Jansen & Kwan (No 2)
[2022] FedCFamC1F 729
Federal Circuit and Family Court of Australia
(DIVISION 1)
Jansen & Kwan (No 2) [2022] FedCFamC1F 729
File number(s): SYC 1403 of 2020 Judgment of: BRASCH J Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – CHILDREN – Where parties agree on most issues – Where December-January holiday time in dispute – Where one party sought overseas travel restrictions – Where one party sought orders about extra‑curricula activities Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 61DA, 68LA(5)(b), 79, 80(1)(h).
Cases cited: B and R and the Separate Representative (1995) FLC 92-636; [1995] FamCA 104
Carlson & Ors & Bowden [2008] FamCA 1064
G & C [2006] FamCA 994
Gabel v Yardley (2008) FLC 93-386; [2008] FamCAFC 162
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203; [2009] FamCAFC 166
Whisprun Pty Ltd v Dixon [2003] 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 20-21 September 2022 Place: Sydney Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Elmassian Lawyers Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Horton Rhodes Legal Counsel for the Independent Children’s Lawyer: Ms Conte-Mills Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 1403 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JANSEN
Applicant
AND: MR KWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
23 SEPTEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
1.All prior parenting Orders in relation to the Children of the parties:-
1.1X born in 2010 (“X”);
1.2Y born in 2013 (“Y”); and
1.3Z born in 2016 (“Z”)
(Collectively referred to as “the Children”) be discharged.
Parental Responsibility
2.That the parents shall have equal shared parental responsibility in relation to the Children.
Live with arrangements
3.That the Children shall live with the Father during school term time at all times other than when they are living with the Mother in accordance with these Orders.
4.That the Children shall live with the Mother during school term time as follows:
4.1In Week 1, commencing in the first week of each school term, irrespective of the day of the week on which school starts and each alternate week thereafter, from the commencement of school or 9am on Wednesday (in the event of a non-school day) until 9am on Friday (in the event of a non-school day) or the commencement of school on Friday;
4.2In Week 2, commencing in the second week of each school term and each alternate week thereafter, with the Mother from the commencement of school or 9am on Thursday (in the event of a non-school day) until 9am on Monday (in the event of a non-school day) or the commencement of school on Monday; and
4.3Except as set out at Order 6, where a public holiday falls following the Mother’s weekend with the children during school term time, the children are to remain in the Mother’s care until the commencement of school on the next day, being a Tuesday.
4.4At any other time as may be agreed between the parties in writing.
5.That unless otherwise agreed between the parties in writing, the Children shall live Mother and the Father during school holiday periods as follows:
5.1During the school holiday period following Term 1 and Term 3, commencing from the Term 1 2023 school holidays (it is agreed that the Term 3 2022 school holiday period will be spent by the Children as per the Orders of 1 March 2021), as follows:
5.1.1In even years, with the Father from the conclusion of school on the last day of the school term until 10am on the second Saturday of the holiday period and then with the Mother from 10am on the second Saturday of the holiday period until the commencement of school on the first day of the following school term;
5.1.2In odd years, with the Mother from the conclusion of school on the last day of the school term until 10am on the second Saturday of the holiday period and then with the Father from 10am on the second Saturday of the holiday period until the commencement of school on the first day of the following school term.
5.2During the school holiday period following Term 2, as follows:
5.2.1In even years, with the Father from the conclusion of school on the last day of the school term until 10am on the second Wednesday of the holiday period and then with the Mother from 10am on the second Wednesday of the holiday period until the commencement of school on the first day of the following school term;
5.2.2In odd years, with the Mother from the conclusion of school on the last day of the school term until 10am on the second Wednesday of the holiday period and then with the Father from 10am on the second Wednesday of the holiday period until the commencement of school on the first day of the following school term.
THE COURT ORDERS THAT:
5.3During the Term 4 Christmas holiday period at the end of the school year:
5.3.1In 2022, with the Father from the conclusion of school on the last day of school term until 10am on the second Thursday thereafter and each alternate fortnight thereafter with each changeover to occur at 10am on Thursday and with the Mother in each intervening fortnight until the commencement of school.
5.3.2In 2023, and each year thereafter:
5.3.2.1In even numbered years, with the Father for the first half of the school holidays and with the Mother in the second half of the school holidays, with each changeover to occur at 10am;
5.3.2.2In odd numbered years, with the Mother for the first half of the school holidays and with the Father in the second half of the school holidays, with each changeover to occur at 10am.
THE COURT ORDERS BY CONSENT THAT:
5.4For the purposes of school holiday time:
5.4.1The holiday period is taken to commence for all of the Children upon the conclusion of school for the first of the Children; and
5.4.2The holiday period is taken to end for all of the Children upon the commencement of school for the first of the Children.
Special Occasions
6.That notwithstanding any other Order, unless otherwise agreed between the parties in writing, on special occasions the Children are to spend time with the parties, as follows (for the avoidance of doubt, the school term time arrangement as Ordered by the Court continues to run notwithstanding that the Children may be in the care of another parent):
6.1With the Father from 5pm on the day prior to Father’s Day until 5pm on Father’s day;
6.2With the Mother from 5pm on the day prior to Mother’s Day until 5pm on Mother’s day;
6.3On each of the Children’s birthdays, with the parent with whom the Children are not in the care of on the night of their birthday pursuant to Order 3 to 5 above:
6.3.1On a school day, from the conclusion of school until 6pm; and
6.3.2On a non-school day, from 9am until 2pm.
6.4On the Mother’s birthday, if not in the care of the Mother on the night of the Mother’s birthday pursuant to Order 3 to 5 above:
6.4.1If the birthday is on a school day, from the conclusion of school on the Mother’s birthday until 9am the following day or the commencement of school; and
6.4.2If the birthday is on a non-school day, from 5pm the day before the Mother’s birthday to 5pm on the day of the Mother’s birthday. If the day before the Mother’s birthday is a Friday, the Mother is to collect the children from school at the conclusion of school.
