Marano and Ogden
[2011] FMCAfam 809
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARANO & OGDEN | [2011] FMCAfam 809 |
| FAMILY LAW – Child – parents have never lived together, separation occurring prior to the child’s birth – “highly prescriptive” consent orders of 5 April 2005 varied by application by the Father – best interests of the child paramount – equal shared parental responsibility ordered. |
| Family Law Act 1975, ss.60[CA], 61DA(4) |
| Marano & Ogden (2010) FMCAfam 219 Rice & Asplund [1979] FLC 90-72 |
| Applicant: | MR MARANO |
| Respondent: | MS OGDEN |
| File Number: | SYC 4367 of 2009 |
| Judgment of: | Baumann FM |
| Hearing date: | 31 August 2010 |
| Date of Last Submission: | 31 August 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Staunton & Thompson |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility in respect of the child of the marriage namely X (“the child), born (omitted) 2004, and the parties shall consult each other and make genuine effort to come to a joint decision about any issue relating to major long-term decisions concerning the child; such major long-term decisions to include but not be limited to decisions relating to:
2.1The child’s education (both current and future);
2.2The child’s religious and cultural upbringing;
2.3The child’s health;
2.4The child’s name;
2.5Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
That each party individually have sole responsibility for making day to day decisions relating to the child while the child is in that party’s care.
That the child live with the Mother at all times other than as specified in Orders 5 and 6.
That the child live with the Father at all times as may be agreed in writing, but failing agreement, as follows:
5.1Each alternate weekend from the date of these orders during school terms from after school on Fridays when the Father shall collect the child from school to before school on Monday mornings when the Father shall deliver the child to school ; extended to before school Tuesday if Monday is a public holiday and such alternate weekends to recommence after each school holiday period on the first weekend of the following school term unless the Father had the care of the child for the second half of the previous school holiday period in which case it shall recommence on the second weekend of the following school term;
5.2Each alternate Wednesday night during school terms commencing from after school when the Father shall collect the child from school to the following Thursday morning when the Father shall deliver the child to school;
5.3For one half of every school holiday period being the first half of each school holiday period which commences during a year which is an odd number (“odd years”) and the second half of each holiday period which commences during the year which is an even number (“even years”). The school holiday period is defined as commencing on the last day of the school term from after school and finishing on the first school day of the following school term, inclusive of public holidays but excluding pupil free days. The transport and handover arrangements for school holidays shall be that the Father collect the child from school or deliver the child to school at the beginning or end of his school holiday periods as the case may be. In respect of the handovers in the middle of the school holiday periods, such handovers shall be at McDonalds Restaurant at the corner of (omitted) and (omitted) Road, (omitted) (“the (omitted) McDonald's Restaurant”) and shall take place at 6.00pm Sunday for the three mid-year school holiday periods or not otherwise at school and at 6.00pm on the middle day of the Christmas school holiday period, taking the total number of nights of the Christmas school holiday period and dividing by two and if an odd number the Father have one less night.
5.4The Father’s mid-week and weekend periods of care in 5.1 and 5.2 otherwise be suspended during school holiday periods;
5.5From 3.00pm Christmas Day 2010 until 5.00pm Boxing Day 2010 and each even numbered year thereafter;
5.6From 5.00pm Christmas Eve 2011 until 3.00pm Christmas Day 2011 and each odd-numbered year thereafter;
5.7For four hours on the child’s birthday from 1.00pm to 5.00pm in 2011 and every odd-numbered year thereafter and from 9.00am to 1.00pm in 2012 and every even-numbered year thereafter;
5.8In the event Father’s Day does not fall on a weekend the Father has the care of the child, such weekend shall be swapped with the next weekend so that he father has the care of the child on Father’s Day;
5.9Such alternative or additional periods of care as agreed between the parties.
Notwithstanding any other Orders herein contained the Mother shall spend time with the child as follows:
6.1In the event Mother's Day falls on a weekend when the child is to be in the Father's care this weekend is to be swapped with the next weekend so that the Father does not have the care of the child on Mother's Day;
6.2From 3.00pm Christmas Day 2009 until 5.00pm Boxing Day 2009 and each odd-numbered year thereafter;
6.3From 5.00pm Christmas Eve 2010 until 3.00pm Christmas Day 2010 and each even-numbered year thereafter;
6.4If the child birthday falls during a school holiday period when the child is in the Father's care from 9.00am to 1.00pm.
Handover arrangements for the child be that, except when the parents are collecting the child from school or delivering the child to school, that all handovers be at the (omitted) McDonald's Restaurant and both parties shall collect the child inside the said Restaurant and both parents are at liberty to arrange for a member of their family to transport the child for the purpose of these Orders if they are unable to do so personally.
That the Mother create and maintain a “contact book” and provide the contact book to the Father at the commencement of his time with the child and the Father is to return the contact book to the Mother at the cessation of his time with the child.
That each of the Mother and the Father record in the contact book points restricted to the child’s activities, her health and any medication she is taking including doses.
The child should not be asked to convey a “contact book” or “contact sheet” at handovers.
The parties shall each be solely responsible for deciding what activities the child attends during each parent’s periods of weekend or school holiday care and neither parent shall organise any activity involving the child during the other parent’s period of care, without the other parent’s consent. Both parties be restrained from attending activities the child is attending during the other parent’s periods of care, with the exception that the parties be at liberty to attend dance concerts, eisteddfods, prize giving ceremonies and other such major events involving the child, but such “major” events shall not include tennis lessons, birthday parties or church or church related activities.
Neither parent shall attend at the child’s school when the child is being collected by the other parent during that other parent’s period of care, except if the first parent has a reason to be at school other than to see the child, and if so, the parent who does not have the care of the child shall not interfere with the child being collected by the other parent.
The Father is to return to the Mother at the end of his time with the child all items of clothing, toys and any other items the child may take with her to the Father and the Mother is to do the same.
That if either party wishes to change arrangements for the child to spend a period of time with the other parent pursuant to these Orders, they shall notify the other parent and advise the reason for the change and seek to make arrangements for substitute time for the other parent to spend that time with the child and that parent shall not unreasonably withhold their consent for such a request for change.
That the Father shall have telephone communication with the child on Fridays at about 6.30pm when the child is not in the Father’s care for their forthcoming weekend and that such communication shall occur by the Father ringing the Mother’s mobile phone or the child’s mobile phone with such telephone calls do not last longer than 10 minutes. All calls are to be in private, unrecorded and uninterrupted.
