3 May 2022 until 8 August 2022:-
(i)During school terms and commencing the second Friday of each calendar month for a period of 1 hour on such Friday at a location agreed to between the parties and in the event the parties are unable to agree as to the location then such time will occur at City B airport, and from 9:00 am to 11:00 am on the immediate Saturday and Sunday of each such weekend with such time to occur in New South Wales. In the event that the Friday is a public holiday or non-school day for X then such time will occur on the Thursday afternoon for a period of 1 hour at City B airport and from 9:00 am to 11:00 am in each of the Friday, Saturday and Sunday. In the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 11:00 am.
(ii)During school terms and commencing the fourth Friday of each calendar month for a period of 1 hour at a location agreed to between the parties and in the event the parties are unable to agree as to the location then such time will occur at Melbourne airport and from 9:00 am to 11:00 am on the Saturday and Sunday of each such weekend with such time to occur in Victoria at a place agreed to between the parties. In the event that the Friday is a public holiday or non-school day for X then such time will occur on the Thursday afternoon for a period of 1 hour at Melbourne airport and from 9:00 am to 11:00 am in each of the Friday, Saturday and Sunday. In the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 11:00 am.
(iii)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for 2 hours on each day that the Father is spending time with X pursuant to Order 4(c) above.
(iv)During all New South Wales school holiday periods as agreed between the parties but failing agreement from 9:00 am to 11:00 am each day for the first 5 days that X is spending holiday time with the Father pursuant to Orders 4(d) and 4(e) above.
(c)From 9 August 2022 until 4 January 2023:-
(i)During school terms and commencing the second Friday of each calendar month each Saturday and Sunday from 9:00 am to 2:00 pm with such time to occur in New South Wales. In the event that the Friday is a public holiday or non-school day for X then such time will also occur on the Friday from 9:00 am to 2:00 pm and in the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 2:00 pm.
(ii)During school terms and commencing the fourth Friday of each calendar month each Saturday and Sunday from 9:00 am to 2:00 pm with such time to occur in Victoria. In the event that the Friday is a public holiday or non-school day for X then such time will also occur on the Friday from 9:00 am to 2:00 pm and in the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 2:00 pm.
(iii)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for 4 hours on each day that the Father is spending time with X pursuant to Order 4(c) above.
(iv)During all New South Wales school holiday periods as agreed between the parties but failing agreement from 9:00 am to 2:00 pm each day for the first 5 days that X is spending holiday time with the Father pursuant to Orders 4(d) and 4(e) above.
(d)From 5 January 2023 until 4 January 2024:-
(i)During school terms and commencing the second Friday of each calendar month each Saturday and Sunday from 9:00 am to 4:00 pm with such time to occur in New South Wales. In the event that the Friday is a public holiday or non-school day for X then such time will also occur on the Friday from 9:00 am to 4:00 pm and in the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 4:00 pm.
(ii)During school terms and commencing the fourth Friday of each calendar month each Saturday and Sunday from 9:00 am to 4:00 pm with such time to occur in Victoria. In the event that the Friday is a public holiday or non-school day for X then such time will also occur on the Friday from 9:00 am to 4:00 pm and in the event the Monday is a public holiday or non-school day for X then such time will also occur on the Monday from 9:00 am to 4:00 pm.
(iii)During all New South Wales school holiday periods from 9:00 am to 4:00 pm each day for the first 5 days that X is spending holiday time with the Father pursuant to Orders 4(d) and 4(e) above.
(iv)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then from 9:00 am to 4:00 pm on each full day that the Father is spending time with X pursuant to Order 4(c) above.
(e)From 5 January 2024 until 4 June 2024 as follows:-
(i)During school terms and commencing the second Friday of each calendar month from Saturday 9:00 am to Sunday afternoon with such time to occur in New South Wales.
(ii)During school terms and commencing the fourth Friday of each calendar month from Saturday 9:00 am to Sunday afternoon with such time to occur in Victoria.
(iii)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for additional time from Saturday 9:00 am to Sunday afternoon on each occasion that the Father is spending time with X pursuant to Order 4(c) above.
(iv)During all New South Wales school holiday periods from 9:00 am on the first day that X spends holiday time with the Father pursuant to Orders 4(d) and 4(e) above to 4:00 pm three days later.
(f)From 5 June 2024 until 4 January 2025 as follows:-
(i)During school terms and commencing the second Friday of each calendar month from Friday afternoon to Sunday afternoon with such time to occur in New South Wales. In the event that the Friday is a public holiday then such time will commence on the Thursday afternoon and in the event the Monday is a public holiday then such time will conclude on the Monday afternoon.
(ii)During school terms and commencing the fourth Friday of each calendar month from Friday afternoon to Sunday afternoon with such time to occur in Victoria. In the event that the Friday is a public holiday then such time will commence on the Thursday afternoon and in the event the Monday is a public holiday then such time will conclude on the Monday afternoon.
(iii)In the event the Father travels to New South Wales during school terms and provides the Mother with 7 days written notice, then for additional time from Thursday afternoon or Friday afternoon to Sunday afternoon or the commencement of school on Monday morning with the Father to provide the Mother his election as to the commencement and conclusion of such time no later than 7 days prior to such time commencing.
(iv)From the morning of the first Saturday of all the short New South Wales school holiday periods (being the conclusion of Term 1, Term 2 and Term 3) to 4:00 pm 5 days later.
(v)From the morning of the day after school concludes for the New South Wales Term 4 summer holiday period until 4:00 pm 7 days later.
(g)As and from 5 January 2025 Y will spend time with the Father in accordance with Orders 4 and 5 above.
TRAVEL AND CHANGEOVER
7.For the purposes of X’s time with the Father, the parties will do all things necessary to have X travel to and from the Father’s residence under the “unaccompanied minor’s program” through Qantas or such other airline as agreed between the parties.
8.For the purposes of Y’s time with the Father, the parties will do all things necessary to have Y travel to and from the Father’s residence under the “unaccompanied minor’s program” through Qantas or such other airline as agreed between the parties as and from 5 January 2025.
9.The parties will do all things necessary to ensure that the children will fly to and from Melbourne and City B airports when their time with the Father is to occur in Victoria pursuant to these Orders.
10.When the children’s time with the Father is occurring in New South Wales, changeover of the children between the parties shall take place as agreed between the parties or failing agreement at the children’s school/pre school/day care if appropriate, City B airport if time is to occur there, or the McDonalds closest to the Mother’s usual place of residence.
11.When the children’s time with the Father is occurring in Victoria changeover of the children between the parties shall take place as agreed between the parties or failing agreement at Melbourne airport.
12.For the purposes of these Orders, the parties will use their best endeavours to put the child/ren on a flight during school terms:-
(a)By no later than 4:00 pm when departing from Melbourne should the following day require the child/ren’s attendance at school to ensure they arrive at a reasonable hour in New South Wales; and
(b)By no later than 5:30 pm when departing from City B to ensure they arrive at a reasonable hour in Victoria.
FACETIME/TELEPHONE TIME
13.That until 4 January 2025 the children shall have Facetime with the Father when he is not otherwise spending time with them each Tuesday, Thursday and Saturday at such times as agreed between the parties and failing agreement from 4:00 pm to 4:30 pm. When X only is in the care of the Father, Y only will continue to have such Facetime with the Father. For this purpose the Father is to call the Mother’s nominated telephone number and the Mother will facilitate the children being available to answer the telephone.
14.As and from 5 January 2025 the children shall have Facetime with the Father when he is not otherwise spending time with them each Tuesday, Thursday and Saturday at such times as agreed between the parties and failing agreement from 4:30 pm to 5:30 pm and for this purpose the Father is to call the Mother’s nominated telephone number and the Mother will facilitate the children being available to answer the telephone.
15.The children shall have Facetime with the Father at 4:30 pm each year on the first day of Term 1 of the New South Wales school year.
16.That the children shall have Facetime each year with the parent not caring for them at 9:00 am on the following days:-
(a)Christmas Day;
(b)each of the children’s birthdays;
(c)each of the parties’ birthdays; and
(d)Easter Day.
EXPENSES
17.The costs of the children’s flights to and from Victoria to see the Father will be shared equally between the parties and for this purpose:
(a)The Mother shall pay for such costs on the first occasion the children travel to Victoria and each alternate occasion thereafter; and
(b)The Father shall pay for such costs on the second occasion the children travel to Victoria and each alternate occasion thereafter;
and each party shall notify the other party of the child/ren’s flight schedules at least 7 days in advance of such travel.
18.Each party shall bear the cost of their own travel.
SURNAME
19.The child X (male) born in 2013 shall be henceforth known as X Jameson-Mooney.
20.The Mother, Ms Mooney, is authorised to apply to the Registrar of Births Deaths and Marriages in Victoria that the child registered as X (male) born in 2013 be now registered as X Jameson-Mooney.
21.Pursuant s 23 (2) of the Births, Deaths and Marriages Registration Act 1996 (VIC) the Registrar register the child’s name in the form specified in Order 19 herein.
22.The Mother is to forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages of Victoria.
MEDICAL AND EDUCATIONAL
23.Each of the parties shall advise the other within 2 hours of any medical emergency arising with respect to either of the children, with such advices to include details of all medical treating practitioners the children have attended upon and any medical treatment provided.
