LOVAN & PAGE
[2015] FCCA 926
•23 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOVAN & PAGE | [2015] FCCA 926 |
| Catchwords: FAMILY LAW – Parenting dispute – high conflict case – what time the Father should spend with his son. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Lovan & Page [2014] FCCA 1740 MRR v GR [2010] HCA 4 |
| Applicant: | MS LOVAN |
| Respondent: | MR PAGE |
| File Number: | SYC 7376 of 2009 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 18 - 19 June 2014, 26 February 2015 |
| Date of Last Submission: | 27 April 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 23 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Johnson Horsley Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Anderson |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
The Mother have sole parental responsibility for the Child, X, born (omitted) 2008.
The Mother inform the Father, within 14 days, of any decision made by the Mother in exercise of parental responsibility.
The Mother and the Father are to each have responsibility for decisions concerning the day to day care, welfare and development of the Child whilst the Child is in that parent’s care.
The Child live with the Mother.
If the Father continues to work in a location remote from the Mother’s home, then Orders 5 to 8 apply.
The Father provide a copy of his work roster to the Mother by email forthwith and provide the Mother with a copy of any revised roster by email within 24 hours of receipt by the Father of any revised or amended work roster.
Subject to the Father’s compliance with the provisions of Order 6, the Child spend time with the Father:
(a)During New South Wales public school terms, for five consecutive nights in each three week period commencing at 3:00pm (or the conclusion of school) on the day of the Father’s return to the (omitted) and concluding at 9:00am (or the commencement of school) on the last day of the five night block;
(b)From the commencement of school term 4 in 2015, the Child’s time with his father will increase to six consecutive nights and from the commencement of school term 1 in 2016, the time will increase to seven consecutive nights, in each case as set out in 7(a) above.
(c)During the New South Wales Term 1, 2 and 3 public school holiday periods, and subject to the Father being personally available to care for the Child for one week commencing at 3:00pm on the day of the Father’s return to the (omitted) and concluding at 9:00am on the last day of the one week block;
(d)During December 2015 New South Wales Christmas public school holiday period and subject to the Father being personally available to care for the Child for eight consecutive nights commencing at 3:00pm on the day the Father returns to the (omitted) and concluding at 9:00am on the last day of the eight night block;
(e)Commencing from the December 2016 New South Wales public school Christmas holiday period, for one half of the school holiday period, subject to the Father being personally available to care for the Child, commencing at 3:00pm on the day the Father returns to the (omitted) and concluding at 9:00am on the last day of that block.
In addition to the time the Child spends with the Father pursuant to Order 7, when the Father is present in the (omitted), that the Child spend time with the Father:
(a)If the Child’s birthday does not fall on a day the child is spending time with the Father, on the Child’s birthday from 3:00pm to 6:00pm;
(b)If the Father’s birthday does not fall on a day that the Child is spending time with the Father, on the Father’s birthday from 3:00pm to 6:00pm;
(c)From 9:00am to 5:00pm on Father’s Day;
(d)From 4:00pm Christmas Eve until 4:00pm Christmas Day in even numbered years;
(e)From 4:00pm Christmas Day until 4:00pm Boxing Day in odd numbered years.
If the time the Child spends with the Father falls on any of the following occasions, such time be suspended unless otherwise agreed:
(a)On the Child’s birthday from 3:00pm to 6:00pm;
(b)On the Mother’s birthday, from 3:00pm to 6:00pm;
(c)On Mother’s Day, from 9:00am to 5:00pm;
(d)From 4:00pm Christmas Eve until 4:00pm Christmas Day in odd numbered years;
(e)From 4:00pm Christmas Day until 4:00pm Boxing Day in even numbered years.
If the Father is no longer employed in an area remote from the Mother’s home, subject to the Father providing the Mother with 14 days’ notice, that the Child spend time with the Father:
(a)In lieu of time set out in Order 7:
(i)On the first weekend after notice pursuant to this order, from after school on Thursday until before school on Monday; and
(ii)On the third weekend after notice pursuant to this order, from after school on Wednesday until before school on Monday; and
(iii)Alternating thereafter; and
(iv)Each Thursday in the off-week from after school until 8:00pm.
(b)At such times as are set out in Orders 7(c), (d), and (e) with the time to commence from the conclusion of the last day of school term;
(c)At such times as are set out in Order 8(a) to (e), and with time to be suspended in accordance with Order 9.
The Child communicate with the Father by telephone on two occasions in each week, between 6 and 7pm each Wednesday and 9 and 10am each Saturday, with the Father to telephone the Mother’s mobile telephone number.
The Child communicate with the Mother by telephone on two occasions during any time that the Child is spending time with the Father pursuant to Orders 6(a), (b) and (c) between 6 and 7pm on the 2nd and 4th day, with the Mother to telephone the Father’s mobile telephone number.
The Child communicate with the Mother by telephone during time the Child spends with the Father pursuant to Order 7 (d) and (e) between 6 and 7pm on the 2nd, 4th and 6th days of each week with the Mother to telephone the Father’s mobile telephone number.
Each parent facilitate the Child communicating with the other parent at any time he expresses a wish to do so and to facilitate such communication, the parent with the care of the Child shall send a text message to the other parent informing them of X’s wish and the other parent telephone X as soon as practicable thereafter.
The parents communicate matters pertaining to the care, welfare or development of the Child:
(a)By telephone in the case of emergency;
(b)For pressing but non-emergency issues, by short factual text message;
(c)For minor day to day issues, by email;
(d)For any other issues, by letter sent by ordinary pre-paid;
(e)For matters requiring a response, a response is to be provided in respect of communications pursuant to:
(i)Order 14(b), within 24 hours;
(ii)Order 14(c), within 5 days;
(iii)Order 14(d), within 14 days.
The parents will be courteous and civil towards each other and all other persons significant to the Child at all times but especially in the presence or within the hearing of the Child.
The parents are each to ensure that the other parents is kept informed of:
(a)any serious medical problems or illnesses suffered by the Child and/or any invasive medical procedure performed on the Child, with the other parent to be notified as soon as is reasonably practicable;
(b)any medical emergencies involving the Child, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the Child that needs to be taken during the time the Child is with the other parent with the other parent to be notified at the time of changeover;
(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)the mobile telephone contact number of the parent, with any changes to be advised within 24 hours;
(g)the email address for the parent, with any changes to be advised within 24 hours;
(h)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.
Wherever possible, in order to facilitate changeover the parties shall collect X from or return X to school. If changeover cannot occur at school, then at (omitted) Play Centre changeover and if that facility is closed, then immediately outside the said facility.
Each parent is restrained from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the Child and each parent must do all things reasonable necessary to remove the Child from the presence of any other person who does so.
Each parent is restrained from using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the Child’s care, welfare and development.
Each parent is restrained from making any proposal to alter the time the Child lives with or spends time with each of them pursuant to these Orders in the presence or hearing of the Child.
Each parent is restrained from discussing matters pertaining to parental responsibility in the presence or hearing of the Child and will use their best endeavours to remove the Child from the presence of any other person who does so.
Each parent is restrained from using abusive and/or aggressive language in any forms of communication set out in these Order (or any other form of communication that they use).
Each parent is restrained from involving the Child in their parental communication (including but not limited to asking the child to pass messages to the other parent).
Each parent is restrained from taking, consuming and/or being affected by any illicit substance while the Child is in their respective care or for 24 hours preceding such time.
The parents be restrained from physically chastising or disciplining the Child in any way.
The Father be restrained by injunction from:
(a)attending upon the Mother’s residential address;
(b)attending upon any of the maternal family members’ residential addresses;
(c)contacting any of the maternal family members by telephone;
(d)assaulting, threatening, intimidating, harassing, molesting or interfering with the Mother;
(e)making video or audio recordings of the Mother, including conversations between him and the Mother without her knowledge or written consent; or
(f)attending at the Child’s school or extra-curricular activities at times the Child is not in his care in accordance with these Orders, except for the purpose of attending parent teacher interviews or to purchase school uniforms for the Child and in this respect, the Father shall use his best endeavours to ensure this occurs at a time when the Mother is not also present.
Each parent facilitate the Child’s attendance at his usual educational, sporting, extra-curricular activities during any time the Child is in his or her respective care.
The Mother forward to the Father copies of all reports from X’s paediatrician and psychologist within 48 hours of such report becoming available.
The Father do all things to comply with all directions or recommendations for X’s wellbeing being referred to in the reports from X’s treating practitioner.
The Mother be granted leave to provide a copy of each of the Reports of the Family Consultant be released to X's paediatrician and psychologist.
Within 21 days of a request from either parent, each parent do all things necessary and sign all necessary documents to enable a passport to be issued or renewed for the Child.
The parties bear the cost equally for the issue of a passport for the Child.
The Mother retain possession of the passport issued for the Child, but is restrained from taking the Child overseas without first providing the Father with 42 days written notice of any proposed travel overseas.
Each party be restrained from taking the Child overseas without the express written consent of the other which consent shall not be unreasonably withheld.
If either parent refuses or fails to do anything he or she is required to do pursuant to these Orders in connection with the issue of a passport then the Registrar of the Court is hereby authorised pursuant to section 106A of the Family Law Act1975 to execute any such documents on behalf of the defaulting parent upon being satisfied (by affidavit in chambers) that a relevant failure or refusal has occurred.
These Orders constitute authority of the Mother for the Father to receive copies of school reports, newsletters, notices and school photograph order forms.
These Orders constitute authority of the Mother for the Father to each liaise with the Child’s treating medical practitioners and obtain information about any medical treatment and any other medical issues.
These Orders constitute the authority of the Mother for the Father to liaise directly with the Child’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the Child’s progress.
Should any further application for parenting Orders be initiated by either parent in relation to the Child and should Judge Altobelli be reasonably available and subject to any application that either parent might make in this regard, the matter should first be listed before Judge Altobelli.