That the Mother be permitted to travel overseas to the United Kingdom and Europe with the child for the whole of the July 2012 school holiday period in the first two weeks of Term Three in 2012 and on the basis that the Father have the care of the child for the whole of the first school holiday period at the end of Term One in 2012 and on the basis that the Father have the care of the child for the whole of the first school holiday period at the end of Term One in 2012.
That the Father be permitted to travel overseas to the United Kingdom, Europe or North America with the child for the whole of the July 2013 school holiday period in the first two weeks of Term Three in 2013 and on the basis that the Mother have the care of the child for the whole of the first school holiday period at the end of Term One in 2013.
Both parties shall be at liberty to travel overseas with the child during the school holiday periods the child is in their care and in addition such overseas trips may encompass the whole of one of the mid year school holiday period and may occur during odd years for the Father and during even years for the Mother provided that:
18.1the travelling party give the other party three months notice in writing of such overseas trip;
18.2for all overseas trips including as specified in orders 16 and 17, the travelling party provide to the other party one month prior to such trip an itinerary including accommodation and flight details and a telephone contact number for the child whilst overseas;
18.3for all overseas trips undertaken by the Father pursuant to orders 16 and 17 the Mother shall provide to the Father the child's passport one month prior to such overseas trips and the Father shall return the child's passport to the Mother within seven days of his return from such overseas trips.
That the Mother shall have sole responsibility for signing all documents necessary to have an Australian passport issued and when necessary renewed for the child and the Mother shall retain the child's passport until the Father plans an overseas trip pursuant to order 17 above.
Both parties be restrained from changing the child’s residence from the Sydney Metropolitan region without agreement in writing or court order.
Both parties be restrained from changing the child's residence from the Sydney Metropolitan Region without agreement in writing or court order.
Both parties notify the other in writing within seven (7) days of any change of that party’s phone numbers, both mobile and landline, or residential address.
Both parties be restrained from denigrating the other party or allowing anyone else to do so in the child’s presence and shall be civil, polite and cooperative in all their dealings with the other party.
Both parties keep the other informed as to the child's health, welfare and medical appointments any hospitalisation or emergency treatment and authorise the other party to make contact with any doctor or treating professional which the child is attending.
Neither parent shall physically discipline the child or allow a person with their authority to do so.
IT IS NOTED that publication of this judgment under the pseudonym Marano & Ogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4367 of 2009
| MR MARANO |
Applicant
And
| MS OGDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
X is the much loved only child of parents who separated when the Mother was still pregnant and who have been litigating in a Family Court for a good deal of her life. She is now aged seven. The prescriptive proposals of the parents, their continual conflict shaped by a lack of trust and respect present as the major challenge for these parents to have reached an agreement on future parenting arrangements.
The reasons which follow hopefully explain to these parents, who otherwise are intensely devoted to their child’s welfare and development, why certain orders are seen by the Court as in X’s best interests at this time.
History
For the purpose of context, a history is recorded which is stripped of some of the controversial events which are, as required when necessary, more particularly dealt with later in these reasons.
The parents married in 1998 and separated before the birth of their only child, X on (omitted) 2004. X is now aged seven years.
Consent orders, with the benefit of a family report by Dr R were made by the Family Court of Australia on 5 April 2005 (“the consent orders”). The orders did not last long before the Father felt it was necessary to seek a variation of the orders and commenced an application in this Court in November 2006, which were varied in relation to changeovers on 2 February 2007. The consent orders provided for X to commence overnight time with the Father in January 2008 (when she turned four years).
In February 2009, the Father married Ms K. The Father commenced contravention proceedings on 24 July 2009, however the application was withdrawn (with some significant costs penalties) on 5 November 2009, when the Father filed his application for variation seeking a number of alterations to the consent orders which were important to him. In December 2009, the Father and Ms K welcomed a baby boy Y into their life.
The Mother sought to have the application dismissed (applying the principles of Rice & Asplund [1979] FLC 90-725), however the Court determined the Father’s application should be permitted to proceed on 8 March 2010 (see Marano & Ogden (2010) FMCAfam 219).
On 15 April 2010, the Court appointed Dr R, psychiatrist (who had, it will be recalled, completed the first family report) as a Court expert at the cost of the parties. Interviews took place on 8 June 2010, with a report dated 5 July 2010 issuing. I deal with the report, and the evidence of Dr R (who was the subject of cross-examination), later in these reasons.
The matter proceeded to a final hearing on 31 August 2010. It is a matter of some regret that the Court has not been able to provide these reasons earlier.
I should acknowledge that, no doubt attributable to the efforts of Counsel for the applicant Father Mr Harper and the Respondent Mother Mr Richards, the parents were, prior to taking further evidence at the hearing, able to resolve by compromise a number of subtle yet previously contested orders. Helpfully, the solicitor for the Father provided a summary of the issues agreed and contested to the Court by email on 2 September 2010, which was formally filed on 9 September 2010. This document is referred to below.
Current orders
The “highly prescriptive” consent orders made 5 April 2005 are as follows:
1.That the child of the marriage, namely X (“the child), born (omitted) 2004, reside with the Mother.
2.That each party have sole responsibility for decisions relating to the day-to-day care, welfare and development of the child during such periods as the child is in that party’s care.
3.That the parties have joint responsibility for making decisions about the long-term care, welfare and development of the child.
4.(a) That the Mother create and maintain a “contact book” and include all relevant information for the child including, but not limited to what foodstuffs the child has consumed prior to contact, any medication the child is taking (including doses) and any other information relating to the child. The Mother is to provide the contact book to the Father at the commencement of contact.
(b)That the Father record in the “contact book” during contact all information pertaining to what food the child has eaten, if the child has had a sleep, the length of the sleep and all other relevant information.
(c)The contact book is to be returned to the Mother at the cessation of contact by the Father.
5.That the Father have contact with the child as follows:
(a)that from the date of the Orders until the child attains the age of three (3) years:
(i)One day each weekend being alternatively Saturday and Sunday from 11:00am to 4:00pm commencing on Sunday 10 April 2005.
(ii)Every Wednesday from 11:00am to 4:00pm.
(iii)For two (2) hours on the child’s birthday from 1:00pm to 3:00pm or as agreed between the parties.
(iv)From 3:00pm to 7:00pm on Christmas Day.
(v)For Father’s Day from 11:00am to 4:00pm in lieu of his other weekend contact.
(vi)From 11:00am to 4:00pm on the Father’s birthday in lieu of mid-week contact that week.
(vii)That during the Father’s contact period he is to ensure the following:
a) That X has an appropriate place to sleep;
b) That he ensure that X have an appropriate sleep as advised by the Mother.