24.Each of the parties shall advise the other within 24 hours of any medical, behavioural and/or scholastic issue of the children and authorise any professional and/or institution treating the children to communicate with the other parent with respect to same.
25.That the Mother authorise the children’s learning institutions to communicate with the Father and provide to the Father directly copies of all communications from the school with respect to the children.
26.That the Father be permitted to attend any of the children’s extracurricular activities, and school functions ordinarily attended by parents and assist at the children’s school as permitted by the school.
MISCELLANEOUS
27.Each party shall keep the other party advised at all times of their current mobile telephone number.
28.That within 24 hours of the date of these Orders the parties download and communicate with each other as to the children through the “Our Family Wizard” application.
29.That the parties do all things necessary to undertake and complete in a timely manner the:-
(a)“Circle of Security” Program through C Counsellors by telephoning …; and
(b)the “Watch, Wait and Wonder” program through
and shall provide written evidence of completion of such courses to the other party.
30.Both parties are restrained from:-
(a)abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so; and
(b)discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
31.All Applications are otherwise dismissed and the matter is removed from the pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jameson & Mooney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
At the time of separation in September 2020 the parties and X born in 2013 (“X”) were living in the former matrimonial home in Suburb D, Victoria. The Father now lives at the home of the paternal grandparents in Suburb E, Victoria.
Since 10 October 2020 (and subsequent to their release from two weeks quarantine) the Mother and X have been living in Suburb F, on the Region G of New South Wales. Y born in 2021 (“Y”) was born subsequent to the parties’ separation in New South Wales.
The Applicant Father seeks an Order that the children and the Mother be required to relocate back to Victoria. The Mother seeks Orders that she and the children remain living in New South Wales. Whilst not her proposal, the Mother will relocate from New South Wales to Victoria with the children if the Court orders that she do so. The Father will not relocate to New South Wales if the Court determines that it is in the children’s best interests that they remain in New South Wales.
It is uncontroversial that the children will live with the Mother. The Father does not, in any circumstance, propose that the children will live with him - the Mother is the uncontested resident parent.
For the reasons as set out below, the Court finds that on balance, the children’s best interests are not promoted by a coercive Order requiring the Mother, as the uncontested resident parent, to relocate with the children to live in the state of Victoria.
THE PARTIES’ PROPOSALS
At the commencement of the Trial the Applicant Father sought orders in accordance with his Further Amended Initiating Application filed on 12 November 2021. The Father had a single proposal that the children live with the Mother in Victoria and spend specified time with him. He did not propose an alternate parenting regime in the event the Court determined it was in the best interests of the children that they remain living in New South Wales.
As a result of being asked as to the Father’s position in the event it was found to be in the children’s best interests to remain living in New South Wales, the Court was provided with alternate Orders, marked as Exhibit F2. The Father’s further amending set of proposed Orders was marked as Exhibit F3.
The Father’s final proposed set of Orders (Exhibit F4) was tendered without objection on the last day of the trial and subsequent to the parties’ cross examination. The final version of the Orders sought by the Father are set out in Attachment A. The Father seeks an Order that the children and the Mother live in Victoria. There is no further specificity as to location sought.
The final Orders sought by the Mother are set out in Attachment B. It is the unequivocal position of the Mother that she opposes an order that she and the children live in Victoria. The Mother’s alternate position with respect to orders she seeks in the event the children and herself are ordered to live in Victoria was proffered solely to comply with a direction by the Court that she advise the Court of the orders she sought in the event the Court determines that it is in the children’s best interests that she and the children live in Victoria.
THE ISSUES
The parties agree that:
·They will have equal shared parental responsibility for the children.
·The children shall live with the Mother irrespective of whether that is in New South Wales or Victoria.
·Irrespective of what state the children are living in, X will have at least alternate weekend and block school holiday time with the Father together with times on special occasions.
·Y’s time with the Father will be graduated and at some stage she will spend the same time with the Father as X.
·If the children are living in New South Wales the parties agree that both children will spend (once Y has the same time regime as X) each alternate weekend with the Father from Friday afternoon to Sunday afternoon. It is further agreed that there will be no mid-week time between the children and the Father.
·Whilst the nature of the graduated regime of time Y has with the Father is not agreed, the parties do agree that Y will have day only time until she is 2 years of age and that by the age of 4 years Y will have the same regime of time with the Father as X.
·The parties will attend post separation programs as sought by the Father.
·If the children are living in New South Wales both parties agree to share equally in the costs of the children’s transport for the time they spend with the Father.
I raised with each of the parties during the course of final submissions the issue of the allocation of equal shared parental responsibility having regard to the evidence.
Thus, the issues for the Court to consider and determine are:-
·The allocation of parental responsibility between the parties.
·Whether the children and the Mother are to continue living in or New South Wales or be ordered to relocate to Victoria to live.
·As an adjunct to the competing proposals as to the state in which the children and the Mother reside, the specific time that the children spend with the Father in Victoria. If the children are living in Victoria the Father proposes that the children will spend (once Y has the same regime as X) alternate weekends with him from Thursday afternoon to Sunday afternoon. The Mother proposes that alternate weekend time shall commence on a Friday afternoon and conclude on a Sunday afternoon. The Father further proposes mid-week time in the alternate week overnight on a Thursday. The Mother does not propose any mid-week time.
·The parties disagree as to the terms of the graduating time between Y and the Father irrespective of where Y is living.
·If the children continue to live in New South Wales, the specific arrangements for travel with respect to each of the children including if and when the children travel accompanied by the Mother and/or pursuant to the unaccompanied minors program. The Mother seeks a specific Order that X continue to fly through the unaccompanied minors program with Y joining him in the year 2025. The Mother proposes that she will accompany Y to spend time with the Father until the year 2025. The Father does not seek any Orders with respect to this issue.
·If the children remain living in New South Wales, whether the parties should also equally share in the cost of the Mother’s flights to Victoria when she is accompanying Y for time with the Father.
·The location of changeover of the children between the parties if the children are living in Victoria.
·Whether telephone time between the children and the parties occurs “as agreed between the parties” or at specified times.
·Whether X’s surname should be changed from “Jameson” to “Jameson-Mooney.”
·What specific Orders should be made, if any, as to the provision of contact and residential details together with medical and educational information.
·If the children and the Mother are ordered to live in Victoria, it is the Father’s proposal that he pay the Mother’s first rental bond and a sum of $100.00 per week until she either obtains full time employment or Y commences primary school, whichever is the earlier.
THE EVIDENCE
The Father relied on:-
·the Further Amended Minute of Order marked as Exhibit F4;
·the Further Amended Initiating Application of the Father filed 12 November 2021;
·the Affidavit of the Father filed on 12 November 2021 excluding the Annexures;
·the Affidavit of the paternal grandmother, Ms H filed 5 July 2021;
·the Affidavit of the Father’s work manager, Ms J filed 19 November 2021;
·documents tendered during the course of the hearing marked as Exhibit F5; and
·the Case Outline filed 19 November 2021.
The Mother relied on:-
·the Response to an Initiating Application filed 22 November 2021;
·the Affidavit of the Mother filed on 12 November 2021, excluding the Annexures;
·the Affidavit of Mr K (“Mr K”) filed on 12 November 2021;
·the Affidavit of Ms L (“Ms L”) filed on 12 November 2021;
·documents tendered during the course of the hearing marked as Exhibit M3; and
·the Case Outline filed 22 November 2021.
Ms M, a Family Consultant, prepared a report on 9 August 2021, being Exhibit 1. Ms M was cross-examined on the last day of the hearing.
THE CHILDREN
X is 8 years and 3 months of age. He has been diagnosed with Autism Spectrum disorder and Attention Deficit Hyperactivity Disorder. He attends Suburb F Public School and has a teacher’s aide in the classroom to assist him. X repeated Kindergarten. The Mother’s evidence is that X is not progressing at the same level as his peers however his writing has improved significantly and he is now able to read some words. It is not disputed that X engages in some challenging behaviours. It was the Mother’s unchallenged evidence in cross-examination that X has had issues with biting other people.
X is under the care of a paediatrician and psychologist in New South Wales. He attends upon his paediatrician approximately every two months, and his speech therapist weekly. He is currently prescribed 30mg of Ritalin LA and takes one tablet a day. X was approved for NDIS funding in September 2021, such funding covers 20 sessions of any therapy. The Mother will be responsible for any costs thereafter. X’s speech therapy costs $195.00 per session, his psychologist costs $155.00 per session and his paediatrician appointments are on average $160.00 per appointment.
Y is currently 13 months of age. She was born subsequent to the parties’ separation in New South Wales. Y was described by the Family Report writer as having an appearance not unlike X’s and presenting as “very contented”, the Mother describing her as a “very happy baby.”[1] The Mother deposes that on 8 July 2021, the Mother took Y for her six-monthly check-up and was informed by the Doctor that she was not gaining weight and would require weekly weigh-ins to monitor her weight. Ms M concluded that Y “appeared to be developing well, she was responsive to the writer’s efforts to engage her, smiling in response.”[2] The Mother meets the costs of Y’s paediatrician appointments, the most recent appointment costing $245.00.
