MADARY & WALBRUN
[2020] FCCA 998
•2 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADARY & WALBRUN | [2020] FCCA 998 |
| Catchwords: FAMILY LAW – Parenting – relocation – mother moves from Hobart to City A, Queensland – changeover – costs of travel – where the child is to attend school. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA. |
| Cases cited: Bennett & Bennett (1991) FLC ¶92-191 |
| Applicant: | MS MADARY |
| Respondent: | MR WALBRUN |
| File Number: | HBC 372 of 2011 |
| Judgment of: | Judge Baker |
| Hearing dates: | 24, 25 and 26 February 2020, 15 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Hobart |
| Delivered on: | 2 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr Trezise of Counsel |
| Solicitors for the Respondent: | Wallace Wilkinson & Webster |
| Counsel for the Independent Children's Lawyer: | Ms Ryan of Counsel |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
THE COURT ORDERS THAT:
All prior parenting orders are hereby discharged.
All extant applications are dismissed.
Ms Madary (“the mother”) and Mr Walbrun (“the father”) have equal shared parental responsibility for the child X born in 2008 (“X”).
AND IT IS NOTED: That in the event of the parties not being able to reach an agreement in relation to major long-term issues, they will access supported decision-making through community mediation processes.
X shall live with the father.
X shall spend time with the mother for the Term 1 & 2 school holidays from the day after term ends, and returning to the father’s care on the Sunday before term re-commences.
For the Term 3 school holidays X shall spend time:
(i)In even numbered years with the mother for the first half of the holiday period;
(ii)In even numbered years with the father for the second half of the holiday period;
(iii)In odd numbered years with the father for the first half of the holiday period;
(iv)In odd numbered years with the mother for the second half of the holiday period;
X will spend time with each party as outlined below:
(a)For Christmas and the summer school holidays in even numbered years:
(i)With the mother from 20 December for a period equal to half the school holiday period at the school at which X is enrolled (noting that the number of days in all school holiday periods is to be calculated in accordance with Order 8).
(ii)With the father for the other half of the school holiday period.
(b)For Christmas and the summer school holidays in odd numbered years:
(i)With the father from 20 December for a period equal to half the school holiday period at the school at which X is enrolled (noting that the number of days in all school holiday periods is to be calculated in accordance with Order 8).
(ii)With the mother for the other half of the school holiday period returning to the father three (3) days before the first day students attend school in Term 1.
Calculating the number of days in each school holiday period
In calculating half the school holiday periods:
(a)This formula will apply and uses dates applicable to the school at which X is enrolled
A = the last day students attend school in that term
B = the day before students attend school the next term
C = the number of nights between A&B inclusive
D = C divided by two
(b)The number of nights which equate to half the school holidays is equivalent to the number represented by “D” in the formula AND should “D” calculate to an odd number the mothers will have the benefit of an additional night.
Extended School holiday time
Provided the mother has given the father notice by email by 20 September with the dates of destination and travel itinerary for X to travel with her for a greater period than the ordered Christmas holiday time, then in even numbered years the mother may extend her nights with X pursuant to Order 7(a)(i) to a block of 28 nights, by adding them to the end of her ordered time.
Provided the father has given the mother notice by email by 20 September with the dates of destination and travel itinerary for X to travel with him for a greater period that the ordered Christmas holiday time, then in odd numbered years the father may extend his nights with X pursuant to Order 7(b)(i) to a block of 28 nights, by adding them to the end of his ordered time.
The parties will spend such further or alternate time as agreed in writing and in such cases email or text message will suffice.
Nothing in these Orders will prohibit the parties’ right to take X interstate during their ordered time with him.
Additional Time
X shall spend additional time with the mother in Tasmania: Unless agreed otherwise in writing, provided she gives the father not less than two weeks’ notice in writing and provided the father had not before that date paid for a weekend away with X himself, the mother may spend up to seven (7) nights with X on four (4) occasions per year.
(a)X shall spend additional time with the mother in Queensland: Unless agreed otherwise in writing and provided she has given the father not less than 4 weeks’ written notice:
(i)The mother is at liberty to exercise additional time pursuant to this Order on three occasions per year;
(ii)The time is to be spent in Brisbane;
(iii)The time will occur on Tasmanian public holiday weekends, during school term and excluding the Christmas/New Year period holidays and the Easter holiday periods; and
(iv)The flights booked for this time will be the closest time a flight is available after school ends and a flight leaving Brisbane by 6:00pm or earlier on the evening before school recommences.
(b)Such further or alternate time as agreed.
Changeovers
The changeover for X’s travel to spend time with the mother shall occur at the gate in Brisbane Airport.
Communication
Each party shall have liberal communication with X when he is in the care of the other party by telephone, Skype, FaceTime or other medium:
(a)On special days, such as parents’ or family birthdays, parents’ days, Easter Sunday, X’s birthday, N’s birthday, Mother’s Day, Father’s Day and Christmas;
(b)As agreed between the parties;
(c)The father is at liberty to communicate with X, each Wednesday during the Term 1, Term 2 and summer school holidays at 7:00pm;
(d)The mother is at liberty to communicate with X at least each Wednesday and Sunday that X is not in her care (unless he has been in her care within the twenty-fours (24) hours prior to that time); and
(e)Additionally, as initiated by X during reasonable hours.
Each party will ensure X is informed that he may call the other party at all reasonable times, and provided with the time, space, privacy and means to engage in that communication.
Education and school enrolment
The father shall enroll X at the B School commencing from Grade 7 in 2021.
That the father will provide the B School with a copy of these Orders.
That the father will ensure that the B School is aware that the mother is entitled to information about X, and input into decisions concerning X involving major long-term issues.
That both parties are at liberty to attend any school or extra-curricular events or occasions to which parents are ordinarily invited such as, but not limited to, parent/teacher interviews, assemblies, concerts, matches/games and carnivals.
In the event that it is necessary for X to change high schools, the father may elect which school X shall attend on the basis that he pays the school fees and levies, such alternative schools to be either the C School or D School.
X’s health care
Except in cases of an emergency X will attend E Medical Clinic, F Street, Suburb G when in need of the attention of a general practitioner and in the event an appointment is not promptly available, X may attend on another Clinic within the greater Hobart area.
In the event any referral thought necessary by X’s general medical practitioner and the parties cannot agree as which particular professional that referral should be to, the decision(s) will be left to X’s general practitioner at E Medical Clinic and the parties will cooperate with the referral process.
Both parties will ensure any doctor attending on X is aware that the other party is entitled to information about X, and input into decisions concerning X involving major long-term issues.
Each party will notify the other party of any major accident or illness which requires medical treatment for X, the treatment, prognosis and resolution as soon as practicable.