6.5On the Father’s birthday, if not in the care of the Father on the night of the Father’s birthday pursuant to Order 3 to 5 above:
6.5.1If the birthday is on a school day, from the conclusion of school on the Father’s birthday until 9am the following day or the commencement of school; and
6.5.2If the birthday is on a non-school day, from 5pm the day before the Father’s birthday to 5pm on the day of the Father’s birthday. If the day before the Father’s birthday is a school day, the Father is to collect the children from school at the conclusion of school.
6.6During the Easter period, as follows:
6.6.1In even numbered years, with the Father from 9am Good Friday until 12pm on Easter Sunday and with the Mother from 12pm on Easter Sunday until 9am or the commencement of school on the Tuesday following Easter Monday; and
6.6.2In odd numbered years, with the Mother from 9am Good Friday until 12pm on Easter Sunday and with the Father from 12pm on Easter Sunday until 9am or the commencement of school on the Tuesday following Easter Monday.
6.7For the period from Christmas Eve to Boxing Day as follows:
6.7.1In even numbered years:
6.7.1.1With the Father from 12pm Christmas Eve until 5pm Christmas Day;
6.7.1.2With the Mother from 5pm Christmas Day until 5pm Boxing Day; and
6.7.2In odd numbered years:
6.7.2.1With the Mother from 12pm Christmas Eve until 5pm Christmas Day; and
6.7.2.2With the Father from 5pm Christmas Day until 5pm Boxing day.
6.8With the Father for the celebration of Lunar New Year, as follows:
6.8.1From 10am to 5pm on 22 January 2023; and
6.8.2From 2024 onwards, from 10am to 5pm on the first Sunday on or after the start of the 15 day Lunar New Year Period;
6.8.3If the time with the Father provided for in Orders 6.8.1 and 6.8.2, falls during the Mother’s time with the Children, the Mother may have make-up time on the following Sunday the Children are with the Father if she so elects in writing to the Father not later than 7 days prior to the Father’s time in accordance with this Order; and
6.8.4In the case of Order 6.8.2, if the relevant first Sunday of the Lunar New Year falls during the Mother’s holiday time with the children and she is not in the Sydney Metropolitan area on that day, the children are not to spend time with the Father pursuant to this Order.
6.9For the avoidance of doubt, school term time and holiday time ordered by the Court continues to run notwithstanding that the Children may be in the care of another parent during a special occasion pursuant to this Order 6 above.
Changeovers
7.That changeovers in relation to the Children shall occur at the Children’s school on school days and if it is not a school day then changeover will otherwise occur on the kerbside of the front of the home of the parent where the Children’s time has concluded.
Telephone Number and Address of Children
8.That both parents advise and keep the other advised of their respective, landline, mobile telephone numbers, e-mail address, Skype address and any changes thereto at all times within 24 hours of any such change occurring and, in the event that either parent moves from where they live, that parent will notify the other (2) weeks prior to such move of any change of address.
Medical / welfare matters
9.That at all times each parent shall inform and keep the other informed of the Children’s health and/or health related issues, and in the event that the Children are required to undertake a medical procedure, the parties must agree in writing to such procedure being undertaken, except in the case of an emergency as recommended by the relevant child’s treating medical practitioner.
10.That each parent must consent in writing to any of the Children attending any specialist medical / therapist’s appointment(s) (excluding general medical general practitioner appointments) before such an appointment is arranged. In the event of a disagreement between the parties, each parent be at liberty to consult with the Children’s treating General Practitioner at the Suburb M Medical Practice or the Children’s regular General Practitioner and the parties are to follow the recommendation of that Practitioner.
11.That each parent shall inform the other in writing as soon as practicable of any specialist medical / therapist’s appointment(s) (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the Children.
12.That each parent provides to the other a copy of any report prepared by any such specialist medical consultant or relevant health professional within 48 hours of receipt of same and otherwise in a timely manner.
13.That in the event that the Children or either of them is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the Children or either of them attends.
14.That:
14.1Each of X and Y (and Z from the time he turns 8 years of age) attend upon the school counsellor (at that child’s school from time to time) as recommended by the school counsellor and continue to do so, as recommended by the school counsellor, from time to time, unless otherwise agreed between the parties in writing;
14.2The Children be afforded privacy in respect of any counselling or therapy received.
15.In respect of the Children’s school and schooling:
15.1X is to attend B School for high school, commencing in 2023, unless otherwise agreed between the parties in writing;
15.2To the extent the Children attend a fee-paying school, the Father is to meet the fees of same;
15.3The parties be at liberty to provide a copy of Orders 1 to 22 of these Orders to the Children’s school;
15.4Each parent shall be permitted to attend the Children’s school for parent/teacher events, school carnivals, school assemblies and any other event to which parents are ordinarily invited;
15.5Each parent shall be permitted to receive from the Children’s school copies of school reports, school newsletters, school photograph order forms and any other form of correspondence and communication ordinarily sent to parents.
Contact
16.That the parents continue to use the "Our Family Wizard" App for the parents’ communication about parenting issues referrable to the Children.
17.Each parent be at liberty to call the Children by way of call to the other parent’s mobile number at any time as agreed, or failing agreement, between 4pm and 6pm every second day that the Children are not with that parent, and the parent with whom the Children are with at that time shall facilitate such calls.
Activities
18.The parent with whom the Children are living shall deliver and collect the Children from normal extra-curricular activities.
19.If a parent is not able to make arrangements for the delivery and collection of a Children to and from an extra-curricular activity on a weekday or weekend, that parent is to seek the other parents’ assistance in writing on reasonable notice and in the event of a weekday delivery to an activity, the parent who is assisting shall collect the child or children from school and deliver them to the activity.
20.Each parent be restrained by injunction from interfering with any of the Children at any extra-curricular activities (including trainings) or from removing a child or causing a child to remove himself from the direct care and supervision of the parent whose care that child is in at that time.