[1] Family Report dated 9 August 2021, paragraph 73.
[2] Family Report dated 9 August 2021, paragraph 73.
THE PARTIES
The Father is currently 29 years of age and resides in Suburb E, Victoria in the home of the paternal grandparents with his brother, Mr N. I accept the evidence of the Father and paternal grandmother, Ms H, that they are a close knit family.
The Father is employed as a health care worker for the Employer O in Victoria, working 5 days a week for 8 hours a day. It is the unchallenged evidence of the Father that he has flexibility around his working hours and a capacity to work from home. He earns $89,000.00 per annum.
The Father deposes that he is in a committed relationship with his partner of almost twelve months, Ms P. Ms P did not give evidence in the proceedings, nor did she engage in the Family Report process. There is little evidence as to Ms P’s circumstances. She is 27 years of age, is studying a Master’s degree in health care and is currently working on a casual basis at the Employer Q and as a babysitter 3 times a week. She does not have any children. The Father deposes that he and Ms P are “looking to get married in the future and start a family once her studies are complete.” It is unknown from the Father’s evidence whether Ms P resides with the Father. The Father did not explain why Ms P did not give evidence in the proceedings nor engage in the Family Report writing process.
There is little detailed evidence as to the family the Father has living in Victoria save that X appears to have paternal grandparents, a paternal uncle and “extended family” living in that state.
The Mother is currently 29 years of age. She has not re-partnered. She and the children have resided with her sister, Ms L in the home of the maternal grandmother at Suburb F on the Region G of New South Wales since 10 October 2020 after quarantining in New South Wales from 25 September 2020. The home has four bedrooms; X and Y have their own bedroom. I accept the Mother’s evidence that Ms L, who is 9 years older than the Mother, is a “mother figure” to the Mother and assists her in caring for the children on a daily basis as well as financially; she “helps me in any way that I need help.”[3] I accept Ms L’s evidence that she looks after the Mother, is very protective of her and gives her advice when she needs it. I find that Ms L provides fundamental support to the Mother in the parenting of the children.
[3] Transcript 24 November 2021, p.105.
The Mother’s triplet brothers; Mr S, Mr T and Mr U live in Mr U’s home which is approximately a seven minute drive from the Mother’s home. The children and the Mother generally see them each alternate weekend.
The Mother has a twin brother; Mr V. He and his partner Ms W have a son, Z who is 3 months younger than Y. The Mother and children see them several times each week.
The Mother has family in Sydney who she will often stay with when she and the children have a flight departing from Sydney. Her cousin Mr AA and his partner Ms BB travel from Sydney up to visit the Mother and children most weekends.
The maternal grandmother has been living in Perth, Western Australia since May 2021 where she has a contract of employment until June 2022. I accept Ms L’s evidence that the maternal grandmother’s move out of the home was better for the household and in particular X, as the household is now more settled and routine.
The Mother does not have any formal qualifications. She is not engaged in paid employment outside the home and is reliant upon Government benefits being $450.00 from Centrelink one week for the Family Tax Benefit and $880.00 in the second week for the Parenting Payment Single. The Mother ‘anticipates’ that her Centrelink payments will soon decrease by $80.00 per week, however, there is insufficient evidence to base this belief and I cannot make such a finding.
I find that the Father pays the Mother the sum of $261.35 per week in child support. The Mother does not anticipate that she will commence in any form of paid employment until 2025 and at such time it will be limited to school hours. This was not challenged in cross examination by the Father and I accept that this will best promote the children’s best interests.
It is uncontested that the Mother pays to her sister $300.00 each week by way of rent/board but that her sister covers her share if she is short on money. The Mother says that “If ever I am short on money Ms L will pay for any shortfalls”.[4]
[4] Affidavit of the Mother filed 12 November 2021, paragraph 529.
The Mother commenced taking anti-anxiety medication in September 2021. She has been seeing a psychologist on a fortnightly basis since April 2021. There is no evidence from the Mother’s treating psychologist. The Father did not make any adverse submissions as to the Mother’s mental health issues affecting her parenting capacity ability to care for the children.
Ms M reports that she is concerned that the parties, appearing as they do to be highly reliant and engaged with their respective family networks, lack the independence and responsibility to grow as parents to their own children. She opines that the parties’ “reliance on their family is undermining the question of where each parent is willing to live.” [5] I accept and find that both parties are reliant upon their families for support. I find that the Mother is heavily reliant upon her sister to assist her with care of the children as well as for emotional and financial support.
[5] Family Report dated 9 August 2021, paragraph 87.
The Mother’s Affidavit evidence is that the Suburb F property is approximately a 58 minute drive from City B Airport, a two-hour drive from Sydney Airport and a 6 hour drive to the Victorian border. There is no evidence by the Father as to the travel times between the parties’ respective homes. The Mother agreed in cross examination that she currently resides a 55 minute drive from City B Airport, that the flight to Melbourne airport takes approximately 1 and ½ hours and that it is approximately a 35 minute drive from Melbourne airport to the Father’s home. This is a total travelling time of 3 hours. The Mother conceded that including check-in times the total trip would take approximately 4 to 5 hours. It does not appear to be in dispute that it is approximately an 11 hour drive from the Mother’s home to the Father’s home.
BACKGROUND
The Father was born in 1992.
The Mother was born in Sydney in 1993. The Mother relocated with her family to Victoria when she was in Year 2. The Mother and Father attended the same primary school until Year 6. Upon commencing High School the Mother and her family relocated back to New South Wales.
In 2009/2010 the parties reconnected on Facebook and commenced a long distance relationship. In 2011 the Mother moved into the Father’s home with his parents and brother, Mr N.
In approximately 2012 the Mother learnt she was pregnant. The pregnancy was terminated. Events surrounding this are discussed below.
The Mother commenced studying for her transport licence in approximately 2012.
The Mother learnt she was pregnant with X in approximately 2013 and ceased studying for her transport licence in 2013. She deposes that she advised the Father she did not want to be a stay at home parent; she wanted to return to her studies and ultimately work as a transport worker but the Father advised her that he wanted her to be a stay at home Mother and not work outside the home. Irrespective, the Mother did not return to study. I cannot make a positive finding as to why this was.
The parties moved into the paternal grandparents’ home in 2013. They paid the sum of $450.00 per week rent.
X was born in 2013.
The evidence is uncontroversial that the Mother was missing her family including the maternal grandmother and the parties agreed the family would relocate to New South Wales to live.
In January 2014 the parties moved from Victoria to a unit at Suburb CC on the Region G of New South Wales owned by the maternal grandmother. The parties paid the sum of $300.00 per week to the maternal grandmother which included the cost of all outgoings.
The Father commenced working night shift at Employer DD. It was unchallenged that he would leave home at approximately 1:00 am and return home from work at approximately 10:00 am. The family would spend some time together prior to the Father going to bed to sleep prior to his next shift. I accept the Mother’s unchallenged evidence that during this time the maternal grandmother and Ms L, the Mother’s sister, provided assistance to the Mother in caring for X and cleaning the home.
In January 2016 the parties relocated back to Victoria and lived with the paternal grandparents and the Father’s brother, in the home of the paternal grandparents. Prior to the move to Victoria the parties and X lived with the maternal grandmother in her home for a period of 3 months, although there is no clear evidence as to when this occurred.
It is the Mother’s Affidavit evidence that the parties relocated back to Victoria as the Father was not happy living in New South Wales. She deposes that the Father would complain about her family and continually tell her that they had to move back to Victoria and that this was “the only thing that was going to make him happy.”[6] The Mother deposes that the Father would say on an almost daily basis: “I hate it here, it’s too hot.” and “I don’t like NSW”.[7] The Mother asserts that she did not want to move away from her family but “I desperately wanted to keep him happy and I thought I had no choice.”[8] The Father’s Affidavit is silent as to this issue. He is reported as stating to the Family Report writer that there was a lack of support from the maternal family and they endured financial hardship. On balance, I accept the Mother’s evidence in this regard.
[6] Affidavit of the Mother filed 12 November 2021, paragraph 71.
[7] Affidavit of the Mother filed 12 November 2021, paragraph 72.
[8] Affidavit of the Mother filed 12 November 2021, paragraph 73.
Subsequent to the parties’ relocation back to Victoria, X commenced attending day care one day per week.
The Father commenced working with Employer O in 2017.
X was diagnosed with Autism Spectrum Disorder in 2019. He repeated Kindergarten in that year.
The parties moved to the property they had purchased in Suburb D, Victoria in December 2019. They remained living in this home until separation.
The parties married in 2019.
X was diagnosed with Attention Deficit Hyperactivity Disorder and was prescribed Ritalin in 2020.
In approximately June 2020, the paternal grandmother moved in with the Mother and X so as to assist the Mother whilst the Father was undergoing two weeks of hotel quarantine. The Mother did not feel consulted about the decision for this to occur but said nothing to the paternal grandmother as she did not want to hurt her feelings. This time was extended when Victoria went into lockdown due to the pandemic.
The parties separated on 11 September 2020.
On 25 September 2020 the Mother and X flew to Sydney and entered two weeks of quarantine due to COVID 19 restrictions. The Mother was nearly 6 months pregnant with Y at this time.