Each party will notify the other party in writing of any prescription medication prescribed or administered to X and the dosage, and that medication will travel with X between the parties.
Except in circumstances of an emergency, and except as pursuant to Order 23 above neither party will take X to an appointment with a specialist medical or allied health professional if the other party has expressed opposition to that course in writing.
Within two (2) weeks the mother will nominate in writing to the father, the specific general medical practice to which she will take X in Queensland and the mother will cause the practice to send a copy of the record of any attendance by X to E Medical Clinic.
Each party will do all acts and things to ensure that X remains engaged in therapeutic support on an ongoing basis, noting at present X is supported by Ms H, psychologist; that engagement only to be ceased or changed by:
(a)agreement between the parties in writing; or
(b)at the reasonable recommendation of the treating professional.
The parties will implement the reasonable recommendations of Ms H, or any subsequent professional supporting X.
In the event any of the sessions with Ms H or any subsequent professional for X are not covered by a mental health plan, the father will be responsible for payment of their fees.
The Court notes both parties seek and consent to each of the parties being provided with information from Ms H or any subsequent professional in respect of treatment of X, his progress and current or past recommendation made by that person, and it is ordered that each party provide a written authority to Ms H and indicate that the authority extends to therapy with or without a mental health plan.
The costs of any appointment(s) for the parties will be shared equally between them if it is a joint appointment or solely by the party being asked to meet with Ms H if only one party is seen.
Injunctions and Responsibilities
Unless agreed in writing by email, the parties are hereby restrained from taking X out of the State of Tasmania or retaining him out of the State of Tasmania during school term time.
Each party will ensure that any professional or therapeutic practitioner is informed that the other party is entitled to information about X, and input into decisions concerning X involving major long-term issues, and these Orders act as an authority for that purpose.
The parties will use civil and respectful language to communicate with each other and their family and each party be and are hereby restrained from:
(a)Denigrating the other party or members of the other party’s family to or in the presence of X, or allowing X to remain where any 3rd party does so; and
(b)Discussing these proceedings with X, or with any other person in the presence of X, or allowing X to remain where any 3rd party does so, except to explain that faced with difficult choices the parties sought help to make a decision in X’s best interests.
Travel and Passports
For the purposes of interstate travel for school holiday or agreed time:
(a)Unless otherwise agreed in writing, until X reaches the age of 13, X will travel accompanied by one of the parties.
(b)The parties are each entitled to send an agent of their choice as the accompanying adult for the travel interstate for changeovers.
Once X reaches the age of 13, each party will ensure that X flies as an unaccompanied minor.
With respect to the mother’s ordered school holiday time, the father will book and pay for the costs of the return flights for X between Hobart and City A, Queensland at least six weeks prior to travel and upon booking will provide the mother with an itinerary of the travel.
Each party will pay for the costs of his or her own accompanying airfares.
The mother will reimburse the father 30 per cent of the total cost of X’s return flights within within 14 days of the payment of the airfares and the provision of the receipt to her.
The parties will each endeavor to book flights with as little travel time between Tasmania and Queensland and as inexpensive a flight as possible.
In the event that either party seeks to travel overseas with X during a period of extended holiday time with X, the party shall provide to the other party 4 months’ notice of the dates of travel and the itinerary and copies of the return tickets 14 days prior to travel.
Apart from periods of travel overseas, the father will have possession of X’s passport in 2021, and each alternate year thereafter; the mother will have possession of X’s passport in 2020 and each alternate year thereafter.
The parties will send the passport to the other party via registered post on the first business day of each year, or if they are overseas with X on that date, within seven (7) days of their return to Australia.
Other Orders
Both parties:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c)Pay and otherwise be responsible for all costs associated with the program.
(d)Provide evidence to the other party’s solicitor that they have enrolled in the program.
(e)Provide evidence to the other party’s solicitor that they have successfully completed the program.
That the Independent Children’s Lawyer will provide a copy of these Orders to E Medical Clinic, and a copy of the Orders and the family report released 16 January 2020 to Ms J and Ms H.
The appointment of the Independent Children's Lawyer will continue until seven (7) days after the Independent Children's Lawyer has explained the Orders to the child or it is confirmed an agreed person such as X’s psychologist jointly or alone has explained the Orders to X, and then the appointment is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Madary & Walbrun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 372 of 2011
| MS MADARY |
Applicant
And
| MR WALBRUN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Madary (“the mother”) for relocation of the child X born in 2008 (“X”) to City A, Queensland. Mr Walbrun (“the father”) opposed the application and sought that X remain living in Tasmania with him.
Background
The parties commenced their relationship in 2006 and separated in 2011, when X was around two and a half years old. X is now 11 years old. He is in Grade 6 at K School.
The mother is 40 years old. She was born in City A, Queensland and moved to Tasmania in 2003. At the time of hearing, she was living in an Airbnb in Hobart, in anticipation of moving to City A on 27 February 2020. At the hearing, the mother indicated that she would definitely be moving to City A on 27 February, regardless of the outcome of this case. She had recently ceased casual employment as a customer service officer. She has accepted a scholarship offer to do studies at L University. This will take her three and a half years. The course was to commence on 5 March 2020. She organised temporary accommodation in City A with her sister or friends, until she obtains rental accommodation. The maternal grandparents live in close proximity to City A, as does the mother’s other son, who lives in Brisbane with his wife.
The mother has physical health difficulties. She is very unhappy living in Hobart without family support. This lack of support and her limited means has had a negative impact on her mental health and well-being. She believes that her ongoing physical symptoms have also had an impact on her mental health. In City A, she believes that she will be able to better manage her physical and mental health.
The father is 48 years old. He works part-time as a public servant. He has his own business. He has a partner, Ms M, whom he married in 2016. They have a daughter, N, who is five years old.
X has lived in the mother’s primary care since separation. Final parenting orders were made by consent on 9 September 2012, providing for X to spend increasing time with the father over time to reach four nights per fortnight by 2014. These arrangements were altered by agreement in 2014 to the five nights per fortnight schedule, which was occurring prior to the mother leaving Tasmania. X has remained living in Tasmania with the father pending this judgment. Time for X with the mother to occur during Easter 2020 had been agreed before the COVID-19 situation arose.
Proposals
The parties agreed to an order for equal shared parental responsibility.