(viii)That to facilitate contact, the Father collect and return X to and from the Mother’s residence before and after contact except that if the Father changes his residence, the parties have handovers and collections as agreed or failing agreement, at a half way point at a McDonalds or similar restaurant or institution.
(ix)That the Father is to ensure that all accompanying persons do not alight from the motor vehicle at contact changeovers without invitation from the Mother.
(x)That the Mother be restrained from talking to any accompanying persons without their invitation.
(b)That from the time the child attains the age of three (3) years:
(i)Contact as per (a) except contact on Wednesday commence at 10:00am and contact on Saturday or Sunday commence at 10:00am.
(ii)Contact on Father’s Day be from 9:00am to 5:00pm, and Christmas Day 2007 from 3:00pm to 7:00pm.
(iii)Telephone contact with the child every Monday and Thursday by the Father calling the child by mobile at 5:00pm for a duration of no longer than 10 minutes.
(c)That from the time the child attains the age of four (4) years:
(i)Contact as per (b) except weekend contact be each alternate weekend from Saturday at 10:00am to Sunday at 4:30pm.
(ii)For 4 hours on her birthday from 1:00pm to 5:00pm or as agreed between the parties.
(iii)Christmas Day from 9:00am to 1:00pm.
(iv)One extra night at the beginning or end of the Father’s weekend during each of the gazetted school holiday periods, the first being in the July holiday, such extra nights as nominated by the Father.
(d)That from the time the child attains the age of five (5) years and thereafter:
(i)Each alternate weekend commencing at 9:00am Saturday to Sunday at 5:00pm; such weekends to commence Fridays at 5:00pm once the child attains the age of six (6).
(ii)Each Wednesday from after school when the Father shall collect her to 7:00pm when the Father shall deliver her to the Mother’s residence.
(iii)For one half of every gazetted school holiday period, as agreed or failing agreement being for the first half of each school holiday period which commences during a year which is an odd number and the second half of each school holiday period which commences during a year which is an even number; the school holiday period to commence on the first day after the last day of school and conclude on the day before school resumed and the Father’s weekend and mid-week contact be suspended during school holiday periods.
(iv)From 5:00pm on Christmas Eve 2009 until 3:00pm Christmas Day and continuing each alternate year.
(v)From 3:00pm Christmas day 2010 until 5:00pm Boxing Day and continuing each alternate year.
(vi)For Four (4) hours on the child’s birthday from 9:00am to 1:00pm in 2009 and alternate years thereafter and from 1:00pm to 5:00pm in 2010 and alternate years thereafter.
(vii)The Father shall not have the child on the Sunday that is Mother’s Day but in substitution the Father shall have the child with him on the following Sunday from 9:00am to 5:00pm.
(viii)The parties shall arrange weekends so that Father shall have the child on the Sunday that includes Father’s Day.
(ix)Transport for contact arrangements as specified in 5(viii).
(d)Such further time as the parties mutually agree.
6.The Father is to take the child to any school, sporting events and other extra curricular activities and shall transport the child to and from these events during contact periods and the parties shall notify each other of such activities and shall be at liberty to attend all parent-teacher nights and school events if it is appropriate for parents to attend and shall ensure each party receives all school reports, newsletters etc.
7.The Father is to return to the Mother at the end of contact all items of clothing, toys and any other items the child may take with her during contact and if the Father subsequently purchases and establishes his own clothing pool, uniforms etc, the Mother shall return such items to the Father.
8.The Father shall have contact on his birthday on a weekend day from 9:00am to 5:00pm and between 4:00pm and 7:00pm on a weekday.
9.The Father will not have the child on the day that is the Mother’s birthday.
10.The Mother have the sole responsibility for giving authority and making arrangements for the issuing of the child’s passport but she shall not unreasonably withhold the child’s passport if the Father wishes to take the child on a reasonable holiday overseas.
11.Both parties be restrained from changing the child’s residence from the Sydney Metropolitan region without agreement in writing or court order.
12.Both parties notify the other in writing within 7 days of any change of that party’s phone numbers, both mobile and landline, or residential address.
13.Both parties be restrained from denigrating the other party or allowing anyone else to do so in the child’s presence and shall be civil, polite and cooperative in all their dealings with the other party.
14.Both parties keep the other informed as to the child’s health, welfare and medical appointments and any hospitalisation or emergency treatment and authorise the other party to make contact with any doctor or treating professional which the child is attending to discuss the child’s welfare.
Clearly, the important relevant orders provide at order 5(d) that from January 2010 (when she had turned six years), X would spend time with her Father:
-each alternate weekend from 5.00pm Friday to 5.00pm Sunday;
-each Wednesday from after school until 7.00pm;
-half of every gazetted school holiday period;
-a number of special days (see order 5(d)(iv) to (viii)) and “such further time as the parties mutually agree”.
It can be immediately understood that the regime precisely set out sought to meet the anticipated developmental needs and usual milestones for X – remembering that these parents (who had never lived together after X’s birth), reached these earlier consent orders when the child was but 15 months of age. Longevity of the orders was always going to be a challenge for these parents who communicated ineffectively.
Principles
In making a parenting order, the best interests of the child are the paramount consideration [s.60CA]. Overarching that are several stated objects and underlying principles. In this case it may be useful to summarise them. The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s.60B(1)]. The principles underlying these objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s.60B(2)].