IT IS NOTED that publication of this judgment under the pseudonym Lovan & Page is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 7376 of 2009
| MS LOVAN |
Applicant
And
| MR PAGE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why the Court has made orders in relation to X, who was born on (omitted) 2008 and who is now seven years old. The evidence indicates that X is a very resilient young boy. This is surprising. His parents had separated before he had turned one. Since then they have been engaged in almost constant and intractable conflict relating to X. Despite the fact that X’s parents have been engaged in this fierce battle about him and even though he has often been caught in the metaphorical crossfire of their conflict, he still seems to be doing well. This case is about how much time he should spend with his father and under what conditions.
Background
X’s mother is the Applicant in this case. She is 48 years old, is a (occupation omitted) and lives in (omitted). X’s father is the Respondent, he is 43 years old and describes himself as a (occupation omitted) who, whilst living in the (omitted) region, works in Western Australia on a fly in, fly out basis. The Father works, in general terms, 11 days on then 10 days off, though some of his free time is taken up with travel to and from work.
At the moment and pursuant to interim orders that the Court made on 3 July 2014, X lives with his mother and spends time with his father in a three weekly cycle for four consecutive nights commencing at 3:00pm on the day of the Father’s return to the (omitted) and concluding at 9:00am four days later. These Interim Orders were made by the Court after two days of hearing evidence and when it became apparent that the matter could not be concluded and would become part-heard. The Orders included an order for sole parental responsibility to the Mother. The reasons for judgment were published as Lovan & Page [2014] FCCA 1740.
By way of background, X’s parents married in (omitted) 2007, relocated to (omitted) that year but then returned to (omitted). The parents separated on 21 February 2009. Proceedings were initiated by the Mother that year and it is apparent from the history of this matter that almost immediately after separation, the parents commenced their dispute about what time X should be spending with his father. During the litigation a number of interim orders were entered into that provided for the Father to spend time with X on a gradually increasing basis. There was also a three day hearing before Federal Magistrate Walker (as she then was) over spouse maintenance.
A total of three Family Reports have been prepared during this litigation. The first Family Report was released in December 2010. In short, it recommended shared parental responsibility, that X live with his mother, and spend time with his father for two consecutive nights from early 2011, ideally whilst still attending preschool.
The second Family Report was released on 13 March 2013. Again it recommended shared parental responsibility, that X live with his mother and spend time with his father for four nights every three weeks, increasing to five nights after he starts school. In addition there were recommendations about school holidays.
The third Family Report was released on 1 December 2014. It recommended sole parental responsibility to the Mother, and that X spend time with his father for four nights in a three weekly cycle, as well as making recommendations about school holidays, and how X’s time should progress.
More will be said about the Family Reports in due course.
The saga of the parents’ litigation relating to X contains many quite serious allegations that each makes against the other in relation to what they have done or failed to do and their weaknesses as a parent. For example, the Mother makes allegations against the Father about drug and alcohol use, his aggression, controlling behaviour, insensitivity to the needs of X, failure to adequately provide financially, to mention only a few of these allegations. The Father makes the same, or similar, allegations against the Mother. It seems common ground that X was often exposed to the unseemly exchanges that took place between his parents and to the parental conflict generally.
Litigation rarely presents parents in their best light. Regrettably, this litigation has highlighted the deficiencies of both parents in the starkest term. The litigation history is also unfortunate in that for circumstances beyond the Court’s control, the case could not be heard in a timely fashion and then, when it was heard, could not be concluded in the time allocated. The Final Hearing commenced on 18 June 2014, continued on 19 June 2014 and was then stood over part-heard to 26 February 2014 when the evidence was completed.
The Mother was at all times represented by a solicitor and Counsel. The Father represented himself. He is clearly an intelligent and articulate person. X was represented by an Independent Children’s Lawyer, who instructed Counsel at the hearing.
By the time of closing written submissions dated 27 April 2015, the Mother’s proposal was that she have sole parental responsibility. She also sought an order that X live with her and spend time with his father in a three weekly cycle for three consecutive nights and then in school holidays. The final orders proposed by her are set out in the first schedule to these reasons.
The Father’s proposal by the time of his closing submissions dated 16 April 2015 was for equal shared parental responsibility, that X spend time with him on a gradually increasing basis starting off with five but building up to seven consecutive nights in a three weekly cycle if he works interstate, but if he were to be employed locally, then on a shared care basis week-about. The final orders proposed by the Father are also reproduced in the first schedule to these reasons.
The Independent Children’s Lawyer’s proposal is set out in the submissions dated 12 March and 24 April 2015. The Independent Children’s Lawyer proposes sole parental responsibility to the Mother, subject to an obligation to inform about decisions, that X lives with his mother, and that, if the Father continued to work in a remote location, X spend time with him for five consecutive nights in each three week period, but, if the Father worked locally, each alternate weekend from after school on Friday to the commencement of school on Monday, as well as each alternate Thursday from after school until the commencement of school on Friday. The orders proposed by the Independent Children’s Lawyer are also reproduced in the first schedule to these reasons.
The evidence
The Mother relied on the following documents:
·Affidavit of Ms Lovan, sworn 12 August 2013; and
·Affidavit of Ms Lovan, sworn 27 May 2014.
The Mother was extensively cross-examined.
The Father relied on the following documents:
·Affidavit of Mr Page, affirmed 12 June 2010;
·Affidavit of Mr Page, affirmed 17 January 2012;
·Affidavit of Mr Page affirmed 12 March 2013; and
·Affidavit of Mr Page, affirmed 12 June 2014.
The Father was likewise extensively cross-examined.
As mentioned above three Family Reports were prepared by Ms K, the Family Consultant. She was also cross-examined.
A considerable volume of documents was tendered in evidence.
The Court was greatly assisted by the extensive written submissions provided by each party.
Outline of Reasons for Judgment
After setting out the applicable law, the evidence of the Family Consultant will be considered. This was the only independent and expert evidence. After that, the evidence of the parties will be considered by reference to the relevant statutory provisions. A discussion will then ensue about best interests orders.
The applicable law
The applicable legislation is the Family Law Act 1975 (hereafter referred to as ‘the Act’). As these proceedings were commenced prior to the amendments inserted by No 189 of 2011, this discussion will make reference to the relevant provisions that were in force prior to the 2011 amendments to the Act.
In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Family Reports and evidence of the Family Consultant
Ms K’s first Report is dated 17 December 2010 and was released 21 December 2010. At paragraph 11 she found the Mother to be “a parent who actively supports X’s relationship with his father.” This is an observation that is repeated in each of the subsequent Reports. Despite the Father’s contention to the contrary, indeed his resolute conviction that the Mother was actively seeking to undermine his relationship with X, all of the evidence before the Court is consistent with Ms K’s observation. The Mother was closely cross-examined firstly by Counsel for the Independent Children’s Lawyer and then by the Father. Despite the searching nature of her cross-examination, nothing she said would point to a conclusion contrary to the observation of the Family Consultant.
Also at paragraph 11 of the first Report, Ms K recorded the Mothers’ admission as to there “being significant communication difficulties between herself and Mr Page”. At that time, in 2010, she felt that their communication seems to have improved. Regrettably, the history of the matter indicates that the communication of the parents has not, in any substantive and consistent sense, improved. Apart from the occasional brief episode of mutual clarity of thought and communication pertaining to X, all of the evidence before the Court strongly suggests that their communication is almost invariably dysfunctional.
At paragraph 12 of the first Report the Family Consultant recorded the Mother’s feeling that:
Both during their marriage and since separation she has, on occasions, experienced and continues to experience Mr Page as verbally abusive and physically threatening towards her.
This is a theme that is repeated in the two subsequent Reports and which is entirely consistent with all of the evidence before the Court. As will be seen below, her experience of the Father is borne out by the facts. It could not be said, however, that the abuse to which she refers constitutes a risk of harm to X. That is not how her case was presented. Fortunately for X, there is no risk of harm to him arising out of verbal or physical abuse.
Also at paragraph 12, Ms K recorded the acknowledgement by the Mother that, “X enjoys his time with his father.” This is consistent in both later Reports and in the evidence. Indeed, what is clearly not an issue in this case is the fact that the Father loves his son and that X greatly enjoys the time he has with the Father.
At paragraph 13 the Family Consultant recorded her observation of the Father as “a committed parent who wishes to have a significant and ongoing role in X’s life.” This is a theme that is repeated in the subsequent Reports and is clearly obvious from all the evidence before the Court.
In paragraph 14, Ms K records the Father’s acknowledgement that, “There was mutual abuse between him and Ms Lovan, during their marriage.” He denied, however, any ongoing abuse. As it turns out, the totality of the evidence suggests the relationship was tumultuous at times. The Father’s perception of the abuse that occurred may not be based in reality.
Consistent with the two later Reports, the Family Consultant observed X to be “a relaxed and contented child who moves easily between his parents.” She observed that X exhibited no signs of distress and remained settled throughout the day as he moved between his parents.
The observations of X’s interaction with his father were unequivocally positive, not just in the first Report but in all subsequent reports. For example, at paragraph 21 she observed the Father to be “…attuned to X’s needs, supportive of his play, and having the capacity to enter into X’s world.”
In her evaluation, Ms K expressed the opinion that X had a secure attachment to each of his parents, both of whom had an insightful understanding of and attunement to, X’s needs. Whilst acknowledging that the parents’ communication was poor and problematic, at paragraph 24 the Family Consultant expressed optimism about an improvement in this regard. Whilst her observations about X’s secure attachment with each parent is borne out in the subsequent reports and indeed, in all the evidence before the Court, the later Reports do raise issues about the precise nature and extent of each parent’s insight and understanding of X’s needs, given their inability to disengage from intractable conflict about him.