The mother proposed that X live with her in City A. She proposed that he spend time with the father for one half of the first term Queensland holidays; the full duration of the third term school holidays together with one half of the summer school holidays; additional time during school terms of approximately one weekend per month, including three long weekends in a calendar year; alternate Easter holidays; and time on special occasions (such as birthdays), and whenever the father is in City A. She proposed that whether or not X is permitted to relocate, the non-residential parent will have liberal phone and virtual time such as by Skype or Facetime; X will travel accompanied by a parent or their nominee until he is 13 years old; changeover occur in Brisbane; and the parents will share school holiday travel costs equally, and the optional time (weekends during school time) on a three-quarter (father) and one-quarter basis (mother).
The mother proposed that if the court orders that X remain in Hobart, he live with the father in Hobart and spend time with her for one half of the first term school holidays and the duration of the third term school holidays.
The father amended his school holiday proposals during the hearing. He proposed that in the event that X remains living in Hobart, he spend time with the mother for the entire first term and second term holidays, and for one half of the third term and summer school holidays. He proposed that the changeovers occur at Sydney Airport, unless otherwise agreed in writing; that the cost of airfares be shared; that X be accompanied on flights until he is 13 years of age; proposals about how travel should occur after X is 13 years of age; orders regarding overseas or other travel for blocks of time, special occasions, X’s health, communication, restraints and X’s passport.
The father proposed that in the event that X lives in City A, the above spend time arrangements be reversed. He also proposed that he spend up to 7 days with X each visit in City A for weekends and school terms, on the occasions that he travels to City A on dates nominated by him. If those dates coincide with special days such as birthdays or Easter, that such time be shared equally by both parents, at times nominated by the father in consultation with the mother.
If X remains in Tasmania, the parties proposed that he remain at K School until he commences high school in 2021. Commencing from Grade 7 in 2021, the father proposed that X attend the B School; and in the event that he needs to change schools, the father elect that school and pay the school fees and levies. The father noted that the C School and D School are his preferred alternative schools.
The mother opposed X attending the B School for high school and proposed instead, that X attend D School or the C School. The Independent Children’s Lawyer (“ICL”) proposed he remain at K School until a transfer of enrolment is available at the C School.
If X lives in City A, the mother proposed that X attend O School or City A School for the remainder of Grade 6; and P School or City A School in 2021. The father and the ICL did not propose orders as to the school X should attend in City A. The father was cross-examined about this, but did not express a clear view.
The ICL proposed the orders contained in Exhibit ICL 9, which is annexed to these reasons.[1] She noted that those orders differed slightly from what she had sought originally, in line with the father’s proposal of holiday time. She proposed equal shared parental responsibility; that X live with the father and spend time with the mother during school holidays and special occasions. She submitted in closing that X spend the entire of one of the term holidays, together with the entirety of Term 2 holidays with the mother, provided X is back with the father the day before school starts. She proposed that the mother spend additional time with X in Tasmania. She proposed changeover occur in Brisbane; orders for communication with X when he is in the care of the other parent, education and school enrolment, health care, injunctions, travel and passports.
[1] See Annexure A.
Relevant Law
Relocation cases are recognised in many decisions as being very difficult. There is usually great disappointment for one parent. There can be consequences for children, in respect of their relationships with the remaining parent.
The competing proposals of the parties need to be properly considered against the criteria in s.60CC of the Act, informed by s.60B. Section 60B provides as follows:
(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)
If an order for equal shared parental responsibility is made, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable. If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend substantial and significant time with each of the parties. It must be considered whether such arrangements are reasonably practicable by addressing matters in s.65DAA(5).
Section 65DAA provides a framework to consider the advantages and disadvantages of the several time scenarios, but also other results which may be in the child’s best interests, including the proposal to relocate.[2] The advantages and disadvantages of that proposal can be balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.[3]
[2] Sayer & Radcliffe [2012] FamCAFC 209, [53].
[3] Taylor & Barker [2007] FamCA 1246, Duggan & Duggan [2009] FamCAFC 115, Heaton & Heaton [2012] FamCAFC 139.
In determining this matter, X’s best interests remain the paramount but not the sole consideration.[4] They must be weighed and balanced with the right of the mother’s freedom of movement.[5] The mother does not need to demonstrate compelling reasons.
[4] Family Law Act 1975 (Cth), s.60CA.
[5] Morgan & Miles (2007) FLC ¶93-343.
A court determines the child’s best interests by considering the primary and additional considerations set out in s.60CC of the Act.
Senior Family Consultant Ms Q
Senior Family Consultant, Ms Q, prepared a Family Report dated 21 January 2020. Ms Q recommended as follows:
a)X live in Tasmania;
b)In the event the parties reside in close proximity, X reside in an equal time arrangement;
c)In the event that X resides at a distance from one parent, he spend substantial school holiday time with his non-residential parent in their home location, with any additional time during school terms;
d)X have electronic communication with his non-residential parent twice per week, as initiated by them, and any additional time as initiated by X;
e)X be engaged with ongoing therapeutic support, and that only be ceased or changed by agreement between the parties or at the recommendation of X’s treating professional; and
f)Both parties engage in therapeutic support through an organisation such as Relationships Australia to enable them to work collaboratively in their co-parenting of X.
During cross-examination, Ms Q explained why she recommended that X remain living in Tasmania with the father. She said that X has a significant relationship with both parents and has benefited from time in the care of both of them since separation. She said that regarding the losses X knows he will experience leaving the paternal family, his connections at school and his community, and his perceived uncertainty about the situation for the mother in Queensland, he is likely to have more difficulty tolerating the relocation, than remaining in Tasmania.
Ms Q said that when she spoke with X and observed his relationships with his family, there was a level of equality in the relationships between him and his parents. She did not believe that there would be any greater loss either way, as separation from either parent would be equally challenging for X.
I place weight on Ms Q’s report and evidence. Her views did not change during cross-examination and her evidence was helpful. However, the ultimate conclusions that I reach will be based on all the evidence.[6]
[6] Hall & Hall (1979) FLC ¶90-713.
I turn now to the relevant factors under s.60CC of the Act, which the Court is required to consider in determining X’s best interests.
Primary Considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents;…
X has a meaningful relationship with each parent. He has spent substantial and significant time with each parent that has resulted in a “strong and connected relationship with each parent.”[7]
[7] Family Report [82].
I consider that it is of benefit for X to continue a meaningful relationship with each parent.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are no protective considerations in this matter.
Additional Considerations
Section 60CC(3)(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;
Each parent gave evidence that X has expressed views in support of that parent’s case.
Ms Q said that the dispute about the relocation has been a stressful experience for X. At the interview, he did not express a clear view to her about whether he wanted to relocate or not. He had a balanced view of his experience in both households.
Ms Q gained the impression that X wants to stay in Tasmania and that he enjoys his life here. She also gained the impression that X has reservations about the relocation, and he is uncertain about what it would be like for him. He has an idea of the household that he would move into and the dynamics of the situation in City A. He has spent a lot of time in Queensland, and with the maternal family, so he was well placed to consider whether he would want to live there.