Issues in dispute (including issues agreed)
As earlier recorded in these reasons, a helpful consolidation (accurately it seems to me) was compiled by the Father’s solicitor and sent to the Court (with the areas of agreement in bold and the areas in dispute not). It follows:-
| FATHER | MOTHER |
| 1. That all previous parenting orders be discharged. | 1. That all previous parenting orders be discharged. |
| 2. That the parties have equal shared parental responsibility in respect of the the child of the marriage namely X (“the child), born (omitted) 2004, and the parties shall consult each other and make genuine effort to come to a joint decision about any issue relating to major long-term decisions concerning the child; such major long-term decisions to include but not be limited to decisions relating to: 2.1 The child’s education (both current and future); 2.2 The child’s religious and cultural upbringing; 2.3 The child’s health; 2.4 The child’s name; 2.5 Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent . | 2. That the Mother have sole parental responsibility for the child of the marriage namely X (‘the child”) born (omitted) 2004. |
| 3. That each party individually have sole responsibility for making day to day decisions relating to the child while the child is in that party’s care. | |
| 4. That the child live with the Mother at all times other than as specified in Orders 5 and 6. 5. That the child live with the Father as follows: 5.1 each alternate weekend from the date of these orders during school terms from after school on Fridays when the father shall collect the child from school to before school on Monday mornings when the father shall deliver the child to school; such alternate weekends to be extended by the additional day if there is a public holiday at the beginning or end of the Father’s weekend, (so that his time commence on either Thursday after school or end on a Tuesday morning before school,) and such alternate weekends to recommence after the each school holiday period on the first weekend of the following school term unless the Father had the care of the child for the second half of the previous school holiday period in which case it shall recommence on the second weekend of the following school term. 5.2 each Wednesday night during school terms commencing from after school when the Father shall collect the child from school to the following Thursday morning at when the Father shall deliver the child to school; 5.3 for one half of every school holiday period being the first half of each school holiday period which commences during a year which is an odd number (“odd years”) and the second half of each holiday period which commences during the year which is an even number (“even years”). The school holiday period is defined as commencing on the last day of the school term from after school and finishing on the first school day of the following school term, inclusive of public holidays and pupil free days. The transport and handover arrangements for school holidays shall be that the Father collect the child from school or deliver the child to school at the beginning or end of his school holiday periods as the case may be. In respect of the handovers in the middle of the school holiday periods, such handovers shall be at McDonalds Restaurant at the corner of (omitted) and (omitted), (omitted) (“the (omitted) McDonald's Restaurant”) and shall take place at 6.00pm Sunday for the three mid-year school holiday periods and at 6.00pm on the middle day of the Christmas school holiday period, taking the total number of nights of the Christmas school holiday period and dividing by two and if an odd number the father have the additional night. | 3. That the child live with the Mother at all times other than as specified in Order 4 below. 4. That the child spend time with the Father as follows: 4.1 during term time each alternate weekend from 5.00pm Friday (the father is to pick up the child from (omitted) Church, corner (omitted) and (omitted)) to 5.00pm Sunday (the Father is to return the child back to the Mother at (omitted) McDonald's’ corner (omitted) and (omitted) Road, (omitted); 4.2 from now until the end of Term 3 2010, weekend contact occur on the following rostered weekends: 21/22 August 4.3 from Term 4 2010, weekend contact to commence at the end of Week 2 of the school term at the end of each even-numbered week of the school term thereafter from 5.00 PM to Friday (pick up from (omitted) Church, corner (omitted) and (omitted)) to 5.00 PM Sunday (returned back to the Mother at (omitted) McDonald's, (omitted); 4.4 subject to Orders below, for one half of every school holiday period for the first half of each school holiday period in odd-numbered years and the second half in even-numbered years. For the purposes of this Order the school holiday period is to commence at 9.00am on the Saturday following the last day of the school term and conclude at 5.00pm on the Sunday prior to the first day of the school term. Changeover in the middle of the school holiday period is to occur at 5.00pm on the middle day of each school holiday period at (omitted) McDonald's. |
| 5.5 The Father’s mid-week and weekend periods of care in 5.1 and 5.2 and 5.3 otherwise be suspended during school holiday periods; 5.6 From 3.00pm Christmas Day 2010 until 5.00pm Boxing Day 2010 and each even numbered year thereafter; 5.7 From 5.00pm Christmas Eve 2011 until 3.00pm Christmas Day 2011 and each odd-numbered year there after; 5.8 If the child birthday falls during a school holiday period when the child is in the Mother's care from | 4.5 the Father's weekend periods are set out in Order 6.1 above shall be suspended during school holiday periods; 4.6 from 3.00pm Christmas Day 2010 until 5.00pm Boxing Day 2010 and each even-numbered years thereafter; 4.7 from 5.00pm Christmas Eve 2011 until 3 .00pm Christmas Day 2011 and each odd-numbered years thereafter; 4.8 for four hours on the child’s birthday from 1.00pmto 5.00pm in 2011 and every odd-numbered year thereafter and from 9.00am to 1.00pm and 2012 every even-numbered year thereafter; |
| 5.9 In the event Father’s Day does not fall on a weekend the Father has the care of the child, such weekend shall be swapped with the next weekend so that he father has the care of the child on Father’s Day; | 4.9 in the event Father's Day does not fall on a weekend the father has the care of the child, such weekend shall be swapped the next weekend so that the Father has the care of the child on Father's Day; 4.10 on the father's birthday if his birthday falls on a weeknight from 4.00pm to 7.00pm and in the event the father's birthday falls on a weekend he does not have the care of the child this weekend is to be swapped with next weekend; |
| 5.10 Such alternative or additional periods of care which the parties may at any time agree in writing, taking into account the child’s wishes and needs as well as the wishes and needs of the other party, but that subject to such agreement in writing, neither party shall unilaterally change these orders and arrangements and the parties shall abide by these orders. | 4.11 such alternative or additional periods of care as agreed between the parties. |
| 6. Notwithstanding any other Orders herein contained the Mother shall spend time with the child as follows: 6.1 In the event Mother’s Day does not fall on a weekend the mother has the care of the child, such weekend shall be swapped with the next weekend so that the Mother has the care of the child on Mother’s Day. | 5. Notwithstanding any other Orders contained hearing the mother shall spend time with the child as follows: 5.1 in the event Mother's Day falls on a weekend when the child is to be in the Father's care this weekend is to be swapped with the next weekend so that the Father does not have the care of the child on Mother's Day; 5.2 in the event the Mother's birthday falls on a weekend when the child is in the Father's care this weekend is to be swapped for the next weekend. In the event the mother's birthday falls on a weekday when the child is in the father's care from 4.00pm to 7.00pm. In the event the Mother's birthday falls during a school holiday period from 5.00pm on the day prior to the Mother's birthday to 5.00pm on the day after the Mother's birthday; 5.3 for one half of every school holiday period as agreed or failing agreement for the second half of each school holiday period in odd-numbered years. |
| 6.2 From 3.00pm Christmas Day 2011 until 5.00pm Boxing Day 2010 and odd numbered years thereafter; 6.3 From 5.00pm Christmas Eve 2010 until 3.00pm Christmas Day 2010 and each even-numbered years thereafter; 6.4 If the child’s birthday falls during a school holiday period when the child is in the Father’s care from 9am to 1pm. | 5.4 from 3.00pmChristmas Day 2009 until 5.00pm Boxing Day 2009 and each odd-numbered year thereafter; 5.5 from 5.00pm Christmas Eve 2010 until 3.00pm Christmas Day 2010 and each even-numbered year thereafter; 5.6 if the child birthday falls during a school holiday period when the child is in the Father's care from |
| 7. In the event the child is sick and unable to attend a period of care with the Father on a Wednesday pursuant to Order 5.2, then the Father shall have the Thursday period overnight in substitution. if the child attends school on the Thursday. | |
| 8. Handover arrangements for the child be that, except when the parents are collecting the child from school or delivering the child to school, that all handovers be at the (omitted) McDonald's Restaurant and both parties shall collect the child inside the said Restaurant and both parents are at liberty to arrange for a member of their family to transport the child for the purpose of these Orders if they are unable to do so personally. | 6. That for the purposes of changeover other than when the Father collects the child from school or an activity, all changeovers are to occur at McDonald's Restaurant (omitted), corner of (omitted) and (omitted) Road (omitted). |