Paragraph 26 is a prescient observation of the Family Consultant:
It is assessed that each parent continues to struggle to balance their own individual needs with that of being a parent and this seems to the be primary difficulty they are experiencing in moving from the current parenting arrangement to one in which X will have block, and thus, probably, more settled periods with his father.
The theme of the parents’ inability to separate, at times, their own individual needs from X’s needs, continued to be a significant theme in this case.
In the first Report, the Family Consultant recommended equal shared parental responsibility, that X live with his mother, but spend time with his father two nights each fortnight. By mid-March 2011, she felt that X could spend up to four consecutive nights with his father on up to four occasions each year.
The second Report is dated 11 March 2013 and was released 13 March. Of course, X was older by this time. The Father had experienced changes in his employment such that, from September 2012, he began what is now his present employment in Western Australia on a three-week roster. At the time of the report interviews, X was spending three nights with his father during the first ‘off’ week and four nights during the second ‘off’ week.
At the time, the Father was proposing five consecutive nights with X during each three-week period.
What is interesting about the Family Consultant’s observations about each parent is, firstly, the consistency of her observation as recorded in the first Report but, secondly, the introduction of a sense of frustration on the part of each parent as the dispute wore on. At paragraph 19 she observed that each parent demonstrated “a propensity to focus on ongoing financial issues” as well as relatively minor aspects of the current parenting arrangements, such as on which day X’s time with his father should commence and conclude.
Interestingly, and perhaps surprisingly, at paragraph 20 the Family Consultant observed that, notwithstanding:
…the parents’ negative attitudes towards each other, their communication difficulties and their lack of trust of each other, during their joint interview they demonstrated that, at least in the presence of a third person, they can effectively communicate with each other in a respectful manner.
A further instance of this was observed in the third Report, as will be seen. Regrettably, what appears absent from the totality of the evidence is the capacity of the parents to effectively communicate when not in the presence of a third person.
At paragraph 22 she records that neither parent raised any concerns about X’s care in the other parent’s home and that both parents acknowledge that X loves each of them.
In paragraph 28 of the Family Report, Ms K acknowledges that despite what the Court will describe as her optimism in the 2010 Report about the likelihood of the parents’ communication improving, history did not bear that out. Indeed, in paragraph 28 she was pessimistic about the parents’ ability to improve their communication, a matter certainly borne out by the evidence.
In order to deal with the Mother’s continued experience of the Father as being aggressive and intimidating, Ms K recommended that all changeovers which do not occur at school or preschool ought to occur at Catholic Care Contact Centre.
Again, she conceptualised the dispute between the parents as to days and times as being, in effect, “based more on their own individual needs… then on what is in X’s best interests.”
In the second Report Ms K recommended that the current arrangement of four nights each three weeks evolve to five nights each three weeks once X commenced school. She recommended that the parents consider seeking professional assistance to help them develop more appropriate communication strategies.
Ms K’s third and final Report is dated 28 November 2014 and was released to the parties on 1 December. She recorded an entrenchment in the Mother’s position such that she proposed a reduction in X’s time with his father to three nights in each three-weekly cycle and that she be released of the obligation to consult the Father in the exercise of sole parental responsibility. The Father was recorded, however, as now seeking seven consecutive nights each three weeks as well as half the school holidays.
Whilst the Mother was observed at paragraph 11 to continue to be supportive of X’s relationship with his father and indeed, with his extended paternal family, she was also recorded to have become “condescending and somewhat dismissive” of what was otherwise very clear positive experiences for X with his father and the paternal family.
Ms K refers to the behavioural problems that the Mother reported pertaining to X at school and her belief that this would improve if the Father’s time were reduced. At paragraph 13 Ms K records the Mother’s account of more recent experiences of the Father being harassing of her, and their inability to communicate. Paragraph 13 states in this regard:
Ms Lovan said that she continues to experience Mr Page as harassing of her. She asserts that he does not respond to her requests in a timely manner and, when he does respond, his responses are usually negative. There was an issue of X being enrolled in marital arts and, consistent with the Orders of 3 July 2014, Ms Lovan asserts that she provided Mr Page with appropriate information. She also asked him to meet half the costs of the activity. She said that Mr Page’s response was to find another venue (at X’s school). Ms Lovan said that the time when this latter class was held was “too late” in the evening for X. Eventually, Ms Lovan, without further consultation, enrolled X in a judo class, although it was not at the venue which she had originally proposed. It seems, however, that, without any further consultation, Mr Page proceeded to enrol X at the venue first suggested by Ms Lovan (Mr Page confirmed this). Ms Lovan said that, as she experiences Mr Page as continually harassing of her and unable to compromise, she seeks that she not be required to consult him about any aspect of X’s life.
In relation to the Father, the Family Consultant recorded that when given the opportunity, the Father was singularly unable to identify positive aspects of the Mother’s parenting. Indeed, she observed at paragraph 18, “His negative view of her now seems to be entrenched.”
The third Family Report found X to continue to present “as a relaxed and settled child” but, disturbingly, the Family Consultant observed that his affect and tone of voice at times indicated that he was also sad. X was clearly aware that his parents were not friends. Nonetheless, he was happy to be in the care of both of his parents and misses both of them.
The following interesting observation is recorded at paragraph 23 of the Report:
No joint interview of the parents occurred. There were no formal observations as both parents indicated that X loved them both and neither raised any concerns about his relationship with the other parent. When the writer accompanied Mr Page to the children’s section of the waiting area so that he could say good-bye to X, who was returning to his mother’s care that day, Mr Page sat on the floor next to where X and his mother were sitting playing Connect. X immediately went to his father. The parents were encouraged to remain sitting on the floor where X had moved to his father’s lap. The writer then suggested to X that he might tell his parents what he would “like them to be”. X approached the writer and whispered “friends” before approaching each of his parents and whispering what the writer understood to be the same word to each of them. Interestingly, the parents appeared relaxed as did X. The parents then had a discussion about some clothes which Mr Page had overlooked returning with X. Mr Page raised the issue of X attending martial arts on the weeks when he is working. The parents had a brief discussion about whether or not Ms Lovan or her mother might be able to take X to this activity. These interactions occurred in the presence of the paternal grandparents, who had accompanied Mr Page in case X needed to be cared for during the interviews. It was noted that Ms Lovan and the paternal grandparents interacted in an appropriate manner. Despite the negative view each parent holds about the other, their interaction, in the presence of X and the writer, was respectful and provided no indication of the disregard each articulated about the other during their individual interviews.
The dissonance between this observed cooperation and communication between the parents in the presence of a third person, and their inability to do the same thing when on their own is striking.
In her evaluation Ms K was clearly concerned that, notwithstanding the previous two reports, X was starting to experience some adverse emotional reactions as a result of his exposure to an awareness of the negative relationship between his parents.
Ms K’s evaluation at paragraphs 25-29 are important and needs to be reproduced in full:
X is assessed as having a close and appropriate relationship with each of his parents. At this stage of his development, he seems to have not suffered any significant consequences as a result of his parents’ conflictual and negative relationship. However, the sadness he exhibited during his interview and the flat tone of his voice clearly indicates that he is experiencing some adverse emotional reactions as a result of his exposure to, and awareness of, the negative relationship between his parents. His parents’ assessment of him as a bright child is supported by his class teacher. Academic achievement can often be a protective factor and provide a child with a greater degree of resilience than would be the case with other children. How much X’s problematic behaviour at school prior to term four relates to a normal adjustment process and how much might be a reflection of some other difficulty is not known. However, as Ms Lovan and also his class teacher report, X’s behaviour has improved.
It is evident that X has a close relationship with his father. It could be hypothesised that some of the sadness and comments he made during his interview reflects a yearning for his father to be in his life on a more regular basis than is possible at this stage. Ms Lovan’s proposal to reduce X’s time with his father is not appropriate either in terms of X’s emotional needs or in terms of his alleged problematic behaviour at school. Ms Lovan’s proposal to reduce X’s time with his father is at odds with her statements that his behaviour at school has now improved (with the school supporting Ms Lovan’s view). There is a dissonance between her comments about the positive experiences which Mr Page is able to provide for X and her wish to reduce his time with his father.
X’s parents have, unfortunately, been involved in litigation since December 2009. Ms Lovan seems to have recently started to develop more appropriate strategies for dealing with Mr Page and, despite the grudging and condescending manner in which she identified the positive aspects for X of spending time with his father and the activities they enjoy together, she was at least able to do so. In doing so she not just identified these aspects but agreed that X benefits from the activities. It is unfortunate and concerning that Mr Page was unable to identify any positive aspect of Ms Lovan’s parenting or anything positive she brings to X’s life.
Unless Mr Page is able to change his seemingly entrenched negative view of Ms Lovan in time it is likely that X will become much more consciously aware than he is now of his father’s negative view of, and attitude to, his mother. Such awareness, as he gets older, is likely to result in X experiencing an inability to have simultaneously positive relationships with each parent. One way in which young people cope with these feelings is to cut off their relationship with one parent. This is neither alienation nor realistic estrangement, rather it is a way in which a young person is able to protect himself emotionally from what is essentially a tug-of-war about his loyalty to each parent. It would not be in X’s best interests for this to occur. He has had, and continues to have, a positive relationship with each of his parents. Despite the conflict his parents have either found ways in which to protect X from it or, alternatively, X has incorporated it into his normal experience of his parents. X has always maintained that his parents are not friends (see paragraph 24 of the 2013 Report). It is concerning that when discussing whether or not his parents were friends X’s affect and tone of voice changed significantly, from being enthusiastic to matter of fact to sadness. He also expressed sadness about his father’s absence from his life. Such feelings are likely to be somewhat ameliorated by X’s time with his father increasing. It will also assist X if he feels able to telephone his father when he wishes to do so. For X to feel able to express such a wish Ms Lovan will need to provide active support and Mr Page will need to develop a more insightful understanding of X’s needs in terms of his developmental stage. X is at an age when imparting brief, but from X’s perspective, important day to day information about his life is likely to be sufficient for X to experience a more significant emotional connection with his father, when he is in Western Australia. As X matures and masters technology email (or a similar type of communication) will serve a similar purpose.