THE COURT ORDERS THAT:
21.That in the event that the children or a child are to be enrolled in an extra-curricular activity that occurs in each parent’s time with the children, then the parents are to do all acts and things to ensure that the organisation / club that they are enrolled in is the one located closest to the children’s school, unless otherwise agreed in writing between the parties.
It is noted that the children undertake the following activities:
21.1Z undertakes language lessons on Monday afternoons online, Sport 1 training at Suburb N with MM Sports Club during the Winter season, summer Sport 1 matches in Term 4 with MM Sports Club on Monday afternoons, Sport 2 on Tuesday afternoons in Suburb GG, music lessons during school time, Sport 2 at school after school on Friday, Sport 1 matches on Saturday during the Winter season with the MM Sports Club;
21.2Y undertakes language lessons on Monday afternoons online, music with a music group through school at 7.15am on Wednesday mornings, music lessons during school time, Sport 2 on Tuesday afternoons in Suburb GG, Sport 3 training during school time in Winter, Sport 3 matches with school on Saturday morning during Winter, Sport 3 at NN Sports Club on Friday night (commencing in Term 4 2022); and
21.3X undertakes language lessons on Monday afternoons online, music lessons during school time, Sport 2 on Tuesday afternoons in Suburb GG, Sport 3 training at school during school time in Winter, Sport 3 training after school at Suburb N with OO Sports Club in Winter; club Sport 3 matches on Friday or Sunday with OO Sports Club in Winter, school Sport 3 matches on Saturday in Winter.
THE COURT ORDERS BY CONSENT THAT:
22.Notwithstanding Order 20, each parent be at liberty to enrol a child in an activity (with any Club / Association of that parent’s choosing) where that activity occurs and continues to occur exclusively during that parent’s time with the relevant child.
23.Without admissions, that each parent be restrained by injunction from:
23.1Making critical or derogatory remarks in relation to the other parent in the presence or hearing of the Children and that each parent do all things necessary to ensure that, as far as practicable, no third parent makes critical comments about the other parent in the presence or hearing of the Children discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with, or in the presence or hearing of the Children and that each parent do all things necessary to ensure that, as far as practicable, no third parent discusses these proceedings to, with, or in the presence or hearing of the Children;
23.2Showing the Children any documents relating to these proceedings;
23.3Questioning the Children in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent;
23.4Encouraging the Children to express particular views or preferences in relation to their living arrangements or the time they spend with the other parent;
23.5Passing information or messages in relation to the parenting issues between the parties through the Children;
23.6Co-sleeping with the Children, unless instigated by the Children after they have been put to bed;
23.7Filming or photographing the Children’s genitalia;
23.8Co-bathing with the Children;
23.9Making allegations of abuse or improper conduct against the other parent to any therapist of the Children, any staff member of the school at which the Children attend, from time to time, coaches of Children’s sporting teams or tutors of the Children, or parent of the Children’s friends;
23.10Distributing any documents obtained in these proceedings, including but not limited to financial disclosure documents, any document filed with the Court, documents produced under subpoena, to any person without the permission of the Court.
24.Within 7 days of these Orders, the Mother will do all things necessary to cause:
24.1Mr HH;
24.2Any person (other than the Mother) who has or had access to ...@... and …@...;
24.3Any other person who the Mother has provided copies of or access to any documents she has obtained in these proceedings, excluding material provided by the Mother to her solicitors and other professionals being provided documents by the Mother’s solicitors;
to destroy all documents the Mother have obtained in these proceedings, including but not limited to financial disclosure documents, any document filed with the Court, documents produced under subpoena, which the Mother has provided them with copies of, access to, or otherwise. Within 21 days of the date of these Orders, the Mother is to instruct her solicitors to write to the Husband’s solicitors advising the names of the persons referrable to Order 24.1 to 24.3 and detailing the steps she has taken under Order 24.1 to 24.3 and the persons’ responses in that regard.
International Travel
25.That the children, X born in 2010, Y born in 2013, and Z born in 2016 be permitted to travel overseas pursuant to these Orders.
26.That the children, X born in 2010, Y born in 2013, and Z born in 2016 have their names removed from the Airport Watch List.
AND THE COURT REQUESTS THAT the Australia Federal Police give effect to these Orders by removing the names of the children X (a male) born in 2010, Y (a male) born in 2013, and Z (a male) born in 2016 from the Airport Watch List at all points of international arrivals and departures in Australia.
THE COURT ORDERS THAT:
27.Unless otherwise agreed in writing between the parties, the parties be permitted to take one or more of the Children out of Australia on holidays, as follows:
27.1During the Term 4 Christmas Holiday period at the end of 2022 for up to two weeks;
27.2During the Term 4 Christmas holiday period commencing at the end of the 2023 school year and thereafter, for up to four weeks with such time to occur in odd years for the mother and in even years for the father;
27.3During the Term 2 School Holiday period for up to three weeks with such time to occur in odd years for the mother and in even years for the father.