| 9. That the parties communicate by text message with each other, or by email if the mother is willing to provide an email address for the father to communicate with her, and that all communications be limited to issues relating to X and her welfare, including details of any health problems and medication the child is taking and information relating to the child’s activities school events, sporting events, dance concerts and other activities which the other parent may not be aware of . The child should not be asked to convey a “contact book” or “contact sheet” at handovers. | 7. That the Mother create and maintain a “contact book” and provide the who contact book to the father at the commencement of his time with the child and the Father is to return the contact book to the mother at the cessation of his time with the child. 8. That each of the Mother and the father record in the contact book points restricted to the child’s activities, her health and any medication she is taking including doses. |
| 10. The parties shall each be solely responsible for deciding what activities the child attends during each parent’s periods of care and neither parent shall organise any activity involving the child during the other parent’s period of care other, without the other parent’s consent. Both parties be restrained from attending activities the child is attending during the other parent’s periods of care, with the exception that the parties be at liberty to attend dance concerts, eisteddfods, prize giving ceremonies and other such major events involving the child, but such “major” events shall not include tennis lessons, birthday parties or church or church related activities 11. Neither parent shall attend at the child’s school when the child is being collected by the other parent during that other parent’s period of care, except if the first parent has a reason to be at school other than to see the child, and if so, the parent who does not have the care of the child shall not interfere with child being collected by the other parent. | 9. That the Father is to take the child to any school, sporting or extracurricular activity and shall transport the child to and from these events during the time he spent with her. These include that shall not be limited to:(omitted) at (omitted) Church (Sundays 9.30-11am), birthday parties, sporting classes, Kids Band at (omitted) Church (Fridays of the school term 3.30-5.00pm). Both parties are at liberty to attend any performances or competitions in which the child is participating while the child is not in their care. For all other activities in which the child is involved, neither party will attend when the child is not in their care. 10. The Father is to return to the mother at the end of his time with the child all items of clothing, toys and any other items the child may take with her to the Father and the mother is to do the same. 11. That if either party wishes to change arrangements for the child to spend a period of time with the other parent pursuant to these Orders, they shall notify the other parent and advised the reason for the change and seek to make arrangements for a substitute time for the other parent to spend that the child on the parent shall not unreasonably withhold their consent for such request for change. |
| 12. That the Father shall have telephone communication with the child on Fridays at about 6.30pm when the child is not in the Father’s care for their forthcoming weekend and that such communication shall occur by the Father ringing the Mother’s mobile phone or child’s mobile phone issue has one in such telephone calls not last longer than 10 minutes. | 12. That the Father shall have telephone communication with the child on Fridays when the child is not in the father’s care for the forthcoming weekend and that such communication shall occur by the father ringing the Mother’s mobile phone or the child mobile phone, if she has one, and such telephone calls not last longer than 10 minutes. |
| 13. That the Mother be permitted to travel overseas to the United Kingdom and Europe with the child for the whole of the July 2012 school holiday period in the first two weeks of Term 3 2012 and on the basis that the Father have the care of the child for the whole of the first school holiday period at the end of Term one in 2012. | 13. That the Mother be permitted to travel overseas to the United Kingdom and Europe with the child for the whole of the July 2012 school holiday period in the first two weeks of Term 3 2012. |
| 14. That the Father be permitted to travel overseas to the United Kingdom, Europe or North America with the child for the whole of the July 2013 school holiday period in the first two weeks of Term 3 2013 and on the basis that the mother have the care of the child for the whole of the first school holiday period at the end of Term one in 2013. | 14. That one month prior to the overseas trip provided for in order 13 above, the Mother provide to the Father on an itinerary of the overseas trip including accommodation and flight details on the telephone contact number for the child while she is overseas. |
| 15. Both parties shall be at liberty to travel overseas with the child during the school holiday periods the child is in their care and in addition such overseas trips may encompass the whole of one the mid year school holiday period and may occur during odd years for the Father and during even years for the Mother provided that: 15.1 the travelling party give the other party three months notice in writing of such overseas trip; 15.2 for all overseas trips including as specified in orders 13 and 14, the travelling party provide to the other party one month prior to such trip an itinerary including accommodation and flight details and a telephone contact number for the child whilst overseas; 15.3 for all overseas trips undertaken by the father pursuant to orders 14 and 15 the mother shall provide to the Father the child's passport one month prior to such overseas trips and the father shall return the child's passport to the mother within seven days of his return from such overseas trips. | 15. That other than as provided in order 13 and 14 above each party be at liberty to travel overseas with the child during the school holiday periods the child is in their care and in addition such overseas trips may encompass the whole of one of its use school holiday periods provided that: 15.1 the travelling party give the other party three months notice in writing of such overseas trip; 15.2 the travelling party provide to the other party one month prior to such trip and itinerary including accommodation and flight details on the telephone contact number for the child whilst overseas; 15.3 that the Mother shall provide to the father the child’s passport one month prior to such overseas trips and the Father shall return the child passport to the Mother within seven days of his return from such overseas trips. |
| 16. That the Mother shall have sole responsibility for signing all documents necessary to have an Australian passport issued and when necessary renewed for the child and the Mother shall retain the child's passport until the Father plans an overseas trip pursuant to order 15 above | 16. That the Mother shall have sole responsibility for signing all documents necessary to have an Australian passport issued and when necessary renewed for the child and the Mother shall retain the child's passport until the Father plans an overseas trip pursuant to order 15 above |
| 17. Both parties be restrained from changing the child’s residence from the Sydney Metropolitan region without agreement in writing or court order. | 17. Both parties be restrained from changing the child's residence from the Sydney Metropolitan Region without agreement in writing or court order. |
| 18. Both parties notify the other in writing within 7 days of any change of that party’s phone numbers, both mobile and landline, or residential address. | 18. Both parties notify the other in writing within seven days of any change to the party’s phone number mobile and landline or residential address. |
| 19. Both parties be restrained from denigrating the other party or any member of the other party’s family or allowing anyone else to do so in the child’s presence or hearing and both parties shall be civil, polite and cooperative in all their dealings with the other party | 19. Both parties be restrained from denigrating the other party or allowing anyone else to do so in the child's presence and shall be civil, polite and cooperative in all their dealings with the other party |
| 20. Both parties keep the other informed as to the child’s health, welfare and medical appointments and any hospitalisation or emergency treatment and authorise the other party to make contact with any doctor or treating professional which the child is attending. | 20. Both parties keep the other informed as to the child's health, welfare and medical appointments any hospitalisation or emergency treatment and authorise the other party to make contact with any doctor or treating professional which the child is attending. |
Acknowledging that the Court is not bound strictly by the proposals of the parents, the Court identifies in summary form the following issues requiring its determination, namely:-
a)Parental responsibility;
b)Whether the Father’s time each alternate weekend, should extend to before school on Monday;
c)Whether Wednesday night shall continue and if so, as the Father proposes, it be extended until before school Thursday.