The interactions between Ms Lovan and Mr Page in the presence of X, in the waiting area were interesting. They made eye contact, were respectful and each raised an issue which could have been contentious. While neither made any structured proposal (about X attending martial arts and Mr Page returning some school clothes) there was no animosity detected. It might be that, with the passage of time, an end to litigation, and as X continues to be shielded from the more negative view of each parent about the other, the parents could develop more appropriate strategies to communicate, and perhaps even interact with each other so that, eventually, both might be able to be present at those events in which X is involved and which he would, no doubt, like both his parents to attend. There is no doubt that both parents love X and take pride in, and are supportive of his advanced cognitive development. It is important, however, that they understand the negative effect their behaviour could have on his emotional development. If X’s emotional development is adversely affected by either of his parent’s behaviour then this would be likely to also result in negative consequences for his cognitive, socio-emotional and behavioural development.
Finally, Ms K recommended that the Mother continue to have sole parental responsibility for X, provided she undertake to advise the Father within seven days of any decision made. X should continue to live with his mother, and to spend four consecutive nights with his father in a three-week cycle moving to seven nights from the beginning of term 2 in 2015. She also made recommendations about school holidays.
Ms K was extensively cross-examined, after the evidence of both parents had been completed and on the final day of the hearing, 26 February 2015. Before discussing her evidence, it is necessary to refer to two bundles of documents that were tendered in evidence in the Mother’s case, and in respect of which the Family Consultant was asked to express an opinion.
Exhibit A12 is the first of the bundle of documents. It consists of letters from the Mother’s solicitor to the Father dated 6 August 2014 and 23 February 2015, together with the Father’s reply of 24 February 2015. The second bundle is exhibit A13, which consists of extracts of the SMS communication between the Mother and the Father during the period of the adjournment between day 2 and the final day of the hearing.
The weight to be given to both these exhibits needs to be discussed. On the last day of the hearing, only the Father gave evidence as his cross-examination needed to be completed. Specific matters within the documents were put to him in cross-examination, and he then had the opportunity to answer the specific question, and then more fulsomely address the issues raised in re-examination. However, the Father was not able to deal with the issues raised in these two exhibits by way of evidence-in-chief, nor was he able to cross-examine the Mother on these matters because she did not seek leave to adduce further evidence about them. The manner in which this evidence was adduced to the Court thus leaves this evidence with inherent weight limitations. Nonetheless, in cross-examination the Father did provide evidence which could be described, in broad terms, as admissions about some of the matters raised in the documents, but even these admissions are devoid of the broader context that would have been provided if evidence had been led in the proper form about the issues raised in the documents. The text message exchange also suffers from the same problem. But perhaps the greatest concern is that the Court cannot be satisfied, other than the Mother’s own reassurance through her Counsel, that the document purporting to represent the text message exchange is a complete record of the text message exchanges. From the Father’s perspective, he submits that they are not a complete record. Nonetheless, to the extent that in cross-examination the Father made certain concessions about the communications referred to, but subject to the caveat previously raised about the absence of context, some limited weight can be given to this evidence.
In the two solicitor’s letters to the Father, on behalf of the Mother, they allege that the Father has not complied with the Interim Orders I made on 3 July 2014 in a number of ways. The Father made limited admissions, for example, that he did exit the motor vehicle he was in at changeover, but in each case he provided an explanation which seemed plausible and which if accepted would probably be a reasonable excuse so far as the contravention is concerned. These are not contravention proceedings, of course, and the significance of the alleged contraventions of the Orders is not so much the question of enforcement, or the Father’s willingness to comply with Orders, but rather his attitude which is reflected in what the Mother would contend was his indifference about Orders, and a failure to understand how this indifference has an impact on the Mother, and thus potentially on X.
It should be stated clearly that no findings can be made that the Father failed to comply with the Orders in question, as asserted in these letters, other than the limited admissions he made which would, in the context he provided and subject to cross-examination, probably amount to reasonable excuse.
The real benefit to the Court of exhibits A12 and A13 is the continued insight that it provides into the parents’ relationship with each other and their tortured and dysfunctional communication. Thus, for example, the Mother’s solicitor’s letters indicate her concern about the need for the Father to punctiliously comply with all Court Orders such as not exiting his motor vehicle during changeovers, not attending X’s school, not contacting members of the maternal family, consulting the Mother about enrolling X in martial arts, and allegedly speaking with X in relation to inappropriate matters.
The Father’s reply dated 24 February 2015 responds to most of these matters not just by way of denials but in a very accusatory tone. He does, however, attempt to provide the context and an explanation for his actions, some of which seem quite reasonable on their face. What becomes apparent from the Father’s letter is that the Mother’s concerns about, for example, the Father speaking to X about inappropriate matters and failing to consult with her in relation to decisions about X, are equally matched by the Father’s concerns about what the Mother is saying to X and her failure to consult with him.
Indeed, an overall impression of the evidence suggests that there seems to be some substance to the Father’s concerns. In a case such as the present one where there are no issues of credit, that is as a general proposition there is no reason not to believe the evidence adduced by the parents, it is more likely than not that what they each report X said to them is an accurate record of this. On this basis, therefore, it seems that both the parents have engaged in inappropriate conversations with X, or in his presence, which would reasonably lead X to think that both parents does not think very highly of the other.
Exhibits A12 and A13 is more than ample evidence to demonstrate the dysfunctional communication between the parents. Bearing in mind it is the Mother who adduced the evidence of the text conversations and submitted that the records were accurate and complete, the Court must wonder why the Mother would raise with the Father that X needs “an urgent appointment … to see a paediatrician this week given his behaviour at school…” (text message from Mother to Father 19 August 2014, 4.19 pm) but not be prepared to tell the Father the name of the paediatrician, or, for that matter, the subsequent counsellors to whom she later refers? Moreover, when, as she contends, “I have paid some exorbitant medical fees for X recently that were not all covered by Medicare” (text message mother to father 2 September 2014 at 2.51 pm) why was it unreasonable for the Father to ask what were those fees for and who were the practitioners that received these fees? With great respect to the Mother, she sought to rely on the documents that she tendered to establish the Father’s non-compliance with my Orders of 3 July 2014, perhaps without due consideration as to the extent which those documents demonstrate her inability to comply with the orders I made on 3 July, and specifically Order 2 that regulated how she would exercise the sole parental responsibility she was given.
None of this justifies the manner in which the Father responded to the Mother’s communication. There is an abrupt, highhanded, indignant and accusatory tone in his text messages back to her. For example, the Mother was perfectly entitled to feel, as she expressed in a message to the Father, that she found some of his communication “derogatory, inflammatory and absolute false.” (3 September 2014, 12.28 pm).
Exhibit A13 clearly demonstrates the inability of the parents to communicate about and negotiate on X’s attendance at martial arts classes. Other than agreeing that X’s paediatrician and his school recommended that he would benefit from these classes, the parents could not even decide which martial arts school he would attend. Neither would budge an inch in this regard. As a result, X attends two martial arts schools, one when with his mother and another one when with his father. She pays for one, he pays for the other. When the Father suggested to the Mother that, perhaps with the maternal grandmother’s assistance, X could continue to attend the Father’s chosen martial arts school the Mother did not respond, a tacit indication of her negative response, unsurprising in the circumstances.
Exhibit A13 is a document that metaphorically oozes the lack of trust that each parent has for the other, for example, about telephone calls between X and his father and who is responsible for the termination of these calls. The Father trenchantly believes that the Mother is interfering with his calls. The Mother trenchantly asserts that it is X who is terminating his calls. The Father does not seem able to conceive of this as a possibility and if the Mother was seeking to encourage X, there is no evidence before the Court of this either happening, or of being successful.
Much was made in evidence of a paragraph on the third/last page of the Father’s letter dated 24 February 2015 which states as follows:
X recently asked why I do not work more days in the canteen whilst I am in (omitted). I told him that I was no longer allowed to work in the canteen on days when I wasn’t dropping him off and picking him up. He asked why this was so. I told him your client had asked someone to stop me doing canteen on those days so I can only do it on Mondays once every three weeks.
The Father was cross-examined about this. He indicated that he had given careful thought to how to respond to X’s question and indeed, he gave the impression of being quite proud of the response that he had made. In cross-examination he could not accept that there was anything inappropriate about it.
The order in question is Order 20(f) of the Interim Orders, which restrains the Father from attending at X’s school or extracurricular activities at times X is not in his care in accordance with these Orders. Paragraphs 8 and 9 of my reasons for judgment delivered on 3 July 2014 explain why the Order in question was made. Further explanation is given in paragraph 12. It is apparent from the Father’s written submissions to the Court that he neither understands nor agrees with the Orders the Court made. More will be said about this incident in due course.
The Father’s explanation to X clearly seeks to shift any responsibility for the need for the injunction away from himself and onto the Mother. He clearly could see at that time, no basis for making the Order in question that was in some way attributable to his own actions.
Zooming out from the minutiae of the evidence in exhibits A12 and A13, irrespective of the purpose of the tender, what these documents actually demonstrate is the continued dysfunction in the relationship between these parents and their singular inability to communicate on any constructive basis. Neither parent escapes unscathed from the critical scrutiny of exhibits A12 and A13 and indeed, perhaps it was fortunate for the Mother that she did not expose herself to cross-examination on these documents.
At paragraph 8 of my reasons for judgment of 3 July 2014, I said “It is clear that both parents lack insight into their own actions and how those actions are having an adverse effect on X.”