On 10 October 2020, the Mother and X travelled to the Region G of New South Wales and began living in the maternal grandmother’s home at Suburb F. At this time the maternal grandmother, the Mother’s sister Ms L and brother Mr T were living in the house.
On 9 November 2020 the Father sent the Mother a text message:
You’re really gonna claim 100% care of X so I pay the max amount of child support. $300 a week? Honestly? All I wanna do is see him and now not only can I not do that but I have to pay the max amount possible?[9]
[9] Exhibit M3, p.1.
The Mother further asserts that during a telephone call on an unspecified date the Father said to the Mother “I will do whatever it takes to have you brought back here, I can’t believe you expect me to pay you this amount of Child Support. It's not going to happen.” The Father did not put this conversation into issue.
On 11 November 2020 the Father filed an Initiating Application seeking orders on an interim basis that X and the Mother immediately return to the Victoria and be restrained from relocating outside of that state, a recovery order for X to be delivered to him at his residence in Victoria, that the parties have equal shared parental responsibility for X, and that X live with the parties on a week about basis.
On 1 December 2020 consent interim parenting Orders were made that:
(1)The child of the marriage, namely X born in 2013 (“the child”) live with the Mother.
(2)The child spend time and communicate with the Father as follows:
(a)From Saturday 5 December 2020 with the child to fly to Melbourne and the Mother to travel with the child to Wednesday 9 December 2020 with the child to fly back to New South Wales with the Mother, at the expense of the Mother;
(b)From Wednesday 23 December 2020 with the child to fly to Melbourne and the Father to collect the child to Thursday 31 December 2020 with the child to fly back to New South Wales through the unaccompanied minors program through Qantas or another airline agreed between the parties, at the joint expense of the parties;
(c)From Friday evening with the child to fly to Melbourne on a 5pm-6pm flight (or during the school term on Saturday morning if Friday departure is not possible) and the Mother to travel with the child to Sunday afternoon/evening with the child to fly back to New South Wales on a 5pm-6pm flight and the Mother to travel with the child, commencing Friday 9 January 2021 and each alternate weekend thereafter at the joint expense of the parties;
(d)By telephone/facetime each day;
(e)Such other and further times as agreed between the parties.
(3)In the event the Mother is unable to travel the child will travel to and from Melbourne and New South Wales under the unaccompanied minor program through Qantas or other airline as agreed between the parties.
(4)In the event the Mother is ordered to return to Victoria the parties agree that the child and the Mother will live in the former matrimonial home at EE Street, Suburb D in the State of Victoria with all expenses of the home paid for by the Father.
(5)Changeover take place at as agreed between the parties failing agreement at the Melbourne Tullamarine Airport/Avalon Airport or City B Airport.
(6)The parties keep each other informed of their contact details and residential address at all times.
(7)The parties immediately inform the other in writing of any medical, behavioural and/or scholastic issue of the child and authorise any professional and/or institution treating the child to communicate with the other and otherwise exchange necessary medication at changeover.
(8)The parties authorise the child’s learning institutions to communicate with the other and to ensure the other receives all ordinary notices, newsletters, photographs etc.
(9)The Mother file and serve her Response, Affidavit and Notice of Risk within 14 days of the date of these Orders.
AND THE COURT NOTES THAT:
(A)The Mother is expected to give birth to the parties’ second child in 2021 and the parties agree to be flexible in relation to the commencement of alternate weekend time per paragraph 2(c).
(B)The former matrimonial home situate at EE Street, Suburb D in the State of Victoria is scheduled to be listed for sale on 12 December 2020 and it is agreed the proceeds will be held in the Borchard and Moore Trust Account pending final resolution of property matters between the parties.
(C)The parties agree to engage in Mediation once the Mother’s grant of legal aid is formally approved.
From 5 December 2020 to 9 December 2020 the Father spent time with X in Melbourne with the Mother accompanying X’s travel.
In 2020 X was due to travel to Victoria. Due to COVID 19 restrictions, all flights to Melbourne from City B airport were cancelled. As flights were $809 each way the Father requested the Mother drive with the parties to meet at the New South Wales/Victorian border, a 6 hour drive. The Mother was 8 ½ months pregnant at the time. The child did not spend time with the Father on this occasion.
In 2021 Y was born.
The Father spent time with X from 2021 to 2021 with the Father travelling to New South Wales to collect X with changeover occurring at City B Airport. In evidence are numerous email communications between the parties attempting to arrange for Y to see the Father at this time. The Mother deposes that on 18 January 2021 the Father confirmed with the Mother by email that X’s flight was scheduled at 5:50 pm and requested the Mother arrive early so that he could spend time with Y, who was almost 2 weeks old at this time. By email, the Mother asked the Father whether he had his whooping cough vaccination. The Father responded that he had received the vaccination that day and asked “to see proof from your entire family with written doctors notes that they have all received vaccinations. You are not the only one that can make these demands. So I’ll be expecting doctors notes from Ms Mooney, Mr U, Mr S, Mr V, Ms L, Ms W and yourself tonight. You can send all these through my lawyer if you like. Thanks.”[10]
[10] Exhibit M3, p.6.
The Father sent an email at 6:45 pm on the same day as follows:
Are you telling me you won’t allow me to meet my daughter for the first time?
I’d like to see all those doctors notes from your family members right now if this is the case.
Otherwise as I said, I’ll see you and Y at the airport tomorrow.
As i said, if you are unable to provide this on your end by tomorrow, it will look very hypocritical and will discredit your logic in me not seeing my daughter. And this will therefore be classified as parental alienation, and will not be a good look for court for you.
Bottom line, unless you can provide those notes by tomorrow back dated to 2 weeks ago, I’ll see Y tomorrow. You opened this can of worms, not me. It’s clear you are not able to provide these and it would therefore be easier to allow me to see Y.
I’m more than happy to wear a mask while holding her to avoid any potential risk that you’re perceiving. Regardless of this, I’ll expect until you provide me with documented proof of you and your whole family receiving this more than 2 weeks ago, your family will wear masks if they are around her too. Again, you opened this can of worms.
This whole email is in line with legal advice I’ve received on the matter.
Thanks
The Mother advised the Father by email at 10:02 pm that night that:
Keeping Y away from you is definitely not something I would ever do.
You are more than welcome to come to our house to see her.
The airport is not a safe place for an unimmunised newborn, especially with covid.[11]
[11] Exhibit M3, p.7.
The Father responded:-
If that’s the case and the way you want to do it, fine. I’ll see you and her in Melbourne on the 5th February.
Me and all my family members will have had the injection and past the phase where it will have kicked in, and you’ll then have no excuse not to follow the court order.
I will book flights for that later this week.
Thanks
There were no Court orders in place with respect to time Y was to spend with the Father.
The Father sent the Mother an email the next morning at 5:45 am as follows:
I don’t think saying Y is not safe at an airport is quite silly and just not true.
Also you know full well I’m not allowed to leave the airport.
Regardless you’ll be bringing her down on the 5th which will involve an airport so.
Anyway whatever you decide in regards to potentially keeping me from meeting her will obviously be noted and documented for court.[12]
[12] Exhibit M3, p.8.
The Mother deposes that on 25 January 2021, the Mother emailed the Father asking what time he would like to meet at City B Airport to facilitate changeover as the Mother offered to arrive early so the Father could spend time with Y. The Father reported by email that “I’ve changed my flight time to 8:30am, as last time I had to sit at the airport for 9 hours and you didn’t want to come any earlier so I was by myself the whole time and couldn’t spend any extra time with Y.”[13] The Father’s evidence is that he saw Y briefly on this occasion for less than a minute while she was strapped into the Mother’s car.
[13] Affidavit of the Mother filed 12 November 2021, paragraph 264.
X spent time with the Father on the weekend commencing 5 February 2021 in Victoria. X was accompanied by the maternal grandmother.
The parties then began communicating as to arrangements for the children in the next school holidays. The Mother advised the Father that she has planned a trip to Queensland with the children. In an email to the Mother dated 16 February 2021 the Father states to the Mother with respect to school holidays:
Why would you do that, and prior to court as well?? Why? You realise it’s very standard practice no matter what the custody arrangements are in place, for parents to split school holidays? The courts will put this into an order prior to the holidays, so if you’ve made ‘plans’ suddenly out of thin air, I’d suggest you cancel them now, as making them was very irresponsible and naïve of you…….Wow. Yet another attempt at parental alienation. I now have cited three instances within a few days, all forwarded to my legal team. All this will be brought to light at court I’ve been told, I can promise you that……..I promise you right now, I have no problem dragging this through 150k + each in legal fees (and I will) if that’s what it takes, to ensure my son and daughter get what they deserve, and that’s to spend the most amount of time with their loving father as possible, despite what you think. I will fight this for years and years if I have to, and you know I will, in order to do what’s right by my son and daughter, even if you aren’t……Very disappointing Ms Mooney.
X spent time with the Father from 19 February 2021 to 21 February 2021. The maternal grandmother again travelled with X to Melbourne airport to facilitate X’s time with the Father. There was an issue with respect to the handover of X by the maternal grandmother to the Father.