Ms Q said X was able to articulate his views well, and did not seem disordered in his thoughts. She observed an internal conflict of what X thought was best for him. She felt he did not want to let his mother down. She did not observe any signs of anxiety.
Ms Q wrote in her report:
Although X is at an age whereby he understands the circumstances of the dispute and is able to express his own views, caution should still be taken in the weight afforded to such views given his level of maturity in determining, and reconciling, life altering decisions. However, this does not discount the importance of the information provided by X in the context of this assessment. While X did not share a clear view as to whether he wanted to relocate, it was apparent in information provided that he had considerable reservations as to what the proposed relocation would mean in terms of his living situation, social connections, and whether there would be any meaningful improvement in his mother’s health and practical circumstances. Having such concerns and uncertainty about life in Queensland in the context of the loss he knows he will experience in leaving Tasmania will likely make it more difficult for X to reconcile such an outcome.
I take into account X’s views, but do not place weight on them. This is one of the factors to weigh up with all the evidence in the assessment of what is in his best interests.[8]
Section 60CC(3)(b)
[8] R & R (Children’s Wishes) (2000) FLC ¶93-000; H & W (1995) FLC ¶92-598.
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);
X has close and loving relationships with both his parents. He has a strong relationship with the father’s wife, Ms M, and his sister N. He has close relationships with his maternal and paternal grandparents.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parties have been involved and proactive in X’s life.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Both parties have maintained X. The father has paid child support to the mother.
Section 60CC(3)(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;
X accepts that he will be separated from one of his parents. He told Ms Q, “I love them both a lot” and suggested that he would miss being separated from each of them equally. He said “I would miss them the same.”
However, X will have communication with the absent parent and will spend regular time with that parent. He will be able to maintain a meaningful relationship with the absent parent.
If X relocates to live in City A, the likely beneficial effect is that he will be able to live with his mother and will be able to spend time with the maternal extended family. The mother believes that life for X would improve significantly in Queensland, as she has family support, a scholarship to study, and she will be a happier parent as a result.
A move to City A will be a significant change for X, with a change of school and friendships. He will need to adapt to such changes. He will be separated from his sister N. If siblings have a good relationship with one another, it is ordinarily in their best interests that they remain living together. This can provide them with a sense of stability and support as they grow up.[9]
[9] Bennett & Bennett (1991) FLC ¶92-191.
Ms Q considered that the relationship between X and N was positive and caring. She noted the age difference, and said that X wanted to teach and show her things. She said that given the opportunity to spend significant time together growing up, siblings can develop and solidify supportive and nurturing relationships into adulthood.
If X remains in Hobart, he will have his father involved in his daily routine, and he will remain in a stable and familiar environment, which is likely to have a beneficial effect for him.
The likely adverse effect of X living in Hobart is that he will not have the opportunity to have his mother involved on a weekly basis in day-to-day activities, such as attendance at school and other extra-curricular activities. He will no longer have the benefit of her being involved in his daily routine.
Section 60CC(3)(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;
There is a practical difficulty and expense of X spending time with and communicating with the parent with whom he does not live.
The mother is in receipt of a scholarship and expects to earn an income from tutoring. She will earn around $828 per week.
The father is a public servant and he also has a business. In his financial statement, he deposed that his gross income is $1,573 per week or $81,796 per annum. His wife’s gross income is $53,560 per annum.
The cost of travel was estimated by the father at $600-$900 for X alone, and accompanied until X is 13 years old, at $1,200-$1,800 for him and the adult.
During cross-examination, the father conceded that the mother would not be able to afford to pay half of the costs of travel, which both parties had proposed. In closing, counsel for the father submitted that a figure somewhere between 50 to 100 per cent would be fair, and suggested it might be 66 per cent or 75 per cent for him to pay.
In relation to changeover, the ICL and the mother proposed that changeover occur in Brisbane. The father proposed that changeover occur in Sydney.
The mother’s evidence was that changeover in Brisbane gives more flexibility with flights. There are direct flights from Hobart to Brisbane. Flight times are around two and a half hours. There are limited direct flights from City A to Sydney. This means that on one leg she would need to take at least two flights. She does not know anyone in Sydney, so if she was stranded she would have to pay for accommodation. She considered that changeover in Sydney could be costly for those reasons.
The father gave evidence that he was not sure of the cost difference in flights if the changeover was in Sydney compared to Brisbane. His counsel referred him to Exhibit F3, and the father said Sydney was the cheaper option, “at a glance”. He considered that the downside of changeover in Brisbane was the potential of him having to stay overnight if he could not get back to Tasmania on the same day, and the increased costs associated with that stay. He considered that because Sydney is “geographically a bit more centred”, changeover there would be less likely to lead to one of the parties becoming stranded and needing to pay for overnight accommodation.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other
to provide for the needs of the child, including emotional and intellectual needs;
The mother has been diagnosed with Generalised Anxiety Disorder. This is only relevant insofar as it affects the best interests of X. Mental illness does not, in and of itself, mean that the mother is not a capable and loving parent. A court should only act protectively if the mother’s mental illness affects her capacity to care for X, or puts him at risk of harm.[10] There is no evidence that persuades the court that X is at risk of harm in her care. However, her behaviour at times has impacted X. She has difficulties in her interactions with others at times.
[10] Connor & Hulett [2011] FamCA 196, [16].
Her treating psychologist, Ms J prepared a report dated 11 February 2020. She wrote that the mother has had difficulties with anxiety for a number of years and continues to experience a number of symptoms of anxiety. She fears:
Negative evaluation from others and becomes anxious whenever in a situation in which she feels she is being judged. Ms Madary has reported being constantly criticised by X’s father Mr Walbrun, from before X was born, and having her thoughts and opinions continually invalidated or ignored by Mr Walbrun. She has internalised this negative criticism and often has thoughts of not being good enough. Ms Madary is hyper vigilant to others criticising her in any way due to her anxiety and previous experiences and can react defensively towards others whom she has perceived as negatively evaluating her. Ms Madary has had some difficulties with interpersonal relationships due to this. It is my opinion that Ms Madary currently meets criteria for a Generalised Anxiety Disorder. In addition to anxiety, Ms Madary also experiences symptoms of low mood. She reports feeling hopeless about the future and feeling that she has failed… Ms Madary’s symptoms of depression are situational, and almost exclusively linked to the current situation, feeling trapped in a city in which she has limited support, limited financial resources, a less than ideal living situation and limited opportunities. Ms Madary’s current symptoms of depression are also linked to her ongoing thoughts around having to make a choice between her son and moving to a location that she believes would improve her life and overall mental state, and the potential impact of this decision on either herself or X.