d)Whether, if the child is unable to attend Wednesday time, Thursday can be substituted.
e)Communication by text or “contact book”;
f)How extra curricular activities are supported;
g)Overseas travel.
Perhaps disappointingly, both parents (or perhaps their lawyers) have a preferred style of order – and the orders ultimately made by the Court, I suspect, is a less descriptive style than either parent proposed.
Ultimately, rather than trying to anticipate every likely scenario in this low trust environment, the Court has formed the view that to do so is more likely to promote “parenting” by order rather than the preferred “parenting by intuition”, guided by a clear and hopefully unambiguous simpler form of words. Only time will tell whether these parents are able to elevate their thinking and level of trust in X’s best interests to find solutions to future problems rather than to use the order as a form of blunt instrument to assert “control” and exercise power.
Parent’s evidence
At the outset it must be recorded that X is blessed with two very capable, attentive and loving parents who do not individually lack capacity or poor parental attitude – save for their current inability to consistently communicate effectively. Whilst at the time of the consent orders, the child’s age made the parents different styles and focus less of an issue – as she gets older she is likely to be more aware of the disharmony between her parents, as she is now demonstrating. Her emotional development could be compounded if she is, almost by default, thrown into the role of communicator and peacemaker.
These parents are quite different people – who not surprisingly parent differently.
Most of the incidents, dealt with at some length in each parent’s material, have their foundation in the poor communication but also the rigid interpretation of order 6 made 5 April 2005 (when the chid was very young).
On its face, the Father is obliged “to take the child to any school, sporting events and other extra-curricular activities” … “during contact periods”. It might have been reasonably anticipated that the parents would discuss the activities to ensure there was a suitable balance between structured activities and recreational time. The Mother on the evidence, has been keen for the child to be fully stimulated and at the hearing this infant was said to have the following program:-
Monday – after school swimming
Tuesday – dance
Wednesday morning – piano
Thursday – dance
Friday – school public speaking and church band practice
Saturday – group tennis lessons
Sunday – (omitted) ((omitted) Church)
She has piano practice most mornings and was hoping to be a member of the Junior School Band – which practices Monday and Thursday. X, an obviously very talented little girl, has been dancing since she was 2 years of age and has been competing in Eisteddfods since she was 5. The child and the Mother have a strong common interest in Eisteddfods. The Father supports his daughter competing – as clearly he is aware of his daughter’s devotion to the activity. Although I heard some evidence about the difficulties encountered in preparing her on the day for a performance – my impression was that the Mother felt it was as much “her” activity as the child’s. I accept that the Father’s wife, Ms K, would be just as capable of dressing and preparing X, but it seems that X probably felt more comfortable with her Mother doing so.
Regrettably, some of the evidence given by the Mother about reasons for not being on time to handovers showed a lack of courtesy and respect towards the Father – however, his reaction, on some occasions, of keeping the child longer did him little credit. Overall, this parental “silliness” merely aggravated each of them.
It is not possible on the evidence, to really determine what happened at T’s birthday party on [date omitted] 2008. The Father alleges the Mother deliberately used her “elbow” to “shove” his wife out of the way. The Mother says it was not like that. I am prepared to accept, regrettably for X, the parents coming into close contact with each other makes each of them uncomfortable. Such a sense also arose from the bowling alleged incident, although I am still somewhat mystified why the Mother was there.
This little girl feels enormous loyalty to each of her parents, and the episode at the tennis lessons reveals how unnaturally tense she becomes trying to please everyone. It is not her job to do so and frankly, by the end of all the evidence in their affidavits being considered (and the limited cross-examination being undertaken), I was left with the strong impression that both of these parents are capable of provoking the other parent, and each has at times, elected to do so. Such churlish behaviour is inappropriate and otherwise outside the boundaries of good parenting which both the Mother and Father are capable of delivering in the best interests of X.
Court expert
Dr R has, in this case, had the benefit of a longitudinal study of the parents. His first report was completed when the child was a baby. For the purpose of this report, a period of over 5 years had elapsed.
It is not necessary to record verbatim portions of the report and cross-examination save to note the following:-
a)As predicted, if the Father had an increased role in the parenting of X there would be an “increased risk of conflict between the parents”. The reasons for so anticipating, were set out in the summary under the heading “Review of Documents”, and I accept the foundation arising from the parents’ perceptions of their relationship and how it broke down.
b)The Mother, as a result of comments she says the Father made to her, that the Father “wants 50/50 custody”, in her view was “unstable mentally and had bipolar or at least depression as there is anxiety in his family”; handovers at McDonalds was “reasonably manageable”.
c)In the Father’s interview with Dr R, he described the Mother as “full of hate and bitterness” and, like the Mother says of him, inflexible. Tennis lessons and birthday parties “continue to be a problem” according to the Father.
d)The observed interaction between the child, the Mother and the Mother’s partner Mr A was warm and happy. The Mother’s friend does not live with the Mother, but visits often. He indicated he did not “have a grip of what’s best for X”; and expressed that he was “horrified” that the Father left the Mother during the pregnancy and is clearly supportive of the Mother. This is hardly surprising.
e)
X appeared to the report writer to be “very happy to see her father” and they were “warm and relaxed with each other”.
Ms K joined the interaction and X “appeared pleased”.
f)The snapshot of the parents together with the report writer is best understood by repeating what Dr R recorded in his report, namely:-
“Ms K and Mr Marano were seen together. Ms Ogden was extremely tense. Mr Marano looked business-like with his documents. Ms Ogden didn’t want to say anything initially. Mr Marano said that they had seen Ms L to try and make some headway in agreements; however, this was unsuccessful. Ms Ogden said that she didn’t believe that Ms L was helpful.