THE COURT ORDERS BY CONSENT THAT:
27.4Upon the following conditions:
27.4.1That the travelling parent provide to the non-travelling parent with no less than 60 days written notice prior to the proposed travel:
27.4.2Dates of departure from and return to Australia;
27.4.3Copy of return airline tickets 30 days before the date of departure;
27.4.4Copy of itinerary provided by travel agent or airline 30 days before the date of departure;
27.4.5Accommodation details and copies of any bookings for accommodation, including the names, addresses, telephone and email contact details of where and with whom the Children will be staying 30 days before the date of departure;
27.4.6A copy of the child’s travel insurance policies and certificates 30 days before the date of departure, which include as a minimum, hospital, and emergency medical cover, being private insurance apart from free public health care provided in the relevant country;
27.4.7Unless agreed in writing, the parents are restrained from travelling with the Children to any country which is not a member of the Hague Convention on the Civil Aspects of International Child Abduction as in force with Australia, current as at the date of the proposed travel, and/or to any country which is listed by the Australian Department of Foreign Affairs and Trade (or its equivalent) as a Level 4 – Do not travel (or its equivalent) from time to time;
27.4.8To the extent that any travel impedes the non-travelling parent's time with the Children, the travelling parent shall accommodate make-up time in the remaining school holiday period upon return of the Children and / or in the immediately following two school holiday periods, unless otherwise agreed in writing between parties. The non-travelling parent is not required to have make-up time and may elect in writing not to do so. Subject to this Order, the dates and times of any make-up time is at the sole choosing of the non-travelling parent and must be communicated to the travelling parent in writing on 30 days’ notice before the make-up time is to occur. Such make-up time cannot be used to vary special occasion time provided for at Order 6;
27.4.9Travel may not occur on or during school days, unless agreed between the parties in writing;
27.4.10The travelling parent shall facilitate the Children communicating with the non-travelling parent by telephone and/or any other communication by electronic means on no less than two occasions per week of travel;
27.5Where the parties’ proposed travel conflicts, irrespective of who provides notice first, the Mother’s travel will take priority in odd years and the Father’s travel will take priority in even years;
27.6Overseas travel may not occur during the period 23 to 27 December in even years, so as to ensure the Father and the Mother and Children may have Christmas at least once every two years in Australia.
Passports
28.The Children’s passports be held by the parties, as follows:
28.1The Mother holds all Country JJ passports for the Children;
28.2The Father holds all Australian and United Kingdom passports.
29.The parties will do all things necessary to apply for and renew any passports for the Children for which the Children may be eligible (including but not limited to Australian, United Kingdom, Country JJ passports) no less than six months before the expiration of the Children’s passports and the parties must:
29.1Complete all relevant sections and signing the Passport Application forms;
29.2The Father pay all Australian and United Kingdom passport fees and the Mother pay all Country JJ passport fees in the manner and timeframe required;
29.3Providing all supporting documentation necessary for the Applications; and
29.4Adhering to any time requirements for lodgement and Passport interviews.
30.If either parent is permitted to travel overseas with the Children pursuant to these Orders above, the parent holding a passport shall release all of the Children's passport(s) in his/her possession to the travelling parent at least 20 days prior to the date of her proposed travel and the travelling shall return the relevant Children's Passport(s) to the non-travelling parent within 20 days of returning to Australia.
31.The Wife’s half share of Dr H’s fees paid by the Husband in the first instance are to be reimbursed by the Wife to the Husband at the conclusion of the property proceedings.
AS TO INTERIM PROPERTY MATTERS, BY CONSENT IT IS ORDERED:
32.That within 14 days of the date of these Orders, the Father caused to be paid to the Mother the sum of $175,000 by way of partial property distribution pursuant to section 79.
33.That in the event that the Father makes the payment at Order 1 above as a distribution to the Wife either from the Kwan Family Trust or the T Family Trust, that the Husband:
33.1Provide to the Mother all documents necessary for the Mother to record this payment by way of income in her taxation return for the financial year ending 30 June 2023; and
33.2Pay to the Mother the sum which represents any tax payable by the Mother has a result of the distribution from the trust.
IT IS NOTED that, depending on how the Father makes payment of the amount referred to in Order 30, a capital gains tax liability may arise in the name of the Father or in the name of the Kwan Family Trust or the T Family Trust.
34.That Orders 11 and 13 of the Mother’s Second Amended Application in a Proceeding filed 1 April 2022 be dismissed.
35.As to final parenting matters and interim property matters referred to in these Orders, there be no order as to costs.
THE COURT ORDERS THAT:
36.The Independent Children’s Lawyer is discharged.
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 the pseudonym Jansen & Kwan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are my ex tempore reasons. For the benefit of the parties, I will provide a written copy of these reasons, which I will produce from the transcript correcting only for grammar and to make the spoken word more amenable to reading.
These reasons and orders relate to final parenting orders and an interim spouse maintenance application. The parties also seek final property orders, however on 20 April 2022 the court agreed to bifurcate the parenting and property proceedings, such that the parenting and interim spousal maintenance proceedings were listed to be heard this week, commencing Tuesday 20 September 2022 for four days, with the final property dispute to be listed at a later date.
The applicant mother, Ms Jansen, born in 1975 (“the mother”) initiated proceedings on 2 March 2020 by filing an Initiating Application in the Federal Circuit Court, as it was then. The respondent father, Mr Kwan, born in 1980 (“the father”) joined issue with the proceedings on 20 April 2020 by filing a Response to an Initiating Application.
The parties sought parenting orders in relation to their three children:
(a)X, born in 2010 (“X”) soon to turn 12 years;
(b)Y, born in 2013 (“Y”), aged nine at the time of trial; and
(c)Z, born in 2016 (“Z”), aged six and a half at the time of trial.
The children currently live with the father and spend time with the mother five nights a fortnight, and half of all school holidays, albeit currently week about for the post-Term 4 holidays.
At the start of the trial, and pursuant to s 68LA(5)(b) of the Family Law Act 1975 (Cth) (“the Act”), the Independent Children’s Lawyer (“ICL”) provided the court with an outline of her discussions with the children that occurred only on the Saturday proceeding. X wanted 50:50, Y wanted more time and suggested a Wednesday night, and Z, the youngest was more equivocal but was happy with more time.
The parties also had the benefit of a very recent updated report from the Single Expert Dr H, dated 1 September 2022. The ICL’s Minute of Order was framed to reflect Dr H’s recommendations, and what the children had said. B and R and the Separate Representative (1995) FLC 92-636 (“B & R”) at 82419-82420, reminds us that the ICL has many roles, including to:
Facilitate an agreed resolution to the proceedings.
This came from the guidelines in P and P (1995) FLC 92-615, which the Full Court in B & R said, at 82419, was a helpful.
The separate representative may, depending on the circumstances, indicate to the court the orders which the separate representative proposes either at the commencement of the hearing or in final address.