Dr J gave evidence that Ms Madary will need ongoing therapeutic support regardless of the outcome of these proceedings.
During cross-examination, the ICL referred Ms Q to Dr J’s evidence in relation to the mother’s diagnosis of Generalised Anxiety Disorder. This included Dr J’s recommendation that the mother continue therapeutic treatment, whether she is in Hobart or Queensland; and the evidence that her diagnosis affects her interactions with others, including the father and other people generally in her life.
The ICL asked Ms Q whether in this context it would be best for X to remain in Hobart in an equal shared care arrangement. Ms Q answered that, given the circumstances, X would benefit from having substantial and significant time with both parents. She said that some of the conversations she had with X and with each of the parents led her to conclude that he would benefit from continuing having significant time with his father, which would be lost should X relocate. X would experience a loss not having the balance between the two households because of this issue about the mother’s interactions with others.
Ms Q noted in her report:
There does appear to be some support for Mr Walbrun’s assertion that Ms Madary’s own wishes and views are dominant in her household and that X conforms to these due to concerns for her well-being. This could suggest X’s emotional well-being would be best supported by continuing to spend significant and substantial time in his father’s care.
Ms Q noted that she is not a psychologist, but her understanding is that if the mother’s mental health is not adequately managed day to day, X may be exposed to incidents that are inappropriate, such as conflict or dysregulation in the mother’s emotion. It may also result in him taking on more of a carer’s role, or having a sense of responsibility for his mother’s wellbeing, which is common for children parented by a parent who experiences mental health issues.
Ms Q said there were signs of X supporting and caring for his mother, but said that their relationship is still overall that of a normal parent-child connection.
An example of the mother’s dysregulation of emotion in X’s presence was when she attended a consultation with X with Mr R on 17 June 2016. Mr R gave evidence, which I accept, that X presented crying and was said by the mother to be having a “panic attack.” The mother also presented with uncontrollable shaking and crying, which she denied, although the contemporaneous notes of Mr R contained this information. I agree with the submission of the ICL that the mother’s behaviour indicated a lack of insight into the effect of her anxiety on X.
I am of the view that the father has the capacity to provide for all of X’s needs. I consider that he has a better capacity than the mother to provide for his emotional needs.
Section 60CC(3)(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;
The mother has a number of different difficulties with physical health, including thyroid cancer and Hashimoto’s disease. As already discussed, she has Generalised Anxiety Disorder and suffers from depression.
X suffers from anxiety and is treated by a psychologist. Mr R treated him between early 2017 and March 2018. Mr R prepared a report dated 5 April 2018. He identified the issues for X as anxiety and panic attacks; attention and concentration; behaviour and impulse control; learning problems; and consistency and stability pertaining to care arrangements.
After therapy, X reported improved functioning and decreased symptoms from the work he had done with Mr R, however anxiety, behavioural and family issues were not completely resolved. Mr R reported that X requires continued therapeutic support from a psychologist. Mr R reported to Dr S, X’s GP, that he worked on a range of activities for X to manage his anxiety. He recommended a psycho-educational assessment from the school psychologist and was of the view that X meets the criteria for ADHD. He also has anxiety symptoms which would benefit from support and treatment.
The parents had jointly engaged Mr R to treat X and shared the task of attending appointments with him. In March 2018 Mr R was informed that the mother withdrew her consent for him to continue treating X. He ceased treating X.
The mother’s evidence was that she withdrew her financial support for X’s consultations with Mr R and ceased accompanying X to his appointments in August 2017. She insisted that the consultations cease and threatened legal action. She said during cross-examination that Mr R would not provide her with information about X and that caused issues with their relationship.
Section 60CC(3)(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;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has a responsible attitude to parenting, although I consider that she did not act responsibly when X missed seven weeks of school in 2018 and three weeks in 2019.
I consider that overall the father has a responsible attitude to parenting. He is committed to X’s education.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There are no family violence orders and family violence is not an issue in this matter.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders that I intend to make should least likely lead to the institution of further proceedings.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
The parties have had various co-parenting difficulties regarding psychological or medical issues for X. Ms Q wrote that both parties expressed feeling disgruntled about the nature of the co-parenting relationship, blaming each other. They cannot agree on X’s education. They have differing views about X’s needs. Ms Q pointed out that this was highlighted in the report of Mr R, suggesting such issues have been happening for some time.
In March 2018, X was diagnosed with a sluggish bowel and prescribed Movicol Junior by Dr T. On 25 August 2018, the mother threatened legal action against Dr T. X ceased seeing Dr T and commenced seeing Dr U.
In 2017/2018, the mother had also threatened legal action against X’s psychologist Mr R, and withdrew her consent for those appointments to continue.
On 30 October 2019, X commenced seeing psychologist Ms H pursuant to interim orders. On 3 December 2019, there was a dispute between the parties, as a result of the father collecting X from school to take him to an appointment with Ms H.
Ms Q said that therapeutic support for both parents would assist their co-parenting relationship, particularly their communication and capacity to understand each other’s perspectives. She agreed that this was critical. She said that the delays in X’s mental health treatment, due to the disagreement between the parties about an appropriate mental health professional, was one example of how gaps in their co-parenting relationship can impact X’s wellbeing.
Schooling Dispute
As with all parenting proceedings, decisions about schooling are to be determined having regard to the best interests of the child, having regard to the relevant s.60CC considerations. Although there is no legal presumption which favours a resident parent choosing the school that the child attends, the reality of the child living predominately with one parent has some relevance.[11]
[11] Re G: Children’s Schooling (2000) FLC ¶93-025.
X currently attends K School. He will commence high school in 2021. If he lives in Tasmania, it was not disputed that he should remain at K School for the remainder of 2020.
Neither party provided any research about the schools. There was no evidence from the Family Consultant specifically about this issue or about X’s views about his attendance at the various schools proposed. The father’s oral evidence was that he placed X on a waitlist for B School some years ago. There was otherwise no evidence provided by either party about the availability of a place for X in 2021 at each school.
The mother proposed that if X lives in Tasmania, he attend D School because he would benefit from a mixed gender school, and a number of his peers will be attending that school. He has a number of friends who are girls and to deny him interaction with girls would limit his friendship numbers. She also said that X has expressed a wish to attend D School. She did not believe that a single gender school, such as the B School , would be in X’s best interests. As an alternative, she proposed the C School, which is also mixed gender.