Subsequent events, as manifested by these two exhibits, strongly suggest that despite the critical scrutiny of the ongoing litigation, nothing has changed.
It is with this lengthy background and discussion of the evidence in question, that the Family Consultant was cross-examined about the recommendations contained in her most recent Report.
Ms K was cross-examined by Counsel for the Independent Children's Lawyer, Counsel for the Mother and by the Father. She strove to be even-handed and balanced in her comments about both parents. She achieved this. The Court felt that a substantial part of her evidence, given in response to questions of course, was designed not for the Court’s ears but for the parents’ ears. Alas, her words of wisdom probably fell on deaf ears as is evidenced by the positional proposals advanced by the parents in closing submissions.
Ms K was unsurprised about the communication evidenced in exhibits A12 and A13 and suggested indeed, that the communication was consistent with the past and with each parent’s perception and experience of the other’s communication. It reinforced her view that the parents have no ability to manage even small issues and have very different perspectives on important things such as what, precisely, is contributing to X’s behavioural problems. In her opinion, given that X lives most of the time with his mother, the evidence continues to suggest an order for sole parental responsibility, a view she reiterated when cross-examined by Counsel by the Mother and certainly confirmed with the Father.
Ms K was not able to express an expert opinion that indicated that the behavioural problems X was experiencing and acknowledged by both parents was attributable to the time he was spending with his father. Her view was that the evidence did not allow such a conclusion to be drawn. The Court notes, however, that this evidence does not preclude the Court from finding or inferring that X’s behavioural problems was in some way either caused (in part or in whole) or exacerbated, but his parent’s intractable conflict.
Ms K did reconsider, however, her recommendation about X spending extra time with his father and indeed, progressing to seven days during each three week period. She was willing to concede, for example, that the progression to seven days could (and inferentially should) be staggered over a longer period. Indeed, she suggested the possibility of progressing to five days in term 2, 6 days in term 3 and 7 days in term 4. Indeed, she even conceded that from X’s perspective, there was probably not much difference between a final result of spending 6 days each three weeks with his father and 7 days.
Ms K conceded in cross-examination that she may have been “seduced by these parents” as a result of the very positive observations that she made about their interaction together with X and that this may have led her to become “optimistic” about their prospects after the conclusion of this litigation. Clearly she was impressed by the resilience of young X who seems to be navigating the minefield in the metaphorical “no man’s land” that separates his parents with consummate skill (my metaphor, not Ms K’s words), though not necessarily without psychological cost. Whilst she was very clear in her warnings both to the Court and to the parents of the potential adverse impact on X of the parents’ failure to change their behaviour, it was apparent even to her that what evidence there was about events over the last six months indicated the need for more cautious optimism, rather than less optimism. She conceded, for example, that unless the parents change, and having regard to the litigation history of this case, it would probably return to Court in future. She emphasised the importance of ensuring that both parents are not at school at the same time. She thought that Orders needed to be clear and prescriptive.
Despite a sustained, methodical challenge to her recommendation about seven nights in cross-examination by Counsel for the Mother, apart from the concession that is recorded above, Ms K held her ground. Whilst accepting the general principle that spending more time created more opportunities for the sorts of problems that were so vividly demonstrated via exhibits A12 and A13, she emphasised the importance to X of the relationship with his father and his resilience notwithstanding past problems.
In cross-examination Ms K agreed there were a number of disconcerting factors present in this case. For example, that most of X’s life had involved litigation about him. There had been three Family Reports prepared. There has been almost constant judicial oversight of these parents when they are before the Court. Re-partnering does not appear to have taken the heat out of the conflict between the parents. The high point of the parents’ ability to communicate was quite inadequate. Also, that increasing the Father’s time with X might be interpreted by the Father as a “reward” for his poor behaviour. It was suggested to her that, in view of these factors, an Order would need to be made that protected the Mother, as far as possible, from the entrenched hostility that was emanating from the Father. Whilst Ms K agreed in principle with what was suggested, she observed that the Mother had demonstrated quite considerable resilience and had, indeed, continued to support X’s relationship with his father. The need to protect her, Ms K opined, needed to be balanced by the need to avoid making Orders that would undermine X’s relationship with both of his parents.
It was suggested to Ms K that the level of contact she was suggesting, that is, seven nights each three weeks, was the level of contact that one would expect for parents who show certain characteristics, which are not present in this case, that is, the ability to communicate. Again, Ms K agreed in principle, but emphasised that each case was different and it depended on the child, the parents, and their circumstances. She re-emphasised that the seven days could be introduced over a period of time. Again, Ms K emphasised the fact that notwithstanding the parental relationship, X appeared to be thriving. She believed that the communication issues could be managed.
By the end of the Family Consultant’s cross-examination, the Court’s view was that she maintained the appropriateness of her recommendations as to seven nights each three weeks with the Father but had conceded that the dysfunctional parental relationship in this case might indicate a more measured introduction of the additional time. She also conceded that the difference between six days and seven days in each three week period was not significant. She conceded that she was, perhaps, being optimistic in relation to the parents and that she may have been very much influenced by what she observed, which was, in many respects, quite inconsistent with the overall evidence before the Court. Indeed, the only evidence of a functional parental relationship is during the Family Report interviews and observation. It must be recognised that this is a highly artificial environment, at least for the parents who, as adults, have a capacity to adapt their behaviour to the circumstances. The same does not necessarily apply as regards X, whose observed behaviour in the presence of his parents seems to be entirely consistent with the rest of the evidence that speaks of his resilience and adaptability.
It is possible that the Family Consultant’s optimism is misplaced. It is also possible that she has not fully appreciated the level of dysfunction in the parental relationship and the risk that this creates for X. Nonetheless, the Family Consultant’s evidence is persuasive and nothing arises from cross-examination that detracts from her evidence, other than as noted above.
Meaningful relationship
Despite the level of parental acrimony in this case, it is common ground that X has a meaningful relationship with both his parents. None of the proposals before the Court will alter this.
Protecting the child from harm
The Mother’s case, at its highest, is that there is a need to protect X from the psychological harm of being exposed to abuse and family violence. As this case is governed by the version of the Act that existed before the family violence amendments inserted by No 189 of 2011, she does not have the benefit of the extended definition that currently exists of family violence. This case can be determined, however, without reliance on definitions. Whether or not the Father’s conduct amounts to abuse, neglect or family violence for the purposes of s.60CC(2)(b), the real issue is the impact on X of any such behaviour, regardless of whether he is directly exposed to it, or indirectly exposed to it because his mother is subjected to it. Based on all the evidence before it, the Court treats this case as being a high conflict case rather than a violence and abuse case. It is unnecessary to be drawn into factual issues of who did what and when, and whether these actions amount to violence and abuse as defined. The real focus should be on how X and his parents experienced their various interactions with each other. These matters are more than adequately covered by the additional considerations set out in s.60CC(3). In any event, the Mother’s proposal advanced to the Court is quite inconsistent with any belief by her of a need to protect X from physical or psychological harm.
The child’s views
This is not a determinative consideration given X’s age. He appears to be a happy, well-adjusted and thankfully resilient child who loves both his parents and enjoys their company. If there is any impression to be formed from the Family Consultant’s evidence, it is that he wants to spend time with his father. Indeed, there was even a hint by the Family Consultant that one possible explanation for the sadness he was observed to demonstrate at times, was that he wanted to spend more time with his father. If this is so, this desire is hamstrung by the issues raised in this case.
Nature of relationship
X appears to have excellent relationships with not only his parents, but the other significant adults in his life. This consideration does not present as an issue in this case. None of the proposals before the Court would change this. The Father’s obvious concern is that a reduction in quantity of time results in a reduction of quality of relationship, not just with him, but with his family as well. The evidence does not go as far as establishing this.
Facilitating and encouraging relationships
Despite the Father’s clearly articulated concerns about this, there is no evidence before the Court to suggest that the Mother has done anything but to encourage X’s relationship with his father, despite some attitudes that the Court is critical about, which will be discussed later in these reasons. Even if the Court is wrong about this, and she has failed to do these things, she has been quite unsuccessful as is demonstrated by the excellent relationship that X enjoys with his father. The Family Reports are replete with comments indicating that the Mother has encouraged this, often despite behaviours by the Father that she finds intrusive, confronting and abusive. The Father needs to understand that just because the Mother does not accept his proposals and, from his perspective, thus continues the litigation, it does not mean she is not facilitating X’s relationship with him. Failure to agree with him is perfectly understandable if his proposals are not, from her perspective, in X’s best interests. Ultimately it is for this Court to decide.
To the extent that the Mother asserts the Father has failed to facilitate and encourage X’s relationship with her, this is clearly unsupported by the evidence. The matters that she complains about pertaining to the Father are better dealt with when considering parental attitudes.
Likely effect of change
Even on the Mother’s proposal, which seeks a reduction in the Father’s time with X, there will be change for him. Certainly on the Father’s proposal, this too will be the case. The Father’s change is proposed to be incremental and, in any event, if the Court is minded to increase X’s time, it is not bound by the Father’s proposal as to progression. There is no change contemplated by any of the proposals that is likely to affect X’s relationship with either parent. This consideration is not determinative in this case.
Issues of practical difficulty and expense
What should be abundantly clear to the reader of these reasons for judgment so far is that X’s parents must not be allowed, so far as it is possible for Orders to achieve, to come into contact with each other. Their relationship is so dysfunctional and their communication so potentially toxic, that if it is possible to construct parenting Orders that keep them in separate worlds, but which are otherwise in X’s best interests, this must be done. Issues of convenience to the parents must be subsumed to this greater need. The orders that will be made are as prescriptive as is reasonably possible.
There are otherwise no issues of practical difficulty and expense in this case.