During the time that X was spending time with the Father, he sent the Mother an email on 19 February 2021 as follows:
As you know, the fact I allow your mother to bring X down is a favour I do, as technically as per the court order you are to bring X down.
It was as you know a Jetstar flight, I was in the Jetstar pick up zone as I had arranged with your Mother the fortnight before.
Makes sense right? Jetstar flight, Jetstar waiting bay. Virgin flight, virgin waiting bay.
Apparently that was too hard to grasp.
She waited in the wrong spot and sat there doing nothing for 35 minutes, until I HAD TO CALL HER. I mean really?
When I got there, she then gave me a terrible attitude and was rude to me IN FRONT OF X.
She then told me I had to be in the virgin car park at 1:50pm on Sunday. I told her that I would drop him at the Jetstar waiting bay as it is closer for X, and as I said it's a Jetstar flight, makes sense right?
She then said, "well I'll be in the virgin one", I said well what if he misses his flight? She shrugged her shoulders and walked off.
If she isn't at the Jetstar drop off point at 1:50pm and goes downstairs, and X in turn misses his flight. He will then either have to stay here for an extended time, and the replacement flight will be entirely at your cost, as it will be all your Mother's fault.
In future she is not to bring him down. You can just follow the court order now.
I agreed to do you the favour of allowing her to come instead of you, and she's ruined it for you with her tardiness and disgusting attitude, and in front of X no less. You can thank her for that.
Thanks
On the 6 March 2021 the Mother took Y for the first time to Melbourne with X to visit the Father. She travelled with her friend Mr K. This was the first time that the Mother was travelling with both X and Y on an aeroplane. Y was 2 months old. There is an incident at the changeover of X between the parties at the airport.
An issue then arose between the parties as to X travelling to Melbourne airport on a Friday afternoon. On Thursday 11 March 2021, the solicitors for the Mother forwarded an email to the solicitors for the Father advising that the Mother was unable to travel to City B Airport on a Friday afternoon with sufficient time to board the 5:10 pm flight after X finished school due to peak hour traffic and the lengthy check in process with a newborn child. It stated that X would commence travelling to Melbourne on a Saturday morning flight instead.
The Father’s solicitors stated by return email that the 5:10pm flight was possible as the parties have booked the flight to success in the past. Notwithstanding, the Father solicitors suggested that the children should travel on the 8:20 pm flight on Friday instead and that “a newborn baby does not know the difference better (between) day and night, and generally sleeps in small cycles.” It continued:-
In the event that your client does not comply with the current Interim Orders, we are instructed to issue an urgent Application in a Case seeking immediate relocation and recovery of X to Victoria.[14]
[14] Exhibit F5, p.5.
Some 3 minutes later on this date, the solicitors for the Father forwarded a further email to the solicitors for the Mother seeking clarification as to whether the Mother was departing on a 5:10pm or 8:20 pm flight.
By way of letter dated 12 March 2021, the Mother’s solicitors wrote to the Father’s solicitors again advising that time will commence on the Saturday noting that:-
Our client is astonished that your client would propose that X and Y travel to Melbourne on the 8.20pm flight. Regardless that such flight would see X not arrive and be settled at your client's residence until likely after 11 pm (that is in the unlikely event our client would be able to secure a rental car), our client and Y would be stranded at Melbourne Airport given there are no returning flights to City B until the next day.[15]
[15] Exhibit F5, p.10.
By way of letter dated 14 March 2021, the Father’s solicitors wrote to the Mother’s solicitors attaching copies of 2 flight booking confirmations, the first being a 2:35 pm departure on Friday 5 February 2021 and the other a 5:10 pm departure on Friday 19 February 2021. It stated that “It is clearly possible for X to make the 5:10pm departure flight from City B.”[16] The solicitors for the Father again advise the Mother that they hold instructions to file an application for recovery:-
Accordingly, our client reiterates his position detailed in our emails dated 11 March 2021, and in the event your client refuses to make the 5: 10pm departure flight from City B we are instructed to issue an App1ication in a Case for immediate relocation and recovery with an application for costs against your client on an indemnity basis.[17]
[16] Exhibit F5, p.12.
[17] Exhibit F5, p.12.
By way of letter dated 15 March 2021, the Mother’s solicitors wrote to the Father’s solicitors conceding that X had flown on both the 5:10 pm and 2:35 pm flights however, that on 5 February, X was removed from school at 12:00 pm to make the 2:35 pm flight and that on 19 February the maternal grandmother accompanied X to make the 5:35 pm flight. The Mother proposed that “In the event your client is content to travel to NSW to collect X from school at the conclusion of the school day and, travel from City B to Melbourne on Friday 19 March, our client is content for this to occur.”
On 15 March 2021, the solicitors for the Father wrote to the solicitors for the Mother advising that she could indeed check in online with an infant and again stated that “In the event that your client fails to facilitate time this weekend, we are instructed to issue proceedings for recovery and relocation without delay.”[18] There was no response to the suggestion that to facilitate time of a Friday that the Father collect X directly from school in New South Wales.
[18] Exhibit F5, p.16.
On 16 March 2021, the solicitors for the Mother forwarded to the solicitor for the Father an email confirming that the Mother is required to check in in person as she travels with baggage.
Thus four days after he exercises time with X in Melbourne and where Y was just 2 months of age, the Father threatens on three occasions to issue recovery proceedings for X. It was not suggested at the hearing that the content of these letters were other than in accordance with the Father’s instructions.
X has travelled to Melbourne on a Friday afternoon/evening since this time on 6 occasions.
On 20 March 2021, the Mother accompanied X and Y to and from Melbourne. The Father spent time with X from 20 March 2021 to 21 March 2021. The Father spent some time holding Y upon arrival and departure from Victoria.
On 2 April 2021, the Mother travelled with X and Y to Melbourne. X spent the weekend with the Father and Y spent time with the Father at the park.
On 13 April 2021, the Father travelled to New South Wales to collect X for school holiday time from 13 April 2021 to 17 April 2021. Prior to his return, the Mother advised the Father that she had made a mistake with respect to the day that X had to return to school and offered for X to extend his stay with the Father if the Father would pay for the cost of changing flight times.
On 16 April 2021, whilst X was staying with the Father, he sent the following email to the Mother:
That’s very disappointing to hear that you didn’t do X the courtesy of even looking to see when he actually returns to school, and because of that he now suffers, again.
You told me and him he could only be here until Saturday as he returns to school on Tuesday.
And now you’re saying it’s at my expense if we want to fix your mistake???? You should be paying the whole thing as it’s your mistake that’s caused this for your son, you should be paying the entirety, where is your logic in making me pay for the whole thing?
It’s going to cost in excess of double the initial flight costs in fees ($55 per flight per person, plus fare differences for each flight which are around $100 each.
In future I hope you’ll check these things prior to me booking so our son doesn’t suffer because of your mistakes.
And to cap it off you aren’t even willing to pay for the mistake yourself.
Not a good look mate.[19]
[19] Exhibit M3, p.15.
28 minutes later the Father forwarded a further email to the Mother as follows:
I can’t afford to pay for these by myself and I think you know that.
I feel sorry for him for your mistake on this and think it’s very sad you then refuse to own it and fix it but instead make it at my expense.
Very very disappointing Ms Mooney.
The current flight arrival is 8:10pm.[20]
[20] Exhibit M3, p.15-16.
The Mother’s solicitor on 21 April 2021 wrote to the Father’s solicitors and advised that as Y was experiencing issues with the travel to Melbourne, Y would no longer be travelling to Melbourne and would not be able to spend time with the Father in Victoria as a result. The Mother suggested that the Father travel to New South Wales to accompany X on any future flights.
The Father’s solicitors wrote to the Mother’s solicitors on 27 April 2021 stating that the Father did not believe it to be in the best interests of X to travel alone back from Melbourne as X’s becomes hysterical when leaving the Father. The Father suggests that X be flown to Melbourne unaccompanied and that the Mother pay for the entire cost of the Father to fly to and from City B Airport to accompany X on the return trip. The solicitors for the Father state they are of the view that this would be a “constructive alternative.”
In the shadow of Orders made by consent that X travel as an unaccompanied minor, at 12:21 pm on 27 April 2021, the Father then sent an email to the Mother as follows:
You want to send him by himself?
How exactly is that going to work?
You’ve seen how upset he is when I drop him back to the airport even when YOURE there, imagine how he’ll be on the way back by himself?
Surely you’re at least going to put me on the flight back with him right?
You surely wouldn’t do that to him right?[21]
[21] Exhibit M3, p.17.
Thirty one minutes later the Father sent a further email to the Mother as follows:
Do you think this is demonstrating to the court that you have “the best interests of the child” in your mind?
What’s best for X, our child who I’m not sure if you remember has ASD, would be you travelling with him, or until you’re medically “well enough” to travel, it should be for me to take him back to you at least on the return leg.
That would be in the best interest of our son, and I’m sure the courts and professionals involved will agree.
It’s clear at least that I have his best interests at heart as demonstrated in this email chain..[22]
[22] Exhibit M3, p.17-18.
Later than same evening in an email to the Mother entitled “Inappropriate lies to X” the Father stated:
After you have come up with this idea where you don’t want to/have to travel anymore.