The father proposed that X attend the B School because of the special support available for children with learning difficulties and the assistance that can be provided for X without a diagnosis. The school also has a special Year 9 programme. The father said that X will have familiar faces and friends at B School. His daughter is placed on the wait list at the C School. He would place X’s attendance at B School for the education above the advantage of being at the same school as his sister.
The father proposed the C School and D School as alternatives. He gave evidence that only if X is diagnosed with a learning difficulty, can he obtain assistance at the C School. There was no evidence about the support available at D School.
During cross-examination, the father said that he has spoken to X about his school preference. He told him he wants to go to D School because most of his friends will be attending there. The father said that he is considering D School as an option, but he prefers B School or the C School. He would need to make sure that X is comfortable with the school. He will not send him to a school to which he does not want to go. He will arrange for X to visit B School and is hoping that he will like what he sees. He said that if after seeing the environment, the programmes and opportunities offered, X does not want to go there because it is an all-boys school or he does not like the dance programme, he will not force him to attend there.
The ICL proposed that X remain at K School until a transfer of enrolment is available at the C School.
The B School and the C School are private schools, and the father will be responsible for paying the fees. The father gave evidence that X has experienced some educational difficulties. He deposed that X has had long-standing issues with his learning which became apparent as early as his Prep year at V School. He has been in contact with X’s teachers about his progress and his teachers have provided exercises for X to do at home to bring him up to speed. The father deposed that he had approached the mother in November 2016 with a proposal to enrol X in W School or the C School, “in an effort to address his educational needs”. He said that the mother had expressed a view that she would consider the C School, but had not provided any further update on her thoughts until these proceedings.
If X moves to City A, the mother proposed that he be enrolled in the O School or City A School for the remainder of Grade 6; and P School or City A School in 2021. The father and the ICL did not propose any school, should X live in City A. During cross-examination, the father said that he had not made enquiries, due to the expense and his hope that the move would not happen. He said he would contribute to the school fees. He expressed no preference between a public or private school.
The matter was relisted in respect of the schooling issue. The ICL tendered an educational report prepared by Ms Y, an educational and developmental psychologist. She swore an affidavit on 14 May 2020.
Ms Y reported that both parents requested the assessment to determine whether X has a learning disability to inform a decision regarding X’s school for Grade 7 in 2021. X was given various tests. The results indicated poor results for maths problem solving (low average range, but not low enough to be considered a specific learning disorder), maths fluency (extremely low range which may contribute to a diagnosis of specific learning disorder with impairment in maths), working memory (average range). Ms Y summarised the results as X having average working memory, average range for reading, and low average range for spelling. His maths scores are significantly lower, particularly maths fluency. Ms Y reported that there are several factors which could explain X’s unexpected academic underachievement in maths. She said:
While he may have a specific learning disorder, until other causes are ruled out, this cannot be ruled in. Firstly he has missed significant periods of school, which will most likely have impacted on his learning, especially considering he had already been identified as having difficulty with maths. Secondly, he has been identified as having difficulties with anxiety… It is likely that his anxiety has had a negative impact on some aspects of his learning. Thirdly, there is evidence of general support in maths, but possibly no specific targeted intervention to help X overcome his underachievement in maths fluency. It is possible that he has not developed these maths skills because he has not had opportunity to do so. Fourthly, X’s lower results in maths fluency may be due to undiagnosed attentional difficulties. Therefore, in my clinical judgment, I cannot categorically state that X has a specific learning disability. If X receives individual, targeted intervention for maths fluency over the next six months, and does not make significant progress, and it can be safely be assumed that he has Specific Learning Disorder – Maths. This is assuming his school attendance is regular, and he continues to receive support for managing his anxiety. X’s concentration and attention need assessing to determine if this is contributing to his difficulties.
Ms Y recommended that X have continued sessions with a psychologist, focusing on managing his anxiety. She also recommended that X have plenty of opportunity to excel in subjects he likes and is confident with, both at school and at home. She made specific recommendations in respect of maths and learning styles. She recommended that X again be assessed in respect of maths following six months of targeted intervention by the school psychologist or private psychologist, and that there be an investigation of ADHD.
I consider that whether or not X is diagnosed with a specific learning disorder, it is important that he receive the appropriate assistance in the future. X has been having difficulties for some time. In the Family Report, Ms Q referred to a Department of Education report from 2017, which detailed X to have “low maths and working memory scores.”
Parental Responsibility
The presumption of equal shared parental responsibility applies. The parties have agreed for an order for equal shared parental responsibility. I consider that it is X’s best interests for both his parents to be involved in decisions for his long-term welfare.
This is a difficult and finely balanced decision because X has a close and loving relationship with both parents, who are very much involved with his care.
Whilst I consider that it is in X’s best interests to spend equal time with both parents, this is not reasonably practicable, due to the distance between their residences. Substantial and significant time is not reasonably practicable for the same reason.
Having regard to all the evidence, I consider that it is in X’s best interests to live with the father in Hobart. X is an anxious child. I consider that he will have more stability and certainty about his living and social arrangements living with his father in Hobart. He will have the opportunity to spend significant time and grow up with his sister, N.
X will experience a loss by not living with his mother. He will miss her, however he will be able to have a meaningful relationship with her by travelling to City A at least four times per annum and also by regularly communicating with her. I have no concerns about the willingness and ability of the father to encourage a close relationship between X and his mother.
I am of the view that it is in X’s best interests that he spend time with the mother for the entirety of the first term and second term school holidays, one half of the third term school holidays and one half of the summer school holidays. There should be an option for both parents to extend their Christmas holiday time on an alternating yearly basis, to enable travel.
I consider that rather than X having weekend time with the mother in City A, the expense and time of travel would be better used by X having the entirety of two school term holiday periods with her. However, if the mother chooses to pay the cost of weekend travel for X in City A, that should occur. If she chooses to spend time with X in Hobart, I consider that she should also pay the costs of this travel.
Having regard to the financial circumstances of the parties, I am of the view that the father should pay 70 per cent of X’s travel costs and the mother 30 per cent, and each party can pay their own costs of travel until X is 13 years old.
I am of the view that the changeover should occur in Brisbane. This should limit the number of flights X will need to take. It should mean that the mother does not have to pay for accommodation, as she would need to do if the changeover were to occur in Sydney.
The father can book and pay for X’s return flights between Hobart and City A. The mother will be required to reimburse the father within seven days of the payment of the airfares. The mother will need to book her own airfares between City A and Brisbane. The flights should be booked not less than six weeks prior to the flights, to enable the changeover time to be arranged.