I note we have ICL’s now, but the concept is the same.
The court – and ultimately the parents – were greatly assisted by the ICL doing so. Consequently, I invited the parties to consider putting their adult differences aside and give deep reflection to what the ICL reported about the children and the recommendations of the Expert.
The proposed consent orders - parenting
To their very great credit they obviously did. Over the course of day one and two of what would have been the trial, the parties – no doubt ably assisted by their legal representatives – were able to come to terms on almost all issues. It will be of great benefit to the children to know that their parents had done so. The children are aware of the adult dispute. The children know their parents have been fighting about them. I have no hesitation in saying the numerous agreements which the parents have reached, supported by the ICL, will lift a considerable burden off the children’s shoulders.
In those circumstances, I do not consider it helpful to recite long details of the parents many, many disputes. Suffice to say, I will simply outline their respective positions. As said, the ICL proposed a Minute of Order reflecting the children’s views and Dr H’s primary recommendations. That was, essentially, to increase the children’s time with their mother from the current five nights a fortnight to seven nights a fortnight. It was also proposed that if the major long term decisions, which actually loomed for these children were solved (for example choice of school for X), then equal shared parental responsibility was appropriate.
I have referred to Dr H’s primary positon, because he also had a default position, that if equal time was not feasible or in the children’s best interest as the parents could not communicate and collaborate, then he proposed a 9:5 arrangement with a similar structure to that at the moment. Or, that if the differential between the parents was significantly large then an 11:3 arrangement would be the least disruptive for the children. In that event, Dr H did not recommend who had 11, or who had three. Both parties latched on to that, with both proposing they have the 11 nights. The mother’s trial affidavit spoke to a week about proposal, but it was in her belated Outline where she sought orders that she have 11 nights a fortnight.
The parties however were able to shift from those polarised positions and agree on what their representatives referred to as the “big ticket items” (i.e., term time and parental responsibility) as well as many specific issue orders.
I will make the proposed consent orders. I consider them to be in children’s best interests. They comfortably fit within the Experts recommendations, the children’s very recent wishes, and are entirely consistent with the objects and principles of Part VII of the Act at s 60B, and importantly, within the primary considerations set out in ss 60CC(2) and (2A) of the Act which indicates I must craft orders that promote the child’s meaningful relationship with their parents, that is safe. The proposed consent orders also give recognition to various of the additional considerations in s 60CC(3), for example, s 60CC(3)(a), being the children’s wishes, as well as s (3)(b), children’s relationship with each parent, s (3)(f), capacity to provide, and s (3)(g) the children’s rich cultural backgrounds.
The proposed Consent Orders – property
The mother sought interim spouse maintenance in the sum of $2,500 per week. The father proposed the mother have $100,000 to be characterised at trial; the head of power identified was s 79, and to that I would add s 80(1)(h).
Ultimately, the parties agreed that the mother receive $175,000.
I have no hesitation in making that order. The property pool (as it currently sits) is, on the father’s case, approximately $3.6 million. The father recognises the mother ought be entitled to a property adjustment at the end of the day. There is capital available. I am also mindful of what was said in Strahan & Strahan (Interim Property Orders) (2009) 42 Fam LR 203 and Gabel & Yardley (2008) FLC 93-386 (“Gabel”) about interim property orders and the exercise of power under ss 79, 80(1)(h). In those circumstances, it is just and equitable that the mother have these funds, and that I consider their characterisation at trial.
I note the proposed consent orders list it as a partial property distribution, but I will still be able to characterise it at trial. I refer to Gabel mentioned previously.
What remained in dispute
The parties were unable to resolve three issues:
(a)What time would occur over the holiday period after Term 4. The father proposed that those holidays for 2022, i.e. the end of this year, continue as a week about arrangement, as had previously been ordered by Altobelli J on an interim basis on 1 March 2021. Then, for the holidays after Term 4 2023 and thereafter, he proposed the holidays be a fortnight about arrangement. The mother and ICL proposed half holidays for Term 4 commencing this year – I was told the children’s school/s had about eight weeks of holidays, meaning the proposal translated into effectively, a month with each parent;
(b)Allied to the previous issue was the father’s proposal with respect to some limits on overseas travel. I will extract that proposal below. This was opposed by both the ICL and the mother. They both submitted that if I made their half-holiday block proposal for post-Term 4 holidays, then the father’s proposal was redundant; and
(c)The mother sought an order that, “During school terms when any child is not engaged in a winter sport after school on a Wednesday, the mother will choose an activity to occur on that Wednesday”. This was supported by the ICL and opposed by the father.
BACKGROUND
The parties agreed I give short form reasons given the parameters of the dispute. Nevertheless, it is important I give some background and touch upon the principles I must consider when determining the matters in issue.
The parents met in 2006 and commenced living together early that year. They married in 2009. I have already referred to the three children and their dates of birth.
On the mother’s case the parents separated under one roof in September 2018; on the father’s case early 2020. It does not matter for these disputes.
In early 2020 the father made a report to the police. An Apprehended Domestic Violence Order (“ADVO”) was made.
As said, on 2 March 2020 the mother commenced proceedings. On 23 April 2020 consent orders were made for equal time.
On 16 July 2020 Dr H’s first report was released. On 12 August 2020 Dr H gave an additional report/answers to questions. His essential recommendation was a 9:5 arrangement in the father’s favour.
Between mid and late 2020 the mother attended upon Mr Q for psychological treatment primarily for anger management.
In late 2020 the ADVO application against the mother was dismissed.
On 1 March 2021 the current parenting orders were made, the gist of which was that the children spend five nights a fortnight with the mother, half of all school holidays, with a week about arrangement for the Term 4 holidays, a schooling decision, and family therapy.
In mid-2021 the mother commenced seeing Ms DD.
On 23 February 2022 the mother filed an amended Application in a Proceeding seeking international travel, and to spend additional time with the children when her parents visited Australia. The next day, 24 February 2022, the father filed an Application in a Proceeding to change X’s school to LL School.