This was apparently not enough for you?
After my discussion with X over the phone tonight, I’ve just found out that not only are you refusing to travel with him and making our 7 year old autistic son travel alone, but you have now apparently lied to him and said the reason he has to travel alone, is because “daddy doesn’t want to fly with you”. Absolutely disgusting behaviour on your part.
This is just going one level to the next.
For the millionth time, please stop with the lies and parental alienation.
If you want to send our son on his own on a plane, you tell him so. Don’t blame me, it’s completely 100% on you, and you should be making that clear to him, not lying and saying it’s my choice.
He is not to go on his own, certainly not on the way back where he will be distraught at the fact he’s leaving me like always, compiled with the fact he’s then got to get on the plane alone?
You can pay for me to take him back to you, seeing as how you’ve conveniently saved yourself a few hundred dollars by you not travelling. It’s not about the money though right? So then you should have no issue with paying for me to accompany him back to City B. He is NOT to travel alone back to City B. I don’t consent to this.
I would think as his caring Mother, you would insist me accompanying him back to City B, no? Rather than just sending your 7 year old with ASD, on a plane willy-nilly by himself? I mean, really Ms Mooney?
This is what you want to go on the record with? That this is what in YOUR mind and YOUR judgement is in “best interests of X”? Are you sure that’s the stance you really want to go with? Wow. No words.
Thanks[23]
[23] Exhibit M3, p.18-19.
The Father copied his solicitor into this correspondence.
When asked about this email in cross examination the Father, despite having some time to reflect on the tone and tenor of such correspondence confirmed that he felt that the email was reasonable and appropriate.
By way of letter dated 28 April 2021 the solicitors for the Mother advise the Father’s solicitors that the Mother cannot afford to purchase a flight for the Father to and from City B. The Mother proposed that the Father accompany X to and from City B on the return flight at his expense.
On 29 April 2021, the Father sent an email to the Mother as follows:
You know full well how upset and emotional he will be for this on the way back leaving me.
I still don’t understand how you as a Mother, would subject your own child to this. It defies belief. How can you do this to him?
This really will highlight to the court the differences in our parenting, and the way we treat X won’t it, and whose in touch with his “best interests”, and who is not.
You claiming he’s fine leaving me? And will be fine to go on the plane, alone? You surely don’t really believe that right? You want that on record to the court as your opinion on what you believe your child will be feeling? Really, are you sure?
Believe me the proof will be there come Sunday night, demonstrating exactly whose in touch with his emotions and who knows how he will react, and what’s in his best interests. Will be right there for the court black and white.
It will tell the court ALL they need to know, don’t you think?
I hope you make sure he knows it’s all because his Mother doesn’t want to travel with him anymore, because he deserves to know the truth.
I would recommend you re-book a flight so I can take him back for you, and that that would be better for him and his mental health. This will prove to be the right decision come Sunday night. The court will see this too, I promise you.
How can you do this to our poor little boy?
You should take a really hard look at yourself as his Mother, because your so out of touch on what’s best for him, and just trying to get out of travel and save a few bucks, at his expense.
I feel so sorry for him.
Unfathomable.[24]
[24] Exhibit M3, p.19-20.
From the weekend of 1 May 2021, X began travelling to Melbourne to spend time with the Father as an unaccompanied minor.
On the 4 May 2021 the Father filed an Application in a Case seeking short notice listing of his interim application that X live with him and spend time with the Mother in City B with the parties to jointly pay for the Father to accompany X each way, together with Orders that Y live with the Mother and spend time with the Father during times that X was seeing the Mother.
The Father spent time with X in Melbourne the weekend of 15 May 2021 and 12 June 2021 with X travelling as an unaccompanied minor.
In an email to the Mother from the Father on 13 June 2021 the Father states:
X seems to be coming down in the same clothes every fortnight?
Is there a reason for this?
As part of the child support that is paid to you, it is meant to also be used to purchase new clothes for our children, is this not happening or?
Not to mention whenever I send him back in different clothes I’ve bought, they stay up there and you send him back in old clothes again? Got pictures from every fortnight to prove it, before you deny this…..
I can’t believe I even have to put this sort of thing in an email. Come on, Ms Mooney.[25]
[25] Exhibit M3, p.22.
The Mother deposes that she was upset and offended by the Father’s email. It is the Mother’s unchallenged evidence that X suffers from sensory challenges and she has observed that he is very particular with his clothes and often wears the same outfit that he is comfortable in. I accept this evidence.
The Father spent time with X from 6 July 2021 to 11 July 2021 and again from 23 to 29 July 2021 with X travelling as an unaccompanied minor.
From approximately 24 July 2021 Y started to join in with X’s Facetime calls with the Father.
The Father spent time with X from 6 August 2021 to 9 August 2021, from 22 August 2021 to 27 August 2021, and the 3 September 2021 to 6 September 2021 in Melbourne.
On the 10 September 2021 the Father’s Application in a Case filed on 4 May 2021 was heard. A Senior Judicial Registrar made Orders that, pending further Order, the parties have equal shared parental responsibility for the children, with the Mother to return with the children to live in Victoria within 45 days. Orders were made for X and Y to spend time with the Father.
The Father spent time with X on the weekend of 17 September 2021 and 29 September 2021 with X travelling as an unaccompanied minor.
On 6 October 2021 the Mother filed an Application for a Review of the interim Orders made on the 10 September 2021. On 15 October 2021 the Court stayed the Orders of the Senior Judicial Registrar and listed the Review for hearing on the first day of the Trial.
The Father spent time with X from 13 October 2021 to 17 October 2021 in Melbourne with X travelling as an unaccompanied minor.
On 29 October 2021, the Mother travelled with X and Y to Melbourne. The Father spent time with X from 29 October 2021 to 31 October 2021. The Father spent time with Y at arrival and departure at a park on 2 occasions for 45 minutes.
THE MATTERS IN DISPUTE
Family Violence
The Mother asserts that the Father engaged in family violence through controlling and coercive behaviour both throughout the relationship and post separation.
Family violence is defined in the Family Law Act 1975 (Cth) (“the Act’) as violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family or causes them to be fearful.
Both parties gave evidence as to the termination of their first pregnancy in 2012. It is the Mother’s evidence that she did not feel supported in Victoria and did not feel ready to have a baby at such a young age. The Mother deposes that the Father flew into a fit of rage when she advised him of her decision, punching a wall and breaking his hand. In cross examination the Mother conceded that the Father had a half cast, but that she thought the Father’s hand was broken. The Mother deposes that the Father’s reaction made her feel scared, unsupported and alone. The Father told the Mother that as he did not agree with her decision, he would not assist in the termination either financially or by taking her to the appointment. The maternal grandmother paid for the procedure and the paternal grandmother accompanied the Mother to the appointment.
The Father conceded during the course of cross examination that he was upset at the Mother’s decision to terminate the pregnancy and punched the outside of the house with his hand as he was leaving. This was consistent with the paternal grandmother’s evidence that he punched a wooden wall outside. He conceded that he advised the Mother that he would not assist her with the costs as he was “very, very wild and upset,”[26] that he could have responded to the situation better, that the Mother was unsupported in her decision and probably felt that way. In direct contrast to that evidence is the Father’s reported statement to the Family Report writer that he “respected and supported Ms Mooneys decision to not proceed with the pregnancy.” [27] The Father did not explain this inconsistency.
[26] Transcript 23 November 2021, p.45.
[27] Family Report dated 9 August 2021, paragraph 25.
I find that the Father punched the outside wall in a fit of rage on his way out of the home after a discussion with the Mother as to her decision to terminate the pregnancy. I accept that the Father did not support the Mother emotionally, physically or financially with respect to this decision as he did not agree with it. I accept that the Mother as a result felt alone and unsupported.
The Mother alleges that the Father engaged in coercive and controlling behaviour with respect to her personal appearance. It is the Mother’s evidence that the Father made her feel pressured and insisted that she undertake a breast augmentation procedure that she did not wish to have. The Mother provided the Father with available dates for the surgery and the Father booked, signed the surgery papers and paid for it. The Mother deposes that the Father was not happy with the size of the breast implants selected by her and made another appointment for her to see the plastic surgeon so she could try bigger sizes. The Mother deposes “I wanted to keep Mr Jameson happy so I went to the appointment.”
The Father was unequivocal in his evidence that it was the Mother that wanted the breast augmentation surgery to be undertaken and that he signed the surgery papers, attended with her for the appointments and paid for it as the money was coming from a particular account.
Having heard each of the parties under cross examination about this issue, I accept the Mother’s evidence. I find the Father’s reason as to why he executed the documentation, attended with the Mother for appointments and paid for the surgery unconvincing. I am satisfied that the Mother felt pressured by the Father to have this surgery. I find that the Mother underwent this surgery as it was the Father’s wish and she wanted to keep the Father happy.
The Mother asserts that the Father would tell her to go and get a spray tan as he did not like how white she was. She did not resile from this in cross examination.
[COUNSEL FOR THE FATHER] So why did you do it?
[THE MOTHER] Because he kept telling me to go and do it and wouldn’t take no for an answer.[28]
[28] Transcript 24 November 2021, p.129.