In respect of X’s schooling, I consider that it is in X’s best interests to attend the B School, where he will be given support for any difficulties he may continue to have. There will no doubt be other children commencing as new students in Grade 7. There is no evidence to persuade the court that X would not develop friendships with children there. I consider that the father will support X to settle in at B School. His evidence was that he will not force X to attend a school to which he does not want to attend, or which is not going to work for him. If after seeing the opportunities and the environment, he says he does not want to attend B School, then the father will accept that. I consider that it is appropriate that the father choose the alternative school for X, noting that his preferred alternatives were the C School, where N attends, and D School, which the mother proposed.
I will order that the parties ensure that X continues to have psychological counselling with Ms H.
I consider that the parties should attend the Parenting after Separation Program to assist them in improving their parenting relationship.
I consider that the orders proposed in Exhibit ICL9 should be made as follows:
(a)Proposed orders 1 to 7, with the appropriate changes in respect of the term holidays, as discussed. I will not make an order in respect of Mother’s Day or Father’s Day, which is impracticable.
(b)Proposed orders 8, 9, 11 and 12 in respect of extended school holiday period.
(c)The calculation in proposed order 15;
(d)Proposed orders 21 to 34 in respect of X’s health, apart from 31 which is unnecessary.
(e)Proposed orders 35, 36 and 38 in respect of injunctions;
(f)Proposed orders 39, 40 to 43, and 45 in relation to travel and passports. I will make an order about notice to be given if overseas travel is proposed during extended holiday time. I am not persuaded that an overseas travel order should be made. If a proposal is refused, an application can be made at that time.
(g)Proposed orders 46 and 47 in relation to the ICL providing copies of these orders and the family report to relevant people and also providing for her discharge.
I consider that these arrangements for X are in his best interests and mean that he will have a meaningful relationship with both his parents.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date: 2 June 2020
Annexure A
Orders Sought in the event the mother relocates to Queensland
That all prior parenting orders are hereby discharged.
That all extant applications are dismissed.
Parental Responsibility
That Ms Madary (‘the Mother’) and Mr Walbrun (‘the Father’) have equal shared parental responsibility for the child X born in 2008 (‘X’).
AND IT IS NOTED: That in the event of the parents not being able to reach an agreement in relation to major long-term issues, they will access supported decision-making through community mediation processes.
Live with Order
That X will live with the father.
Communication with X
Each parent shall have liberal communication with X when he is in the care of the other parent by telephone, Skype, FaceTime or other medium:
(a)On special days, such as parents’ or family birthdays, parents’ days, Easter Sunday, X’s birthday, N’s birthday, Mother’s Day, Father’s Day Christmas;
(b)Or as agreed between the parents;
(c)The father is at liberty to communicate with X, each Wednesday during the term 2 and summer school holidays at 7 pm;
(d)The mother is at liberty to communicate with X at least each Wednesday and Sunday X is not in her care (unless he has been in her care within the twenty-fours (24) hours prior to that time); and
(e)Additionally, as initiated by X during reasonable hours.
That each parent will ensure X is informed that he may call the other parent at all reasonable times, and provided with the time, space, privacy and means to engage in that communication.
Special Occasions and school holidays
That if not otherwise in the respective parents’ care, Order 6 is hereby suspended on the following dates and times and X will instead spend time with each party as outlined below : -
(a)For Christmas and the summer school holidays in even numbered years :
(a)With the mother from the 20 December for a period equal to half the school holiday period at the school at which X is enrolled (NOTING the number of days in all school holiday periods is to be calculated in accordance with Order 15).
(b)For Christmas and the summer school holidays in odd numbered years :
(a)With the father from 3 pm Christmas Eve to 3 pm Christmas Day; Christmas Day to 3 pm Boxing Day;
(b)With the mother for half the school holiday period returning to the father three (3) days before the first day students attend school in Term 1.
(c)Father’s Day : from 5 pm the day before Father’s Day to commencement of school Monday.
(d)Mother’s Day : In Tasmania from 5 pm the Friday before Mother’s Day to commencement of school Monday.
(e)Term 1 & 3 school holidays :
(a)In even numbered years with the father for the second half of the holiday period;
(b)In even numbered years with the mother for the first half of the holiday period;
(c)In odd numbered years with the father for the first half of the holiday period;
(d)In odd numbered years with the mother for the second half of the holiday period;
(f)Term 2 school holidays : With the mother from the day after term ends, returning to the father’s care on the Sunday before Term 4 commences.
(g)Additional time for the mother with X in Tasmania : Unless agreed otherwise in writing, provided the mother gives the father not less than two weeks’ notice in writing and provided the father had not before that date paid for a weekend away with X himself, the mother may spend up to seven (7) nights with X on four (4) occasions per year.
(h)Additional time in Queensland for the mother : Unless agreed otherwise in writing the following will occur and provided the mother has provided the father with not less than 4 weeks written notice :-
(a)The mother is at liberty to exercise additional time pursuant to this Order on three occasion per year;
(b)The time is to be spent in Brisbane,
(c)The time will occur on Tasmanian public holiday weekends, during school term and excluding the Christmas/New Year period holidays and the Easter holiday periods;
(d)The flights booked for this time will be the closest time a flight is available after school ends to a flight leaving Brisbane by 6 pm or earlier on the evening before school recommences.
(i)Such further or alternate time as agreed by exchange text message.
Extended School holiday time
That provided the mother has provided the father with emailed notice by 20 September with the dates of destination and travel itinerary she proposes X travel with her for a greater period that the Ordered week about live with Orders, then in even numbered years the mother may extend her nights with X pursuant to Order 7 (a) (iii) to a block of 28 nights, by adding them to the end of her Ordered time.
That provided the father has provided the mother with emailed notice by 20 September with the dates of destination and travel itinerary she proposes X travel with her for a greater period that the Ordered week about live with Orders, then in odd numbered years the father may extend his nights with X pursuant to Order 7 to a block of 28 nights inclusive of Christmas spend time pursuant to Order 7 (b) (i).
That all travel costs including the costs of X flying to and from Tasmania to accompany the Mother or father when they exercise extended time and including the accompanying adult fares on those flights connecting with the travelling parent, will be borne entirely by the travelling parent.
That the parents will spend such further or alternate time as agreed in writing and in such cases email or text message will suffice.
That subject to Order 33, nothing in these Orders will prohibit the parties’ right to take X interstate during their ordered time with him.
Changeovers
That changeovers for travel to spend time with the mother and returning to the father’s care following that time will occur at the gate in Brisbane Airport from which X is departing or arriving.
That unless agreed otherwise by emails or text changeovers when the changeover is being held in Tasmania it will occur as follows :
(a)On school days changeovers will occur at school.
(b)On non-school days changeovers will occur at the address at which the parent receiving X into their care is residing.