On 30 March 2022 the matter was transferred to this Division.
On 20 April 2022 the international travel and spouse maintenance applications were adjourned to final hearing, the father’s school application was dismissed, orders were made that the children be vaccinated, and for the appointment of an ICL.
On 27 April 2022 the mother filed an Application in a Proceeding seeking to the discharge Dr H as Single Expert. This was dismissed by me on 17 May 2022.
On 1 September 2022 Dr H released his updated report.
EVIDENCE and witnesses
The applicant mother relied upon the following documents:
·Initiating Application filed 2 March 2020;
·Notice of Risk filed 2 March 2020;
·Second Amended Application in a Proceeding filed 1 April 2022;
·Affidavit of Ms Jansen filed 12 September 2022;
·Financial Statement filed 12 September 2022;
·Affidavit of Ms Jansen filed 12 June 2022;
·Affidavit of Ms Jansen filed 16 September 2022;
·Affidavit of Ms DD filed 27 April 2022;
·Affidavit of Ms DD filed 12 September 2022; and
·Case Outline filed 19 September 2022.
The respondent father relied upon the following documents:
·Affidavit of Mr Kwan filed 10 August 2022;
·Affidavit of Ms KK filed 10 August 2022;
·Amended Response to Second Amended Application in a Proceeding filed 1 April 2022 (as to financial matters);
·Financial Statement filed 30 August 2022;
·Affidavit of Mr Kwan filed 30 August 2022; and
·Case Outline filed 19 September 2022.
The ICL relied upon the following documents:
·Report of Dr H dated 16 July 2020;
·Letter/Additional Report of Dr H dated 12 August 2020;
·Updating Single Expert Report of Dr H dated 1 September 2022; and
·Case Outline filed 19 September 2022.
The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon [2003] 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII as follows:
(1) The objects are to ensure that the best interests of children are met by:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” [8].
For overseas travel, I have taken note of authorities such as Line & Line (1997) FLC 92-729 (“Line”) which indicates I consider the degree of risk of a parent not returning with the children, including their ties to Australia, motives to return or not, and whether the proposed country is a Hague Convention country.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It is not necessary that I delve into what else s 61DA says, or the consequences that flow for time considerations, (i.e., equal time, then significant/substantial time, or considering time at large) because the parties are agreed on an order for equal share parental responsibility and for time, other than the narrow disputes before me.
I do however find that in proposing equal shared parental responsibility, and more so, an 8:6 arrangement and half holidays for the holidays after Terms 1, 2 and 3 of school, and also equal time (differently formulated) for Term 4, each parent is implicitly acknowledging that the other parent is a “good enough” parent. See for example Carlson & Ors & Bowden [2008] FamCA 1064 at [122]:
I am strengthened in that view by the evidence of Dr M with respect to her opinions as to whether the mother (and father) were each good enough parents”. That expression was used by the doctor as a term of art – that is by reference to work done principally by the British psychoanalyst Winnicott. In essence, the expression emanates from the notion that all parents will inevitably bring failings to the task of parenting. Children can tolerate these failings and, indeed flourish, despite them; parenting need not be perfect but it must be “good enough”.
The other thing that came from the proposed consent orders, is that it cannot be said that either parent (or the ICL) viewed the other as posing an unacceptable risk to the children. I agree. In reaching that conclusion, I take comfort from Dr H recent report where he opined:
As I have indicated earlier, I am of the view that although [Ms Jansen] continued to manifest uncontained and impulsive behaviour in the presence of, and at times towards, the boys at least up until the time of my first assessment and probably still to some degree until the orders of March 2021 were made, it is also my view that there has been a considerable settling of her behaviour and her emotions subsequent to the release of my report, and probably even more so since the orders of March 2021 came into force. I was not persuaded that there have been incidents of either significant abuse or neglect since the new orders came into force.
(Updated Report of Dr H, dated 1 September 2022, p.26-p.27)
I will however say more about risk later in these reasons as the father sought to limit the children’s time with their mother in the post-Term 4 holidays to shorter block time, and the length of overseas travel because of, inter alia, risk. Although, appropriately on the state of the evidence and agreements reached, it was not submitted the mother was an unacceptable risk.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to s 60CC(2)(b).
A meaningful relationship
I will touch on the meaningful relationship concept, because it will assist me in determining the issues in dispute, as narrow as they seemingly are.
In considering a meaningful relationship per s 60CC(2)(a), in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests [122].
In McCall & Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the children having a meaningful relationship with a particular parent will be of advantage to the children in the future.
The parties, by their proposed consent orders plainly agree there is an advantage to the children in the future of having a meaningful relationship with both parents. I agree, and I do so because it is plain that the children want to spend time with each parent and that each parent has much to offer these children.
Protection from harm
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Here, allegations are made by each party against the other. However, it is also to be observed that despite the allegations made by both, neither parent nor the ICL proposed a parent’s time with the children be supervised, or there be no contact. Similarly, neither parent nor the ICL said a parent, posed an unacceptable risk to the child; see s 60CG.
The father did however submit that there were risk factors which warranted the shorter blocks of holiday time after Term 4 and the travel arrangements he proposed. I will return to that.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. Those considerations can be conveniently grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Subsection (3)(a) – any views expressed by the children and any factors (such as each of the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;
·Subsection (3)(b) – the nature of the relationship of the children with each of the children’s parents and other persons, including any grandparent or other relative of the children;
·Subsection (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the court thinks relevant; and
·Subsection (3)(h) – issues pertaining to the culture of the children if the children are Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision-making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Subsection (3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children;
·Subsection (3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
·Subsection (3)(f) – the capacity of each of the children’s parents, and any other person, to provide for the needs of the children, including emotional and intellectual needs; and
·Subsection (3)(i) – the attitude to the children, and parental responsibilities, by each of the children’s parents.