Maturity, sex, lifestyle, background, character of the parents and child
X’s father is single-minded in terms of his commitment and love for X and in terms for his quest to achieve what is best for him. The problem is there is only one way to achieve this – his way. X’s mother reacts to his father’s single-mindedness in the same way. The fact that X attends two martial arts schools is evidence of this. The visit by the Father to X’s school during the lunch adjournment on 18 June 2014, the first day of the hearing, is further evidence of this single-mindedness, as well as other unhelpful attributes. Exhibit A11 is an email sent to the Mother on 19 June 2014 by the Relieving Principal of X’s school. The second paragraph states:
Another incident occurred at school during lunch break yesterday (Wednesday 18th June 2014) when X’s father attended the school office in the time between 1pm and 1:30pm. He approached the office staff to ask if they had recorded his mobile phone number and email address. He then asked if X was at school. Office staff said it was school policy not to give this information out. Mr Page then left the office and without authority entered the school playground with another male and walked over to the lower grassed playground and spoke to X. School staff sent for me, but by the time I had moved to this area to investigate he and the other male had left. X confirmed that his father had spoken to him during this time.
Should the Father cease to be a fly-in fly-out worker, and commence working in an area proximate to where the Mother and X lives, what arrangement should be put in place? The Father proposed equal time week about. The Independent Children’s Lawyer proposed four nights each fortnight with alternating Friday to Monday in one week, and Thursdays overnight on the other week. The Mother does not appear to make a proposal in this regard.
This is a difficult issue. There is no evidence of any present uncertainty about the Father’s employment on a fly in/fly out basis. It is a possibility, though not advanced as a probability in anyone’s case. On the facts of this case, however, and with a view to minimising the prospect of further litigation, it is better to make Orders to cover the possibility.
Pursuant to the Orders foreshadowed above, X will spend about one third of his term-time with his father by Term 1 2016. The Court is satisfied that this is equivalent to substantial and significant time and that it is both in X’s best interests and as reasonably practicable as it can be having regard to X’s parents. It must follow logically that, in the absence of any substantial changes in circumstances, one third of his term-time with his father would continue if his father ceases to work in a remote location. Thus, one would expect about nine nights in each four weekly period to approximate to the current arrangement. Over a four week period it becomes harder to implement a week long block with the Father without creating possibly long absences in between. The Court prefers to make it a four night block from Thursday to Monday on one weekend of the month, and then a five night block from Wednesday to Monday on the second weekend thereafter. Whilst there were no proposals advanced in this regard, in order to avoid future disputation, X should also be able to spend time with his father from after school on the remaining Thursdays of the month through to 8:00pm.
In relation to school holidays, the Independent Children’s Lawyer proposed, in effect, half of the mid-year school holidays, eight consecutive nights in the 2015/2016 school holidays progressing to half by 2016/2017. The Father’s proposal was highly definitive but seemed to differ from the Independent Children’s Lawyer as to end of year school holidays, only in that he proposed about half immediately. The Mother’s proposal is different from the Independent Children’s Lawyer only as regards the end of year school holidays, which she said should be limited to one week only.
Both the Mother and the Independent Children’s Lawyer specified that the Father be personally available to spend time with X in school holidays. That is not unreasonable. The Court will make that order. The only evidence led in the Father’s case was from himself. This considerably narrowed the scope of possible alternate carers for X if the Father were not personally available.
The Mother’s proposal for end of year school holiday time is otherwise unnecessarily restrictive of X’s relationship with his father, and of the opportunities for them to do special things. The Independent Children’s Lawyer is correct, however, in suggesting that the progression to equal time in the end of year school holidays should be more measured. The Court will adopt this proposal.
The Court acknowledges that this would, in effect, provide for X to spend time with the Father for a seven night block during the September/October 2015 school holiday period and for an eight night block during the December 2015 school holiday period, which is quicker than the progression of overnight time ordered during the school term. However, the Court is of the view that time during school term is inherently different to time during the school holidays because, for example, any school related issues that could aggravate the communication between these parents is likely to be minimised during the school holidays. The Court is satisfied that the additional night would not cause any major disruption to X in the circumstances and would allow X to fully enjoy holiday time with his father.
There are raft of remaining differences in the detailed Orders proposed. The Independent Children’s Lawyer and the Mother seemed to be ad idem on some of these contentions by the time the Independent Children’s Lawyer filed her Further Amended Minute of Order sought. The Court will make Orders in accordance with this document. It should be noted, however, that the evidence led did not address the majority of the issues, so the Court was forced to make this decision having regard to findings made in other contexts in this case. Having said that:
·Order 8 fairly, and in a child-focussed manner, deals with special days;
·Order 9 is a necessary consequential order;
·Orders 11-17 are necessary, important and are justified by evidence but insofar as they require the parents to communicate with each other may well turn out to be aspirational;
·Order 18 is absolutely essential. (omitted) Play Centre has been used by the parents before. At some stage X may grow out of this.
·Orders 19-27 are also necessary, important, and are justified by the evidence and go no further than they need to in the circumstances of this case. Some of the restraints were not contentious.
·Orders 28-31 are necessary, particularly in view of the necessity to order sole parental responsibility to the Mother in this case;
·Orders 32-39 are likewise considered necessary and appropriate, particularly with a view to minimising the prospect of further litigation between the parents.
The Court is concerned about the possibility of future litigation between the parents. If I am reasonably available and subject to any application either parent may wish to make on this issue, any further application relating to X should be filed in the first instance before me. It is in X’s best interests that any future litigation about him be conducted before a Judge who is familiar with his case. An Order will be made to this effect.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 23 July 2015
Schedule one
Order sought by the Mother
That the mother shall have sole parental responsibility for the child of the relationship, namely X (“X”) born (omitted) 2008.
That in exercising that parental responsibility, the mother shall first consult any proposed decision with the father in order to ascertain his views, and thereafter shall inform the father of any decision made by her in the exercise of her parental responsibility in writing within 14 days.
That X shall live with the mother.
That the father shall forthwith provide a copy of his work roster to the mother and provide the mother with a copy of any revised roster by mail within 24 hours of receipt by the father of any revised or amended work roster.
That X shall spend time with the Father as follows:
During School Terms
(a)If the father is employed interstate:
(i)In a three weekly cycle, on each occasion that the Father returns from working interstate for three consecutive nights commencing at 3.00pm on the day of the fathers return to the (omitted) (Friday) and concluding at 9.00am three days later (Monday) with the father to return X to school, or to (omitted) Play Centre & (omitted) Play Centre at 9.00am if it is a non-school day.
(b)If the father is employed in the local area, each alternate weekend from after school Friday until before school Monday (or 9.00am Monday if it is a non-school day), commencing the second Friday of each school term.
That subject to the father’s compliance with the provisions of order 4, X shall spend time with the Father as follows:
(a)During the NSW term 1, 2 and 3 public school holiday periods, subject to the father being personally available to care for X, the father’s time with X in accordance with Order 5 above shall be suspended and the father shall spend time with X for one week commencing at 3.00pm on the day of the father’s return to the (omitted) and concluding at 5.00pm seven nights later.
(b)During the NSW Christmas school holiday periods, subject to the father being personally available to care for X, the father’s time with X in accordance with Order 5 above shall be increased to not more than seven consecutive nights on one occasion commencing at 3.00pm on the day of the father’s return to the (omitted) and concluding at 5.00pm seven nights later, provided that if the father’s time with X in accordance with this Order includes Christmas Eve, Christmas Day and/or Boxing Day, then the father’s time with X shall be suspended on those days and X shall spend time with the mother in accordance with Order 8(e) below.
That X spend additional time with the father, provided that the father is present in the (omitted) for special occasions as follows:
(a)For not less than three hours on X’s birthday as agreed between the parties but failing agreement from 3.00pm until 6.00pm, if X is not otherwise spending time with the father pursuant to orders 5 and 6 above.
(b)For not less than three hours on the father’s birthday as agreed between the parties but failing agreement from 3.00pm until 6.00pm, if X is not otherwise spending time with the father pursuant to orders 5 and 6 above.
(c)From 9.00am until 5.00pm on Father’s Day each year.
(d)From after school on the Thursday immediately preceding Good Friday until 6:00pm Easter Saturday in even numbered years and from 6:00pm Easter Saturday until 6:00pm Easter Monday in odd numbered years.
(e)From 5.00pm Christmas Eve until 4.30pm Christmas Day in even numbered years and from 4.30pm Christmas Day until 5.00pm Boxing Day in odd numbered years.
That X’s time with the father be suspended and he spend additional time with the mother for special occasions as follows:
(a)For not less than three hours on X’s birthday as agreed between the parties but failing agreement from 3.00pm until 6.00pm, if X is not otherwise living with the mother.
(b)For not less than three hours on the mother’s birthday as agreed between the parties but failing agreement from 3.00pm until 6.00pm, if X is not otherwise living with the mother.
(c)From 9.00am until 5.00pm on Mother’s Day each year.
(d)From 6:00pm Easter Saturday until 6:00pm Easter Monday in even numbered years and from after school on the Thursday immediately preceding Good Friday until 6:00pm Easter Saturday in odd numbered years.
(e)From 5.00pm Christmas Eve until 4.30pm Christmas Day in odd numbered years and from 4.30pm Christmas Day until 5.00pm Boxing Day in even numbered years.
The parties shall communicate matters pertaining to the care, welfare and development of X:-
(a)By telephone or text in the case of an emergency.
(b)For any minor illnesses suffered by X which prevent him from attending school, by short factual text message in the morning of the day this occurs.
(c)For pressing, but non-emergency issues, by short factual text message.