(c)The parties are at liberty to have an agent facilitate any changeover, provided if the changeover is to occur at school the parent sending an agent to collect X must inform X’s school of the name of the agent in advance of their arrival at changeover.
(d)Such alternate venue as agreed by email or text.
Calculating the number of days in each school holiday period
That in calculating half the school holiday periods : -
(a)This formula will apply and uses dates applicable to the school at which X is enrolled
A = the last day students attend school in that term
B = the day before students attend school the next term
C = the number of nights between A&B inclusive
D = C divided by two.
(b)The number of nights which equate to half the school holidays is equivalent to the number represented by “D” in the formula AND should “D” calculate to an odd number the mothers will have the benefit of an additional night.
Education and school enrolment
That on such date as a place becomes available X will attend C School, from the first day of term following that notification.
That until such transfer of enrolment is available as provided for in Order 16 above, X will remain enrolled at K School.
That the father will provide any school at which X is enrolled with a copy of these Orders.
That both parties will ensure any school(s) at which X is enrolled are aware that the other parent is entitled to information about X, and input into decisions concerning X involving major long-term issues.
That both parties are at liberty, regardless of who has care of X that night or day, to attend any school or extra-curricular events or occasions to which parents are ordinarily invited such as, but not limited to, parent/teacher interviews, assemblies, concerts, matches/games and carnivals.
X’s health care
That except in cases of an emergency X will attend E Medical Clinic, F Street, Suburb G when in need of the attention of a general practitioner and in the event an appointment is not promptly available, X may attend on another E Medical Clinic within the greater Hobart area.
That in the event any referral thought necessary by X’s general medical practitioner and the parents cannot agree as which particular professional that referral should be to, the decision(s) will be left to X’s general practitioner at E Medical Clinic and the parties will cooperate with the referral process.
That both parties will ensure any doctor attending on X is aware that the other parent is entitled to information about X, and input into decisions concerning X involving major long-term issues.
That each parent will notify the other parent of any major accident or illness which requires medical treatment for X, the treatment, prognosis and resolution as soon as practicable.
That each parent will notify the other parent in writing of any prescription medication prescribed or administered to X and the dosage, and that medication will travel with X between the parties.
That within seven (7) days of the date of this Order, the father will provide E Medical Clinic with copy of these Orders.
That except in circumstances of an emergency, and except as pursuant to Order 22 above neither party will take X to an appointment with a specialist medical or allied health professional if the other party has expressed opposition to that course in writing.
That within two (2) weeks of relocating to Queensland the mother will nominate in writing to the father, the specific general medical practice to which she will take X if and when that is needed at any time he is staying with her in Queensland and in the event X is seen by a doctor in Queensland the mother will cause the practice to send a copy of the doctor’s records of that attendance to E Medical Clinic.
That each parent will do all acts and things to ensure that X remains engaged in therapeutic support on an ongoing basis, noting at present X is supported by Ms H, psychologist; that engagement only to be ceased or changed by:
(a)agreement between the parties in writing; or
(b)at the reasonable recommendation of the treating professional.
That the parties will implement the reasonable recommendations of Ms H, or any subsequent professional supporting X.
That the parties will alternate facilitating attendance by X on Ms H or any subsequent professional supporting X.
That in the event any of the sessions with Ms H or any subsequent professional supporting for X are not covered by a mental health plan, the father will be responsible for payment of their fees.
The Court notes both parties seek and consent to each of the parties being provided with information from Ms H or any subsequent professional supporting X in respect of their treatment of X, his progress and current or past recommendation made by that person and it is ordered that each party provide a written authority to Ms H making this clear and indicating the authority extends to therapy within or without a mental health plan.
That the costs of any appointment(s) for the parents will be shared equally between them if it is a joint appointment or solely by the parent being asked to meet with Ms H if only one parent is seen.
Injunctions and Responsibilities
That unless agreed in writing by email, the parties are hereby restrained from taking X out of the State of Tasmania or retaining him out of the State of Tasmania during school term time.
That each parent will ensure that any professional or therapeutic practitioner is informed that the other parent is entitled to information about X, and input into decisions concerning X involving major long-term issues, and these Orders act as an authority for that purpose.
That each parent will notify the other parent as soon as practicable of any illness or health issue which renders that parent unable of caring for X.
The parents will use civil and respectful language to communicate with each other and their family and each party be and are hereby restrained from:
(a)denigrating the other parent or members of the other parent’s family to or in the presence of X, or allowing X to remain where any 3rd party does so; and
(b)discussing these proceedings with X, or with any other person in the presence of X, or allowing X to remain where any 3rd party does so, except to explain that faced with difficult choices the parents sought help to make a decision in X’s best interests.
Travel and Passports
For the purposes of interstate travel for school holiday or agreed time:
(a)Unless otherwise agreed in writing, until X reaches the age of 13, X will travel accompanied by a parent, pursuant to Order 39 (b).
(b)The parties are each entitled to send an agent of their choice as the accompanying adult for the travel interstate for changeovers.
Once X reaches the age of 13, each parent will ensure that X flies as an Unaccompanied Minor.
That changeovers will occur at [Brisbane/Sydney] airport
That apart from periods of travel overseas, the father will have possession of X’s passport in 2021, and each alternate year thereafter; the mother will have possession of X’s passport in 2020 and each alternate year thereafter.
That the parties will send the passport to the other party via registered post on the first business day of each year, or if they are overseas with X on that date, within seven (7) days of their return to Australia.
That with respect to the mother’s Ordered time pursuant Order 7, the mother will book the flights for X and the accompanying adult and be responsible for those costs on the flights to Queensland and the father will book the flights for X and the accompanying adult and be responsible for those costs on the flights back to Tasmania. OR
That with respect to the mother’s Ordered time pursuant Order 7, the mother will contribute $XXX.00 per week to the costs of travel for X to Queensland by transferring to the father by electronic funds transfer that sum each week and the father will book and pay for the costs of the flights for the accompanying adult and X between Hobart and [Brisbane/Sydney].
That the mother will be solely responsible for the costs of the flights for X and she to and from Brisbane/Sydney] to City A.
That the parties will each endeavor to book flights with as little traveling time between Tasmania and Queensland and as inexpensive a flight as possible.
Other Orders
That the Independent Children’s Lawyer will provide a copy of these Orders to Tasmania Police, E Medical Clinic, and a copy of the Orders and the family report released 16 January 2020 to Dr J and Ms H.
The appointment of the Independent Children's Lawyer will continue until seven (7) days after the Independent Children's Lawyer has explained the Orders to the child or it is confirmed an agreed person such as X’s psychologist jointly or alone has explained the Orders to X, and then the appointment is discharged.
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