The Father denied this in cross examination and said that the Mother wanted to have the spray tans. Having heard and observed each of the witnesses I accept the Mother’s evidence that the Father would tell the Mother that she should have spray tans as he did not like how “white she was.” I found the Mother’s evidence to have a ring of authenticity and the Father’s denial to be unconvincing.
The Mother further deposes that the Father insisted that she dye her hair, telling her she looked better with blonde hair. The Mother asserts that the Father would say words to the effect of: “Don’t you care enough about me to look good?” However in cross examination the Mother appeared to concede that the Father did not ask her to dye her hair blonde.
[COUNSEL FOR THE FATHER] Okay. And did you ask him whether or not he thought you would look good with blonde hair?
[THE MOTHER] Definitely not.
[COUNSEL FOR THE FATHER] His evidence is that that’s what happened and he didn’t ask you to dye your hair blonde. That’s right, isn’t it?
[THE MOTHER] If that is what he said, yes.
I am cannot be satisfied in light of this apparent concession that the Father insisted the Mother dye her hair blonde.
On balance, I find that this relationship was characterised by the Father directing the Mother as his wishes, opinions and desires and the Mother conceding those to make the Father happy.
The Mother alleges that the Father was financially controlling both during and post separation. She asserts that “most of the time” she was not allowed to spend money without first obtaining the Father’s permission to do so.[29] “I would not say free access, because most of the time, I was not allowed to use it unless I got permission.”[30] It was her evidence that she closed her own bank account and the parties operated one single joint bank account at the Father’s insistence. She asserts that upon purchasing groceries she would have to show the Father the receipts. She was unshaken in cross examination that the Father would not allow her to purchase her triplet brothers presents for their 21st Birthdays, nor would he allow her to purchase presents for her family.
[29] Transcript 24 November 2021, p.134.
[30] Transcript 24 November 2021, p.134.
It was the Mother’s unchallenged evidence that on or about 24 December 2019 she purchased some Christmas bon bons thinking they were $5.00 a packet. Upon arriving home and realising they were $10.00 a packet she was so worried as to how angry the Father would be that she drove back to the shops to return them. I accept that this occurred and was how the Mother felt.
The Father denied exerting financial control over the Mother. He conceded that he suggested that the Mother close her own bank account as there did not seem to be any utility in having two bank accounts. He conceded he would have asked the mother about purchases she made if they were “too expensive” or “It wasn’t on special” but not routinely.[31] He stated that he did not keep a closer eye on the account than “anyone would keep on their account.”[32] He denied asking the Mother for receipts for purchases made by her, or that he told the Mother they could not afford her purchasing 21st birthday presents for her brothers.
[31] Transcript 23 November 2021, p.48.
[32] Transcript 23 November 2021, p.47.
(14)The parties complete and provide a certificate of completion to each the other, the following programs:
(a)Post Separation Parenting Program;
(b)‘Young Children in Divorce and Separation from ‘Children Beyond Disputes’ ;
(c)‘Watch, Wait and Wonder’ from of Security’ from ;
(15)The parties download and communicate through the ‘Our Family Wizard’ app.
(16)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IN THE EVENT THE MOTHER AND THE CHILDREN DO NOT RETURN TO VICTORIA
(1)The parties have equal shared parental responsibility for the children of the marriage, namely X born in 2013 (“X”) and Y born in 2021 (“Y”) (“the children”).
(2)The children live with the Respondent Mother in NSW.
(3)The child X spend time with the Father as follows:
(a)From the afternoon/evening on Friday to the afternoon/evening Monday (or Tuesday if Monday is a public holiday or Sunday if X has on-site learning on Monday) each alternate weekend;
(b)In the event the Father travels to NSW during school terms and provides the Mother with seven days’ notice, from Friday afternoon/evening to the commencement of school on Monday;
(c)From the morning of the first Saturday to the afternoon of the second Tuesday during Term 1, 2 and 3 school holidays;
(d)For one half of the long summer holidays as agreed between the parties, failing agreement the first half in odd numbered years (including Christmas Day) and the second half in even numbered years;
(e)From the afternoon/evening on the Friday preceding Father’s Day to the afternoon/evening on the Monday proceeding Father’s Day (or Tuesday if Monday is a public holiday or Sunday if X has on-site learning on Monday)’
(f)By Facetime/Telephone at all reasonable times;
(g)Such other times as agreed between the parties in writing.
(4)The child Y spend time with the Father as follows:
(a)For a period of six weeks, each alternate weekend for 30-60 minutes at a location agreed between the parties on Friday, Saturday and Sunday with the Mother in attendance;
(b)At the cessation of time in paragraph 5(a) for a period of six weeks, each alternate weekend for 60 minutes at a location agreed between the parties on Saturday and Sunday without the Mother in attendance;
(c)At the cessation of time in paragraph 5(b) for a period of six weeks, each alternate weekend from 9:00am to 11:00am on Saturday and Sunday;
(d)At the cessation of time in paragraph 5(c) until Y’s second birthday, each alternate weekend from 9:00am to 4:00pm on Saturday and Sunday;
(e)At the cessation of time in paragraph 5(d) for a period of six months, each alternate weekend from 9:00am Saturday to 4:00pm Sunday;
(f)Upon Y’s third birthday until Y’s fourth birthday:
(i)From the afternoon/evening on Friday to the afternoon/evening Monday (or Tuesday if Monday is a public holiday or Sunday if X has on-site learning on Monday) each alternate weekend;
(ii)In the event the Father travels to NSW during school terms and provides the Mother with seven days’ notice, from Friday afternoon/evening to the commencement of school on Monday;
(g)Upon Y’s fourth birthday as follows:
(i)From the afternoon/evening on Friday to the afternoon/evening Monday (or Tuesday if Monday is a public holiday or Sunday if X has on-site learning on Monday) each alternate weekend;
(ii)In the event the Father travels to NSW during school terms and provides the Mother with seven days’ notice, from Friday afternoon/evening to the commencement of school on Monday;
(iii)From the morning of the first Saturday to the afternoon of the second Tuesday during Term 1, 2 and 3 school holidays;
(iv)For one half of the long summer holidays as agreed between the parties, failing agreement the first half in odd numbered years (including Christmas Day) and the second half in even numbered years;
(v)From the afternoon/evening on the Friday preceding Father’s Day to the afternoon/evening on the Monday proceeding Father’s Day (or Tuesday if Monday is a public holiday or Sunday if X has on-site learning on Monday)’
(vi)By Facetime/Telephone at all reasonable times;
(vii)Such other times as agreed between the parties in writing.
(5)The children spend time with the Mother when not in the care of the Mother as follows:
(a)From the afternoon of the second Tuesday to the commencement of school during Term 1, 2 and 3 school holidays;
(b)For one half of the long summer holidays as agreed between the parties, failing agreement the first half in even numbered years (including Christmas Day) and the second half in odd numbered years;
(c)From the afternoon/evening on the Friday preceding Mother’s Day to the afternoon/evening on the Monday proceeding Mother’s Day (or Tuesday if Monday is a public holiday)’
(d)By Facetime/Telephone at all reasonable times;
(e)Such other times as agreed between the parties in writing.
(6)The children’s flights to and from City B Airport be borne equally between the parties.
(7)The parties keep each other informed of their contact details and residential address at all times.
(8)The parties immediately inform the other of any medical, behavioural and/or scholastic issue of the children and authorise any professional and/or institution treating the children to communicate with the other.
(9)The parties authorise the children’s learning institutions to communicate with the other and to ensure the other receives all ordinary notices, newsletters, photographs etc.
(10)The parties be at liberty to attend any of the children's extra-curricular activities, school functions ordinarily attended by parents and assist at the school as permitted by the school and must otherwise ensure that the children attends upon their extra-curricular activities during time.
(11)The parties complete and provide a certificate of completion to each the other, the following programs:
(a)Post Separation Parenting Program;
(b)‘Young Children in Divorce and Separation from ‘Children Beyond Disputes’
;
(c)‘Watch, Wait and Wonder’ from ;
(d)‘Circle of Security’ from
;
(12)The parties download and communicate through the ‘Our Family Wizard’ app.
(13)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
ATTACHMENT B
(1)The children X born in 2013 (“X”) and Y born in 2021 (“Y”) live with the Respondent Mother in NSW.
(2)The parents have equal shared parental responsibility for all major long term decisions effecting the child.
THE CHILDREN’S TIME WITH THE FATHER IF THE COURT ORDERS THE CHILDREN RESIDE IN NSW WITH THE MOTHER
(3)That X spend time with the Father as agreed between the parties in writing, but failing agreement as follows:
(a)During school terms:
(i)Whilst ever X is being home-schooled (due to covid restrictions), each alternate weekend from Friday afternoon (or evening) until Monday afternoon; and
(ii)When X is participating in on-site learning at school, he will spend time with the Father each alternate weekend from Friday afternoon (or evening) until Sunday afternoon.
(b)Should the Father travel to NSW during school terms, he will be at liberty to collect X from school on Friday and return him to school on the Monday morning. The Father must give the Mother at least 7 days prior notice in writing.
(c)During school holidays at the conclusion of terms 1, 2, and 3, from the first Saturday of the school holidays until the Tuesday 10 days later.