(d)In relation to major issues such as long term decision making, the following communication plan is to be implemented:-
(i)The parent who wishes to raise the issue must do so in writing, preferably by short factual text message;
(ii)The other parent must respond within 7 days;
(iii)The instigating parent must reply to that response within 7 days;
(iv)Further direct negotiations are to occur within the following 7 days;
(v)In the event that no agreement is reached within the 21 days period (unless it is mutually agreed to in writing between the parents to extent this time) then the mother shall exercise her sole parental responsibility in accordance with Order 1.
That wherever possible, in order to facilitate changeover the parties shall collect X from or return X to school. If changeover cannot occur at school, then to facilitate changeover the father shall collect X from the mother or her agent at (omitted) Play Centre at the beginning of his time with X and the father shall return X to the mother or her agent at (omitted) Play Centre at the end of his time with X, and in doing so the father shall be restrained by injunction from exiting his motor vehicle during changeover.
That each parent is restrained from making critical or derogatory remarks about each other or members of each other’s families in the presence or hearing of X and each parent must do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent in the presence of hearing of X.
Each parent is restrained from using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to X’s care, welfare and development.
Each parent is restrained from making a proposal to alter the time X lives with or spends time with the other parent
Each parent is restrained from discussing matters pertaining to parental responsibility or parental decisions in the presence or hearing of X and will use their best endeavours to ensure that no other person does so.
Each parent is restrained from using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use).
Each parent is restrained from involving X in their parental communication.
Each parent is restrained from taking, consuming and/or being affected by an illicit substance while X is in the respective care or for 24 hours preceding such time.
Each parent is restrained from enrolling X in any extracurricular activity without first consulting the other parent, however both parents are to not unreasonably withhold their consent to X participating in extracurricular activities.
That each parent facilitate X’s attendance at his usual educational, sporting, extra-curricular activities.
That the Father shall forthwith attend an anger management course, with the Father to pay the costs of such course, and shall provide proof of his attendance to the Mother and ICL within 3 months of the date of these Orders. In the event that the Father does not provide proof of his attendance within 3 months of the date of these Orders, then X’s time with the Father shall be suspended until proof of attendance is provided to the Mother and ICL.
That the Father shall do all things to submit, at his cost, to supervised chain of custody drug screening through urinalysis and to provide a urine sample within 24 hours of a request being made by the Mother or her solicitor, provided that no more than 4 requests are made in a 12 month period. The Father shall do everything necessary to provide all authorisations as to enable the results to be made available to the Mother or her solicitor within three days of urinalysis.
That in the event X’s passport is due to expire, each party shall do all things necessary and sign all necessary documents to enable that passport to remain current, with the cost of such renewal to be borne equally between the parties.
In the event that the either party fails to do anything he/she is required to do pursuant to these orders in connection with the issue of a passport, then pursuant to section 106A the Registrar of the Court is hereby authorised to sign any such document on the father’s behalf, upon being satisfied (by affidavit, in chambers) that a relevant failure or refusal has occurred.
That the mother retain possession of X’s passport between periods of overseas travel.
That each party be restrained from taking X overseas without first providing the other party with 42 days written notice of any proposed overseas travel.
That the mother be entitled to take the child on overseas or interstate holidays on not more than two occasions per year for not more than 4 weeks, provided that she gives the father six weeks’ notice for interstate travel and 12 weeks’ notice for overseas travel and provides copies of all travel dates, flight details, itineraries and contact numbers.
That the father be restrained from taking X overseas without the express written consent of the mother, which consent shall not be unreasonably withheld.
That these Orders constitute authority for the mother and father to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of X’s teachers.
That these Orders constitute authority for the mother and father to each liaise with X’s treating medical practitioners and obtain information about any medical treatment and any other medical issues.
That the father be restrained by injunction from:-
(a)Attending upon the mother’s residential address;
(b)Attending upon any of the maternal family members’ residential addresses;
(c)Contacting any of the maternal family members by telephone;
(d)Assaulting, threatening, intimidating, harassing, molesting or interfering with the mother; or
(e)Making video or audio recordings of the mother, including conversations between him and the mother, without her knowledge or written consent.
(f)Attending at X’s school or extra-curricular activities at times that X is not in his care in accordance with these Orders.
NOTATION:
A.The parties agree that the father will give all soft and hard copies of the mother’s overseas holiday photos to the independent children’s lawyer for the mother’s collection, and that the mother will return 2 barbeque setting chairs to the father prior to collecting these photos.
Orders sought by the Father
That both parents share parental responsibility for the child of the relationship, namely X born (omitted) 2008.
That X lives with the Mother
The child spend time with the Father as follows:
3.1.Whilst the Father remains employed on the roster under which he is currently employed;
3.1.1.During 2015 school term 2, for five (5) consecutive nights in each three week period commencing 3:00pm on the first Friday of the Father’s rostered days off and concluding at 9:00am the following Wednesday.
3.1.2.During 2015 school term 3, for six (6) consecutive nights in each three week period commencing 3:00pm on the first Friday of the Father’s rostered days off and concluding at 9:00am the following Thursday.
3.1.3.From 2105 school term 4 onwards, for seven (7) consecutive nights in each three week period commencing 3:00pm on the first Friday of the Father’s rostered days off and concluding at 9:00am the following Friday.
3.2.If the Father is employed locally, for seven (7) consecutive nights in a two week cycle commencing at 3:00pm on Friday until 9:00am on the following Friday, with first handover to be on the second Friday that the Father no longer has to travel interstate to work.
3.3.At other times as agreed by both parties in writing.
That during the school holidays X’s normal time with the father be suspended and X spends time with the father as follows;
4.1.3pm 26 June 2015 to 3pm 4 July 2015 (2015 term 2 holidays)
4.2.3pm 18 September 2015 to 3pm 26 September 2015 (2015 term 3 holidays)
4.3.3pm 2 January 2016 to 3pm 13 January 2016 (2016 Christmas holidays)
4.4.9:30am 16 April 2016 to 3pm 23 April 2016 (2016 term 1 holidays)
4.5.9:30am 9 July 2016 to 3pm 16 July 2016 (2016 term 2 holidays)
4.6.9:30am 1 October 2016 to 3pm 8 October 2016 (2016 term 3 holidays)
4.7.3pm 23 December 2016 to 3pm 31 December 2016 (2016 Christmas holidays)
4.8.3pm 13 January 2017 to 3pm 21 January 2017 (2016 Christmas holidays)
4.9.3pm 7 April 2017 to 3pm 15 April 2017 (2017 Easter holidays)
4.10.3pm 30 June 2017 to 9:30am 8 July 2017 (2017 term 2 holidays)
4.11.3pm 22 September 2017 to 9:30am 30 September 2017 (2017 term 3 holidays)
4.12.3pm 15 December 2017 to 3pm 23 December 2017 (2017 Christmas holidays)
4.13.3pm 5 January 2018 to 3pm 13 January 2018 (2017 Christmas holidays)
4.14.9am 21 April 2018 to 3pm 28 April 2018 (2018 term 1 holidays)
4.15.9am 14 July 2018 to 3pm 21 July 2018 (2018 term 2 holidays)
4.16.9am 6 October 2018 to 3pm 13 October 2018 (2018 term 3 holidays)
4.17.9am 29 December 2018 to 3pm 17 January 2019 (2018/19 Christmas holidays)
That X’s normal time with the father be suspended as follows;
5.1.4pm 26 March 2016 to 9:30am 28 March 2016 (for Easter Sunday)
5.2.9:30am 8 May 2016 to 5pm 8 May 2016 (Mother’s Day)
Both parties cause the child to attend school promptly on each day he is enrolled to attend unless the child is ill in which case a doctor’s certificate will be provided to the other parent.
Wherever possible, in order to facilitate handover the parties shall collect from or return X to school. If changeover cannot occur at school, then to facilitate changeover the father shall collect X from the mother at (omitted) Play Centre at the beginning of X’s time with him. The father will return X to the mother at (omitted) Play Centre at the conclusion of X’s time with him.
The child communicates with the Father by telephone at 9:00am on each Saturday and 7pm on each Wednesday that the child has no physical contact with the Father with the Father to phone the Mother’s mobile phone. If this time proves unsuitable, the Mother is to provide an alternative time for the Father to call and speak with X.
The child communicates with the Mother by telephone at 9:00am on each Saturday and 7pm on each Wednesday that the child has no physical contact with the Mother with the Mother to phone the Father’s mobile phone. If this time proves unsuitable, the Father is to provide an alternative time for the Mother to call and speak with X.
10. The Father can contact X by calling the Mother’s mobile phone at 9:00am on the following days when X is not in the Fathers care;
10.1.X’s birthday;
10.2.The Father’s Birthday;
10.3.Father’s Day;
10.4.Easter Sunday;
10.5.Christmas Day;
With the Mother to do everything reasonable to facilitate this contact by ensuring her mobile phone is switched on, adequately charged and within a mobile service area.
11. The Mother can contact X by calling the Father’s mobile phone at 9:00am on the following days when X is not in the Mothers care;
11.1.X’s birthday;
11.2.The Mother’s Birthday;
11.3.Mother’s Day;
11.4.Easter Sunday;
11.5.Christmas Day;
With the Father to do everything reasonable to facilitate this contact by ensuring his mobile phone is switched on, adequately charged and within a mobile service area.
12. The Mother is to accept emails from the Father, and reply by email within 7 days of receipt of an email from the Father, to allow for more open communication and development of parenting relationship between the two parties.
13. In relation to major issues such as long term decision making, the following communication plan is to be implemented:
13.1.The parent that wishes to raise the issue must do so in writing, preferably be email;
13.2.The other parent must respond within 7 days;
13.3.The instigating parent must reply to that response within 7 days;
13.4.Further direct negotiations are to occur within the following 7 days;
13.5.In the event that no agreement is reached within the 21 days (unless it is mutually agreed to in writing between the parents to extend this time) then the parents shall employ the services of an independent Family Consultant or Counsellor to assist them reaching a decision. The cost of the consultant is to be shared equally by the parents.