Mr Marano said they agreed that they wouldn’t cross over their times when one parent had care of the child. Ms Ogden said “I didn’t agree to that. She wants both parents at tennis lessons. He could attend if he wanted to. It’s a good thing for both parents to be there”. Mr Marano said he didn’t think it was a good idea. Ms Ogden said that X would be devastated if she didn’t attend her lessons. Mr Marano believed that Ms Ogden had agreed previously for both parents not to attend regular events. Ms Ogden then cited examples of eisteddfods where she needed to change her clothes and it was essential for the mother to be there. Mr Marano said that he had made requests to get information about certain events. He never received a response. Ms Ogden said that the concerts were advertised through the school and that the information is available.”
The report writer moved to his “Opinion” and recommended (shaped by the cross-examination) that:-
a)Handovers, if they occurred at school, “could reduce the potential exposure to conflict for X”.
b)A “shared arrangement” would not be the best outcome.
c)The Father’s time occur fortnightly from Fridays after school to Mondays at school; half of the school holidays (including Christmas school holidays and special days for the child.)
d)In recommending that Wednesday contact cease, the report writer opined that:-
“I believe that there is a high risk that the midweek contact is a potential point for conflict between the parents. It is better for there not to be potential points of conflict.”
e)The Mother wishes to take control and that sole parental responsibility to the Mother could be construed (by the Father) “in reality and symbolism” as the Father being “cut out of the child’s life”.
f)The Mother regards each of the activities she has arranged for X as important and the Mother gets anxious and would be upset about the child missing out on things. However, Dr R did not see the Mother’s anxiety as an “insurmountable issue”. The Mother has been able to support the child’s relationship with the Father, but sees every adjustment where the Father gets extra time as the “thin edge of the wedge”.
I agree generally with the evidence given by Dr R and his observations of the parents was similar to their presentation in the witness box. I do not, on balance, support the total abolition of Wednesday time – which I note Dr R conceded in cross-examination was ultimately finely balanced and a matter for the Court.
Finally, again to provide some context to the world that X is required to negotiate between these highly competitive parents, I adopt the opinion of Dr R at paragraph 9 of his recommendations that:-
“9. It is worth noting also that the Father has significant obsessional personality traits. This is both a positive as well as can be potentially negative. Both parents rival each other with their obsessional and fastidious natures. Whilst this has contributed to their respective career successes this has also resulted in stubborn stand-offs between them”. (my emphasis)
Discussion of primary and additional consideration
I rely upon but do not repeat the findings and observations set out above. Many of the relevant factors have already been discussed.
X has a meaningful relationship with both parents and each of them fairly acknowledges the importance and benefit to her of retaining those relationships.
Thankfully, X is not exposed to harm or neglect in either of the households with the most significant, and real risk being future emotional harm arising from the conflict generated and played out by the parents. In this regard, it is indeed somewhat sad that X cannot enjoy the experience of seeing her parents communicate respectfully and amicably. Instead she has demonstrated a heightened anxiety when they come close or are at the same function or event. As a result, the benefits of the child performing or competing in an activity with the benefit of both parents compatibly supporting her has too rarely occurred to date. Whilst I agree with the Mother that the child probably would like both parents to be present, this natural desire is inhibited by the tensions created by the adults. She deserves to be protected from it and the orders I propose to make seeks to do that for her.
Although both parents, in their affidavits, detail some of the comments X has expressed to them, at her age and level of maturity, her aim to please has, in my view, probably caused her to tell each of the parents what she perceives they may wish to hear. I would also not discount the likelihood that these proceedings have in a general way been discussed with the child – not in a direct attempt to influence or coach the child, but rather the parents’ subtle influence on her views intruded. I cannot, as a result apply any determinative weight to the views expressed by the child.
Clearly the primary relationships for X are those with her parents – who she loves dearly. The history of care compels a finding that her primary attachment is still with her Mother, but the long and consistent regime of care and interaction between the Father and X has continued to strengthen that bond. As a result, I agree with Dr R, that the child would cope, for example, with having three weeks of the end of year school holidays with the Father without suffering separation anxiety from the Mother. I am satisfied that the child has a warm relationship with Ms K and also, perhaps to a slightly less degree, with the Mother’s friend Mr A.
Clearly, her relationship with her sibling, baby Y, is a relationship of importance now and likely to become increasingly important to her. Y’s development will be, I predict, a continued joy to this little girl who no doubt fusses over him as most “big sisters” tend to do. It is a consideration in determining the regime of time that X spends with the Father, that by so doing she gets increased opportunities to spend time with her little brother.
Although some of the events detailed in the affidavits might suggest the parents have some difficulty facilitating and encouraging the other parent’s relationships, I think that is not really the position. The poor communication is a contributor. More likely, in my view, is the intense focus on their own unique relationship. In short, I do not think they fail to understand the importance to X of the other parent in her life – they just, somewhat obsessionally, crave a more exclusive relationship rather than an inclusive one.
I believe that the variations I propose to order will have a positive effect for the child. Changeovers generally at school, on a Friday and a Monday (extended to Tuesday if Monday is a public holiday), allows the Father a more natural interaction with the child’s teachers, peers and school environment. It also will require him to prepare the child for school (lunches, uniforms, completing homework etc), which is an integral part of being a parent. I do not ignore that the Father’s wife is a (occupation omitted), which will also assist.
The same benefits accrue in my view by incorporating a Wednesday overnight in each alternate week. I do not feel that a gap of up to eleven days not spending time with the Father (and her brother) is ideal. To the extent that the child might miss a morning piano exercise or two does not persuade me to discontinue every Wednesday.
Changeovers at school provides less opportunity for conflict between the parents to occur. I see no reason, on the evidence why the child needs to be “prepared” by the Mother on a Friday afternoon before beginning time with the Father. I would have no concerns if Ms K collected or delivered the child to school if the Father was working, although my impressions are that the Father will try and be available.
Apart from the issues already dealt with, no other pressing comments about parental capacity, attitude or the practicalities of time need to be explored. It continues to be a mystery to the Court why, when as in this case, communication is ineffective, parents who otherwise seem to function well with others cannot do more to improve the communication for their child. It is generally the simplest thing to achieve by modification of their own behaviour, which is in their control. Counselling often assists. I note the Mother has had such counselling. It is not clear whether the Father has sought guidance on his contribution to this communication problem, and strategies for the future. There are a number of community based courses and educational opportunities available. The first issue always remains, that each parent must be able to honestly reflect on their contribution to the conflict and how they can do better. In this regard I did read the numerous pages of the communication book. It revealed at times somewhat formal entries. In the over three year period covered by the notes, there are around 95 sentences about the child’s health – although some are as simple as “X has a cold”. I intend to continue the use of a communication book, but would encourage in the future text, email and hopefully oral interactions.