(d)During the Christmas School holidays at the conclusion of term 4 as follows:
(i)On Christmas Day in 2021 from 9am until 2pm with changeover to take place at HH Oval, Suburb E.
(ii)In Christmas holidays commencing in odd numbered years from the first Saturday after New Years Day, until the Saturday 3 weeks later.
(iii)In Christmas holidays commencing in even numbered years from the first Saturday after the school term ends, until the Saturday 2 weeks later (with such time to include Christmas Day). X will then spend the final week of the holidays with the Father, from the second last Saturday of the holidays until the last Saturday of the holidays.
(e)Should Father’s Day fall on a weekend when the Father is not spending time with X, the Father will spend time with X for the duration of the weekend pursuant to Order 3(a)(ii).
(f)Should Mother’s Day fall on a weekend when the Father is spending time with X, the Father will forgo that weekend.
(4)For the purpose of X’s flights:
(a)X will fly from City B airport to Melbourne airport at the commencement of the Father’s time and X will fly from Melbourne airport to City B airport at the conclusion of the Father’s time.
(b)The parties will do all acts and things necessary to authorise X to fly through the unaccompanied minors program, unless either parent is reasonably able to travel with X.
(5)The cost of X’s flights will be shared equally between the parties and for this purpose:
(a)The Father will pay the full cost of X’s flights each alternate fortnight; and
(b)The Mother will pay the full cost of X’s flights during the other alternate fortnights that the Father does not pay the cost of X’s flights.
(6)Y will spend time with the Father as agreed between the parties, but failing agreement as follows:
(a)The Mother will travel to Victoria to facilitate the Father’s time with Y as follows:
(i)The Mother will travel to Victoria with Y (and X) for X’s time with the Father, until the end of 2021. On each day of the Father’s time, the Mother will make Y available to spend time with the Father at the Airport in Victoria or another location as can be agreed, for no less than two hours per day and the Father will ensure X is also in attendance. The Mother will be present for the visits and neither party will bring any other person with them for the duration of that time.
(ii)On Christmas Day in 2021 from 9am until 11am with changeover to take place at HH Oval, Suburb E.
(iii)Commencing from January 2022, the Mother will travel to Victoria with Y at least once each month during school Terms (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y for no less than three (3) hours for each day of her time in Victoria.
(iv)Commencing from July 2022, the Mother will travel to Victoria with Y at least once each month (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y for no less than four (4) hours for each day of her time in Victoria.
(v)On Christmas Day 2022 from 9am to 3pm.
(vi)Commencing from January 2023, the Mother will travel to Victoria with Y at least once each month (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y for no less than eight (8) hours for each day of her time in Victoria.
(vii)Commencing from July 2023, the Mother will travel to Victoria with Y at least once each month (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y overnight, from 5pm Saturday until 10am Sunday.
(viii)Commencing from January 2024, the Mother will travel to Victoria with Y at least once each month (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y overnight, from 12pm Saturday until 12pm Sunday.
(ix)Commencing from July 2024, the Mother will travel to Victoria with Y at least once each month (during a weekend when X is spending time with the Father) and arrange for the Father to spend time with Y overnight, from 9am Saturday until one hour prior to the return flights to NSW, when both X and Y will be returned to the Mother.
(x)Commencing from January 2023, during each school holiday period, the Mother will stay in Victoria for 5 nights whilst X spends time with the Father and Y will spend time with the Father:
(1)Commencing January 2023 from 9am until 4pm each day for 5 days.
(2)Commencing July 2023 from 12pm until 12pm on the first, third and fifth nights.
(3)Commencing January 2024 for the first 2 nights and the last 2 nights, with Y to be returned to the Mother on the third day and remain with the Mother overnight.
(4)Commencing July 2024 from 12pm on the first day, until 12pm 5 days later.
(5)The Mother will give the Father no less than 30 days written notice of her intended dates of travel.
(7)Commencing from 2025, Y will spend the same time with the Father as X, pursuant to Order 3.
(8)For the purpose of changeover pursuant to the time in Order 6, the parties will meet at the Airport in Victoria, or another location as agreed between the parties.
(9)That the cost of the Mother’s and Y’s flights will be shared equally between the parties and for this purpose:
(a)That the Mother will pay the full cost of the flights for herself and Y to travel to and from Melbourne for the first visit to Melbourne and every other visit thereafter;
(b)That the Father will pay the full cost of the flights for the Mother and Y to travel to and from Melbourne for the second visit to Melbourne and each alternate visit thereafter.
(10)The Father is at liberty to travel to NSW to spend time with Y and Mother will use her best endeavours to arrange for the Father to spend no less than two hours with Y on each day he is in NSW.
(a)The Father will give the Mother no less than 48 hours notice of his intention to travel to NSW and provide the Mother with his proposed dates of travel.
(11)When Y reaches 2 years of age, the Father will be at liberty to spend time with Y overnight when he travels to NSW and for this purpose:
(a)Unless otherwise agreed, the Father’s time with Y will be 12pm Saturday until 12pm Sunday.
(b)When Y reaches 3 years of age, the time will be 9am Saturday until 5pm Sunday.
(c)The Father will provide the Mother with the address where he is staying overnight.
CHILDREN’S TIME WITH THE FATHER IF THE COURT ORDERS THE CHILDREN RESIDE IN VICTORIA
(12)That X spend time with the Father as agreed between the parties in writing, but failing agreement as follows:
(a)During school terms each alternate weekend from the conclusion of school Friday (or 3pm if X is not in attendance at school) to 5pm Sunday.
(b)During school holidays at the conclusion of terms 1, 2, and 3 for the first half of such school holiday period in even numbered years and the second half in odd numbered years and unless otherwise agreed, changeover will take place at 12pm.
(c)During the Christmas School holidays at the conclusion of term 4 as follows:
(i)In Christmas holidays commencing in even numbered years from 12pm on the first Saturday after the school term ends, until 12pm on the Saturday 2 weeks later (with such time to include Christmas).
(ii)In Christmas holidays commencing in odd numbered years for 2 weeks in January, with the children to be returned to the Mother at 12pm on the day that falls 5 days prior to school returning in Term 1 (with such time not to include Christmas).
(d)Should Father’s Day fall on a weekend when the Father is not spending time with X, the Father will spend time with X for the duration of the weekend pursuant to Order 12(a)(i).
(e)Should Mother’s Day fall on a weekend when the Father is spending time with X, the Father will forgo that weekend.
(13)Y will spend time with the Father during school terms as agreed between the parties, but failing agreement as follows:
(a)Each alternate weekend for no less than two (2) hours on Saturday and Sunday and the Father will ensure that X is also in attendance. The Mother will be present for the visits and neither party will bring any other person with them for the duration of that time.
(b)Commencing from January 2022, each alternate weekend on both Saturday and Sunday for no less than three (3) hours.
(c)Commencing from July 2022, each alternate weekend on both Saturday and Sunday for no less than four (4) hours.
(d)On Christmas Day 2022 from 9am to 3pm.
(e)Commencing from January 2023, each alternate weekend for no less than eight (8) hours on both Saturday and Sunday
(f)Commencing from July 2023, each alternate weekend from 5pm Saturday until 10am Sunday.
(g)Commencing from January 2024, each alternate weekend from 12pm Saturday until 12pm Sunday.
(h)Commencing from July 2024, each alternate weekend from 9am Saturday until 12pm Sunday.
(i)For school holidays commencing from January 2023, with all such time to take place on days when X is spending time with the Father:
(i)Commencing January 2023 from 9am until 4pm for 5 consecutive days, for the first 5 days of the Father’s time with X.
(ii)Commencing July 2023 from 12pm until 12pm on the first, third and fifth nights of the Father’s time with X.
(iii)Commencing January 2024 for the first 2 nights and the last 2 nights of the Father’s time with X.
(iv)Commencing July 2024 from 12pm on the first day of the Father’s time with X, with X to be returned to the Mother at 12pm, 5 days later.
(j)Commencing from 2025, Y will spend the same time with the Father as X, pursuant to Order 12.
(14)For the purpose of changeover, the parties meet at an agreed location being the midpoint between their respective residences. If the parties cannot agree to a midpoint location, the parties will meet at the McDonald’s closest to halfway between their residences.
COMMUNICATION
(15)That the Father be at liberty to contact the children on days when he does not otherwise spend time with them, by telephone, Facetime or other electronic communication on Monday, Wednesday and Friday between either 8:30am – 9am or 4:30pm – 5:30pm.
(16)During the times that X is in the Father’s care without Y, the Father is at liberty to contact Y by telephone / video each day between either 8:30am – 9am or 4:30pm – 5:30pm.
(17)That the Mother is at liberty to contact X whilst he is in the Father’s care, by telephone, Facetime or other electronic communication at 9am each morning.
(18)The parent who is not spending time with the children on any given day, are at liberty to contact the children by telephone, Facetime or other electronic communication on their own birthday, the birthday of either child, or Christmas Day between either 8:30am – 9am or 4:30pm – 5:30pm.
SURNAME
(19)That the parties do all acts and things and sign all documents necessary to cause X’s surname to be changed to Jameson-Mooney.
0
13
0