14. That these orders constitute authority for each of the parents to contact X through his school email account. Each parent must limit the number of emails to one per week, unless a response is sought by X in a reply email.
15. That these orders constitute authority for both the Mother and the father to each receive copies of school reports, newsletters, notices and school photograph order forms and to attend any school event to which all parents are invited including parent/teacher interviews, subject to the convenience of X’s teachers.
16. Each parent facilitates X’s attendance at his usual educational, sporting and extracurricular activities.
17. Each party provide at least 42 days written notice of an intention to take X overseas. Written notice shall include the proposed travel dates, locations & contact details.
18. Neither party is to take X overseas without the express written consent of the other party. Neither party is to unreasonably withhold consent. In the event that agreement on travel is not reached, the resolution plan as stated in order 13 shall be used.
19. The Mother shall provide X’s passport to the Father within 7 days of a request for the document.
20. Each parent is entitled to liaise with X’s treating medical practitioners and obtain information about any medical treatment and other medical issues related to X.
Order sought by the Independent Children’s Lawyer
Parental Responsibility
The Mother have sole parental responsibility for the Child, X born (omitted) 2008.
The Mother inform the father, within 14 days, of any decision made by the mother in exercise of parental responsibility.
Living Arrangements
The Child live with the Mother.
Spending Time – while the Father continues to work in a location remote to the Mother’s home
If the Father continues to work in a location remote from the Mother’s home, that the following provisions apply.
The Father provide a copy of his work roster to the Mother forthwith and provide the Mother with a copy of any revised roster, by email, within 24 hours of receipt by the Father of any revised or amended work roster.
Once the child commences school, and subject to the Father’s compliance with the provisions of Order 5, the child spend time with the father:
(a)During New South Wales public school terms, for 5 consecutive nights in each three week period commencing at 3pm or the conclusion of school on the day of the Father’s return to the (omitted) and concluding at 9am of the commencement of school on the last day;
(b)During the New South Wales Term 1, 2 and 3 public school holiday periods, subject to the father being personally available to care for the child, for one week, commencing at 3pm on the day of the Father’s return to the (omitted), and concluding at 9am on the last day;
(c)During December 2015 New South Wales Christmas public school holiday period, subject to the Father being personally available, for 8 consecutive nights, commencing at 3pm on the day the Father returns to the (omitted), and concluding at 9am on the last day;
(d)Commencing from the December 2016 New South Wales public school Christmas holiday period, for one half of the school holiday period, subject to the father being personally available, commencing at 3pm on the day the father’s returns to the (omitted) and concluding at 9am on the last day.
In addition to the time the Child spends with the father pursuant to Order 6, when the Father is present in the (omitted), that the child spend time with the father:
(a)If the child’s birthday does not fall on a day the child is spending time with the Father, on the child’s birthday from 3pm to 6pm;
(b)If the father’s birthday does not fall on a day that the child is spending time with the father, on the father’s birthday from 3pm to 6pm;
(c)From 9am to 5pm on Father’s Day;
(d)From 4pm Christmas Even until 4pm Christmas day in even numbered years;
(e)From 4pm Christmas Day until 4pm Boxing Day in odd numbered years.
The time the Child spends with the Father falls on any of the following occasions, such time be suspended, unless otherwise agreed:
(a)On the Child’s birthday from 3pm to 6pm;
(b)On the Mother’s birthday, from 3pm to 6pm;
(c)On Mother’s Day, from 9am to 5pm;
(d)From 4pm Christmas Eve until 4pm Christmas Day in odd numbered years;
(e)From 4pm Christmas Day until 4pm Boxing Day in even numbered years.
Spending Time – if the Father is not working in a location remote from the Mother’s home
If the Father is no longer employed in an area remote from the Mother’s home, that the child spend time with the Father:
(a)In lieu of time set out in Order 6(a):
(i)Each alternate weekend from the conclusion of school on Friday until 9am or the commencement of school on Monday commencing the second weekend after the Father gives the Mother notice that he is no longer working at a location remotely from the Mother’s home;
(ii)Each alternate Thursday from after school until the commencement of school the following morning commencing the Thursday after the commencement of time set out in Order 9(a) above;
(b)At such times as are set out in Orders 6(b), (c), (d) and (e) with the time to commence on the first Saturday after school concludes;
(c)At such times as are set out in Order 7.
Communication
The Child communicate with the Father by telephone on two occasions in each week, between 6 and 7pm each Wednesday and 9am each Saturday, with the Father to telephone the Mother’s mobile telephone number.
The Child communicate with the Mother by telephone on two occasion during any time that the Child is spending time with the Father pursuant to Orders 6(a) and (b), between 6 and 7pm on the 2nd and 4th day with the Mother to telephone the Father’s mobile telephone number.
The Child communicate with the Mother by telephone on three (3) occasions during time the Child spends with the Father pursuant to Order 6 (c), (d) and (e) between 6 and 7pm on the 2nd, 4th and 6th days with the Mother to telephone the Father’s mobile telephone number.
Each parent facilitate the child communicating with the other parent at any time he expresses a wish to do so, and to facilitate such communication, the parent with the care of the child shall send a text message to the other parent, informing them of X’s wish, and the other parent telephone X as soon as practicable thereafter.
The parents communicate matters pertaining to the care, welfare or development of the Child:
(a)By telephone in the case of emergency;
(b)For pressing but non-emergency issues, by short factual text message;
(c)For minor day to day issues, by email;
(d)For any other issues, by letter sent by ordinary pre-paid;
(e)For matters requiring a response, a response is to be provided, in respect of communications pursuant to:
(i)Order 14(b), within 24 hours;
(ii)Order 14(c), within 5 days;
(iii)Order 14(d), within 14 days.
The parents will be courteous and civil towards each other and all other persons significant to the Child at all times but especially in the presence or within the hearing of the Child.
The parents are each to ensure that the other parents is kept informed of:
(a)any serious medical problems or illnesses suffered by the child and/or any invasive medical procedure performed on the child, with the other parent to be notified as soon as is reasonably practicable;
(b)any medical emergencies involving the child, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the child that needs to be taken during the time the child are with the other parent, with the other parent to be notified at the time of changeover;
(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen ( 14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;
(g)the email address for the parent, with any changes to be advised within twenty-four (24) hours;
(h)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.
Changeover
That wherever possible, in order to facilitate changeover the parties shall collect X from or return X to school. If changeover cannot occur at school, then (omitted) Play Centre changeover.
Restraints
Each parent is restrained from making critical or derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the Child and each parent must do all things reasonable necessary to remove the Child from the presence of any other person who does so.
Each parent is restrained from using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the Child’s care, welfare and development.
Each parent is restrained from making any proposal to alter the time the Child lives with or spend time with each of them pursuant to these Orders in the presence or hearing of the Child.
Each parent is restrained from discussing matters pertaining to parental responsibility in the presence or hearing of the Child and will use their best endeavours to remove the Child from the presence of any other person who does so.
Each parent is restrained from using abusive and/or aggressive language in any forms of communication set out in these Order (or any other form of communication that they use).
Each parent is restrained from involving the Child in their parental communication (including but not limited to asking the child to pass messages to the other parent).
Each parent is restrained from taking, consuming and/or being affected by any illicit substance while the Child is in their respective care or for 24 hours preceding such time.
Each parent is restrained from enrolling the Child in any extracurricular activity without first informing the other parent.
The parents be restrained from physically chastising or disciplining the Child in any way.
The Father be restrained by injunction from:
(a)Attending upon the Mother’s residential address;
(b)Attending upon any of the maternal family members’ residential addresses;
(c)Contacting any of the maternal family members by telephone;
(d)Assaulting, threatening, intimidating, harassing, molesting or interfering with the mother;
(e)Making video or audio recordings of the Mother, including conversations between him and the Mother, without her knowledge or written consent; or
(f)Attending at X’s school or extra-curricular activities at times X is not in his care in accordance with these Orders, except for the purpose of attending parent teacher interviews, or to purchase school uniforms for X, and in this respect, the father shall use his best endeavours to ensure this occurs at a time when the mother is not also present.
Specific Issues
Each parent facilitate the Child’s attendance at his usual educational, sporting, extra-curricular activities during any time the Child is in his or her respective care.
The Mother forward to the Father copies of all reports from X’s paediatrician and psychologist, within 48 hours of such report becoming available.
The Father do all things to comply with all directions or recommendations for X’s wellbeing being referred to in the reports from X’s treating practitioner.
The mother be granted leave to provide a copy of each of the Reports the Family Consultant be released to X's paediatrician and psychologist.
Passport
Within 21 days of a request from either parent, each parent do all things necessary and sign all necessary documents to enable a passport to be issued or renewed for the child.
The parties bear the cost equally, for the issue of a passport for the child.
The mother retain possession of the passport issued for the child, but is restrained from taking the child overseas without first providing the father with 42 days written notice of any proposed travel overseas.
Each party be restrained from taking the Child overseas without the express written consent of the other, which consent shall not be unreasonably withheld.
If either parent refuses or fails to do anything he or she is required to do pursuant to these Orders in connection with the issue of a passport then the Registrar of the Court is hereby authorised pursuant to section 106A of the Family Law Act1975 to execute any such documents on behalf of the defaulting parent, upon being satisfied (by affidavit, in chambers) that a relevant failure or refusal has occurred.
Authorities
These Orders constitute authority of the Mother for the Father to receive copies of school reports, newsletters, notices and school photograph order forms.
These Orders constitute authority of the Mother for the Father to each liaise with the Child’s treating medical practitioners and obtain information about any medical treatment and any other medical issues.
These Orders constitute the authority of the Mother for the Father to liaise directly with the Child’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the Child’s progress.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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