Issues of family violence:
·Subsection (3)(j) – any family violence involving the children or a member of the children’s family; and
·Subsection (3)(k) – any family violence order that applies or has applied involving the children or a member of the children’s family and if applicable, taking into account a number of stated matters.
Effect of change:
·Subsection (3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on each of the children of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the children have been living.
Practical difficulty of implementation:
·Subsection (3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
·Subsection (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Other relevant matters:
·Subsection (3)(m) – any other facts or circumstances the court considers relevant.
The disputeS
Parenting arrangements post-Term 4 holidays
Length of overseas travel
I have already set out the parameters of these disputes, which in summary is whether the post‑Term 4 holidays move to half holidays, i.e. about a month for the children with each parent, or be staged as the father proposed, week about this year, then fortnight about from 2023. The parties are at one that equal time apply; the dispute is how.
Consistent with his approach to post-Term 4 holiday time, the father also proposed restrictions on the length of overseas travel.
Counsel addressed me on these two issues as a “bundle” and I will follow their approach as the same considerations apply.
Specifically, the father sought these orders:
•5.3.1 In 2022, with the Mother from the conclusion of school on the last day of school term until 10am on the following Thursday and each alternate week thereafter with each changeover to occur at 10am on Thursday and with the Father in each intervening week until the commencement of school;
•5.3.2 During the Term 4 Christmas holiday period commencing at the end of the 2023 school year and each year thereafter:
•5.3.3 In 2022, with the Father from the conclusion of school on the last day of school term until 10am on the second Thursday thereafter and each alternate fortnight thereafter with each changeover to occur at 10am on Thursday and with the Mother in each intervening fortnight until the commencement of school;
•5.3.4 In odd numbered years, with the Mother from the conclusion of school on the last day of school term until 10am on the second Thursday and each alternate fortnight thereafter with each changeover to occur at 10am on Thursday and with the Father in each intervening fortnight until the commencement of school.
•27.1 - From the date of these Orders until the commencement of school in Term 1, 2025, for a period not exceeding two (2) weeks in each calendar year and no overseas trip is to exceed the length of 7 nights in duration, unless otherwise agreed by parties in writing:
•27.2 - From the commencement of school in Term 1, 2025, onwards, for a period not exceeding three (3) weeks in each calendar year and no overseas trip is to exceed the length of three weeks in duration, unless otherwise agreed by parties in writing;
The mother sought the following orders, and was supported by the ICL:
•i. In even numbered years, with the Father for the first half of the school holidays and with the Mother in the second half of the school holidays;
•ii. In odd numbered years, with the Mother for the first half of the school holidays and with the Father in the second half of the school holidays:
•Unless otherwise agreed in writing between the parties, the children be permitted to travel internationally on holidays with either parent as follows:
o a. For up to 4 weeks during the Term 4 School Holidays and for up to 3 weeks in the Term 2 School Holidays with such time to occur in odd years for the mother and in even years for the father
For the father it was submitted:
(a)B School has approximately eight weeks holidays after Term 4, so half would be approximately four weeks each;
(b)The week about for end of 2022 followed from Altobelli J’s order of 1 March 2021;
(c)There was a history to the matter which warranted a cautious approach;
(d)The most time the children have had with their mother is 11-12 days;
(e)A raft of recommendations were made for the mother to deal with her mental health and anger management, but “we don’t see much in the mother’s material about how she has addressed these things” (that was my note of the submission, which may not be word for word, but that is certainly the gist of it). I was taken to various annexures to the mother’s affidavit in support of this;
(f)In answer to my question it was said I would not move to fortnight about for the end of this year because I ought wait until the children are a little older; and
(g)That for overseas travel the father was concerned the mother might be triggered (my word to summarise the effect of the submissions) if travelling long haul with three young children.
It was appropriately accepted that the mother has family in Europe and his seven days limit to Term 1 2025 would mean she could not travel to Europe with the children to visit family in that time.
For the ICL it was submitted:
(a)It was appropriate to order longer time and no need to limit (as in no evidence to warrant limiting) the future time as the father proposed;
(b)Given the parties were agreed to half-half for the other holidays the same approach ought apply here;
(c)The block time meant the parties could travel without intruding on each other’s time;
(d)To limit travel to seven days meant the children would not be able to enjoy travel to family in various locations in the world, Europe, Africa, and there was no need to do so;
(e)If I ordered half-half time, then the father’s proposed Orders 27.1 and 27.2 would be unnecessary; and
(f)If I ordered the half-half time, I should add to the mother’s order a time for changeover at the midpoint, say, 10am.
For the mother it was submitted:
(a)This was a couple who nested post separation for a period of time;
(b)It had been two years of week about per Altobelli J and it was time to increase time;
(c)The week about and fortnight about was too limiting for both parents and thus the children;
(d)Both parents extensively travelled overseas in the past and both wish to do so in the future – the father deposed to this;
(e)Unlike the father, the mother has no family here – her family are all overseas making the seven day limit a prohibition on family reunions;
(f)Dr H recommended half holidays and did not say it ought be broken up;
(g)Two of the children were born overseas; and
(h)The mother has already missed many events, for example, the maternal grandmother’s 100th birthday in Europe.
There was no suggestion that the mother was a risk of flight and of no return; Line. Her roots are in Australia, as are the children’s lives. I also have no concerns that the mother might travel to a Hague country simply to travel to a non-Hague country. In any event, the orders as proposed stipulated travel will only be to Hague countries unless otherwise agreed in writing. The issue was not the fact of overseas travel, but the length of time away.
I turn to the submissions. I accept that four weeks for the children with the mother will be a period of time longer than they have had since separation. The children have had 11-12 nights with their mother in the past. Yet, the parties are agreed on an 8:6 arrangement, and more so sharing of Term 1, 2 and 3 holidays, one of which was three weeks long – thus, on the parties own consent orders, the mother is “good enough” to have the children for one and a half weeks, or some 10 or so nights, albeit I accept that will not occur until next year.