Fortunately for X, domestic violence issues do not arise for her family.
Although it is to be hoped that the orders I make will mean these parties are less likely to engage in future litigation, the past history is not a comfort. If the Father has no other long term destination in mind other than equal time, then the orders I make will not satisfy him forever. If the Mother continues to feel threatened or intimated by X’s glowing relationship with the Father and his new family unit, then she may in the future aim to look for opportunities to vary the order. The developmental changes which have occurred for X from birth to now are the most significant she is likely to face. As she approaches high school and adolescence, new challenges will arise. These parents, if they work together rather than separately, are equipped to create a supportive and caring environment without parental conflict. If they chose to do so a return to a Court is less likely. If they cannot do so, it seems inevitable they will seek Court intervention in the future.
Conclusions on disputed issues
The first question identified at paragraph 14(a) of these reasons, is preceded by the obligation for the Court to consider whether the statutory presumption of equal shared responsibility applies. It must be applied unless there are reasonable grounds that establish abuse or domestic violence and is rebutted if it would be contrary to the best interests of the child (see s.61DA(4)).
On the evidence, I am satisfied that the presumption does apply, and, in any event, I would order that the parents have equal shared parental responsibility. I am confident, on the balance, that if a major decision about the health, religion or schooling arise in the future, each parent would have a valuable perspective on that issue and a better decision is likely with a need to consult BEFORE the decision is made. If the Mother, as she seeks, was to have sole parental responsibility, there is a risk of no consultation occurring and no input from the Father being sought – he would potentially be marginalised. This is contrary, in this case, to X’s best interests.
For the reasons set out above, I regard it in the best interests of X to spend time from after school Friday to before school Monday, extending to before school Tuesday if the Monday is a public holiday. In reality, in any given year (with an alternate weekend arrangement), public holidays get shared around over the life of the child. I would not extend the public holiday provision to pupil free days. These usually occur at the beginning of each term, and I think X will benefit from being in the home she primarily resides before the school term commences.
To avoid X having a gap of up to eleven nights without spending time with her father (and for that matter, her brother), I order that the Father spend time each alternate Wednesday from after school to before school Thursday.
If the child is unable to attend the Wednesday because of sickness (not an extra-curricular event which in the absence of agreement would not be a sufficiently good reason), then the Father would lose that opportunity. To substitute it for the Thursday, as the Father proposes, is more likely to disrupt the routine established by my order. Furthermore, whilst parents often are anxious to ensure “make-up” time is exactly counted and achieved, in the life of this child, the opportunity mid-week, if it does not occur because she is unwell, will not be a major concern for her. It would be inferred of course, that if she were not available for a Wednesday night, then she would not have gone to school. Children get colds. I acknowledge X is an asthmatic, but I am satisfied the Father is more than capable of meeting her needs if she has an asthma attack – as no doubt can the Mother. If she is well enough to go to school, I would expect she would be well enough to go to the Father.
The use of a communication book will continue.
The issues that seem to have caused most concern between the parents arising from the orders made in April 2005 is order 6 which gave no flexibility in the Father having any discretion whether to take X to school, sporting events and other extra curricular activities. The Mother seemingly controlled the time the Father had to some degree with X by the number and frequency of events.
Of course, it may well be that the child, if asked will say she likes to participate in every opportunity provided. I do not wish to criticise the Mother for looking for the opportunities – rather this child needs balance in her life.
The Father has a quite different family unit dynamic in existence than the Mother. The Father may well wish to spend a weekend with his daughter uncluttered by external events. Children at school need recreational time at times filled by home based or other outdoor activities. I will order that the Father can elect, when the child is with him, whether to attend weekend activities. I have confidence that he will not unduly distress or disappoint his daughter from attending events (including her friends’ birthday parties etc) unless he believes other planned activities and arrangements he has made when the child is spending time with him should prevail. I feel comfortable he will be able to negotiate with his daughter. The Mother should not have the right to impose her preferences on what the child does when X is with the Father anymore than the Father could do likewise.
Involvement in team sports and activities often involve mid-week practice and weekend games. If the child, with the support of the parents, commits to such an activity then it will of course span each weekend. For a child of this age however, the identification of preferred sports (overriding all other activities) is still some way off.
The exception seems to be her participation in dance and major performances like Eisteddfods. I believe the Father should be entitled to take her to these events; that the Mother should be able to “dress” or prepare her at the venue; and that both parents can attend. These events (Eisteddfods) are generally held in large public venues. Like weekend sport events, I see no reason why the parent who is not spending time with the child should be restrained from watching and supporting their daughter.
However, private tennis or swimming lessons/classes, birthday parties and the like, in the absence of agreement are not improved as an experience for this child by both parents attending. It puts too much pressure on the child, at this stage, to please both her parents at the same time. The orders I make hopefully make this intention clear.
As recommended by Dr R, I shall order that neither parent physically discipline the child or allow another person on their authority to do so.
The issues over “overseas travel” seem to mostly relate to the form of words used. The parties agree the Mother may get the passport and retain it if not in use. X may indeed be a fortunate girl, if she has the number of opportunities to travel contemplated by the proposed orders.
It seems that:
a)Both parents seek liberty to travel overseas on three month’s notice;
b)The parties agree that the Mother may travel to London/Europe for the Olympic Games for the whole of the July 2012 school holiday period AND the first two weeks of Term Three in 2012;
c)The Father says that this time should be on the basis that the child spend time with him “for the whole of the first school holiday period at the end of Term One in 2012”. I agree this is a fair proposal.
d)The Father seeks similar orders in 2013 – namely that he be entitled to spend the July 2013 school holidays and the first two weeks of Term Three in 2013. The Mother opposes such an order – at least on the basis that the child will be away from her for so long. By that time X will have:-
-experienced Europe for at least 4-5 weeks in 2012 with the Mother; and
-will be 9½ years old.
I believe the order sought by the Father is in the child’s best interest and will make it. Thereafter as the child gets older and opportunities for extended absences from school become more problematic, the provision to take overseas holidays during periods the child will normally be in the parents’ holiday care will apply.
Some smaller variations to the form of orders sought have been made to clarify, but hopefully not complicate, future parenting arrangements.
I make the orders appearing at the commencement of these reasons which I find to be in X’s best interests.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 9 August 2011
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