I accept week about is what Altobelli J ordered in 2021, but the mother’s difficulties were raw and palpable then. I well understand the history of the matter and the mother’s difficulties and why His Honour acted cautiously then.
However, it is time to look prospectively.
I accept the mother should have put on more evidence about her mental health, anger management and reviews, but I have the evidence of the single expert, Dr H who’s most recent conclusions has been extracted above. I also note the following from page 25 of Dr H’s recent report:
I have noted above that [Ms Jansen] presented as much more stable when I saw her on this occasion. She showed none of the features for which I had recommended an assessment to exclude ADHD, and I felt that that she probably manages anger significantly better now than she did when I saw her in 2020. I considered carefully whether this was largely due to her making a conscious effort to present herself in the best light. Undoubtedly that was an element, as is usually the case in my experience when a parent feels that I have formed an adverse view of them at my initial assessment which was going to be a major factor in the final outcome. However bearing in mind the high degree of disorganization and unregulated behaviour which I observed at my first assessment, and the stability of her composure when I saw her recently, I formed the view that there has been a genuine change. I probably saw her initially at a time when she was at her worst emotionally under the stress of a very recent separation, and living in a nesting arrangement which many parents find highly unsatisfactory and stressful. At this point however, I am of the view that her parenting falls well within an acceptable range. However in my view it is somewhat undermined by a distrust based on what I believe to be a misplaced belief that [Mr Kwan] can be characterised as coercively controlling.
(Updated Report of Dr H dated 1 September 2022, p.25).
On the basis of Dr H’s recommendations, and because of the parties’ other agreements as to term time and holiday time, I cannot find the mother poses some form of risk to the children such that the children’s December-January time with her ought be curtailed in the way the father proposed.
I accept the ICL’s submissions that it was time to move on and increase time. I do not accept that I ought wait until the children are a little older; X for a start is on the verge of his teen years.
I have however formed the view and decided that moving from 11-12 nights as the most the children have spent with their mother, to a four week block in a couple of months is a bridge too far. It would be a significant change for them; s 60CC(3)(d). However, given the parties other proposed consent orders, I will not order week about this year’s holiday time. It is too restrictive.
I will thus take a little of each proposal: order fortnight about for post-Term 4 for this year, then half holidays as a block each year thereafter. This being an even year, I will make the father’s proposed Order 5.3.3 for the end of Term 4 in 2022. Thereafter, I will adopt the mother’s Term 4 minute commencing end of Term 4 2023. I will also add 10am as the changeover as suggested by the ICL’s counsel as that is consistent with many other changeover times.
For the same reasons – Dr H’s opinions, the parties other agreements, the children’s connection to culture - I will not make the father’s proposed Orders 27.1 and 27.2. I do accept that travel can be stressful, but the children are not toddlers unable to self-protect. More so, should they be on a long haul flight there is the protection of the flight attendants and passengers. I also accept the mother is most likely to travel to see family in other regions of the world, who are another protective factor. It is not my view that the mother needs those protection, rather, I observe those matters as they ought give the father some comfort to ease his concerns.
I also find it important that the children be exposed to the lands of their cultural heritages, s 60CC(3)(g), which for the maternal side can only occur with travel to those lands. Reflective of that, this family was a travelling family when together. As the ICL submitted, the children have had the benefit of much, including travels.
The father may take some comfort from the protective factors I have identified above. However, to fit within the holiday time post-Term 4 that I will order, I will amend the mother’s travel order, so that any travel this year is limited to two weeks, and therefore I will start her Proposed Minute to commence from 2023.
Mother to pick Wednesday activities
The mother sought an order that:
During school terms when any child is not engaged in a winter sport after school on a Wednesday, the mother will choose an activity to occur on that Wednesday.
This was supported by the ICL and opposed by the father given the proposed consent order 22 (that each parent could do what they wanted for activities in their own times).
Before I turn to the submissions, the net effect of the term time orders proposed by the parties was that the children will alternate their Wednesdays between the mother and father.
The mother submitted that whilst the children have every Thursday with her, she wanted that for “down time”. It was also said that it was time the mother had some involvement in such decisions, which had otherwise been the province of the father. It was very much stressed that the mother wanted a say too. I was also told that Sport 3 is currently on a Wednesday.
The ICL submitted the mother ought be able to “direct a bit of traffic” (my summary) with respect to extra-curricular activities in circumstances where the father had (rightly or wrongly, but it does not matter) been the main, historical selector of these things. I did not get a sense that the ICL was wedded to the Wednesday though, rather, her submissions focused on the mother having some involvement in the selection of these activities for the children.
The father opposed this saying: the children already have lots of activities; the mother wanted the father to “live with” her unilateral choices, but that they have “down time” exclusively with her; they have equal shared parental responsibility; the proposed orders provide for activities; she can do whatever she wants on a Thursday, as the children will be with her then; and, just because Sport 3 is on a Wednesday now, does not mean it will be in the future.
Section 60CC(3)(c) rests on a basis that parents ought be involved in decision making for children. That is also a policy behind the presumption favouring equal shared parental responsibility to which these parties are agreed. It is also a policy behind equal time, and significant and substantial time that parents enjoy the fun weekends, but they also participate in the day-in-day out parenting, which would include, for example, getting children to and from school and to and from extra-curricular activities.
I agree, for the reasons given by the mother and ICL, that the mother should be able to make such decisions. However, if the best predictor of the future is the past, the mother’s ability to impose an activity on the father is a recipe for disaster in this matter. For that reason, I will not make the order proposed by the mother. I do so because it is least likely to lead to further proceedings (s 60CC(3)(l)). I will also not do so, because the “down time” ought not be exclusively hers. Getting children to and from school and activities is part of the philosophy behind significant and substantial time and equal time.
The mother is however perfectly entitled to make decisions about activities when the children are exclusively in her care. In that way, she gets to participate in these decision as she sought.
For the reasons given, I will make the orders that I do on the disputed issues because they are in the best interest of the children.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 23 September 2022
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