MARCHAND and MAHONY

[2017] FCWA 67

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MARCHAND and MAHONY [2017] FCWA 67

CORAM: O'BRIEN J

HEARD: 28 FEBRUARY 2017 & 1 MARCH 2017

WRITTEN SUBMISSIONS
8 MARCH 2017 & 16 MARCH 2017

DELIVERED : 6 JUNE 2017

FILE NO/S: PTW 1741 of 2008

BETWEEN: MR MARCHAND

Applicant

AND

MS MAHONY
Respondent

Catchwords:

PARENTING - where equal shared parental responsibility is agreed - where the Applicant seeks orders for equal time in circumstances where he works on a rolling roster of two day shifts, followed by two night shifts, followed by four days off - turns on own facts.

Legislation:

Family Law Act 1975 (Cth), s 60CC, s 65D, s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Ms J Johnson

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Kim Wilson & Co

Case(s) referred to in judgment(s):

Bondelmonte & Bondelmonte (2016) 91 ALJR 402

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Marchand] (“the husband”) and [Ms Mahony] (“the wife”) were married in 2004 and were divorced in 2009. They have been unable to agree the parenting arrangements for their son, born [in] 2007 (“[the Child]”). The Child was born after the parties separated.

Brief background

2The husband is a 39 year old [shift worker]. He works full-time on a rolling roster of two days and two nights on, followed by four days off. He has previously [worked] in [Organisation A], including [overseas] [in Country A] and [Country B]. He remains [an affiliate] of [a division of Organisation A]. He lives in a home in [Suburb B], which he purchased in July 2015. He had previously lived in [Suburb C] and prior to that in [Suburb D].

3The wife is a 42 year old [business executive]. She works a nine day fortnight. She lives in the former matrimonial home in [Suburb E] with her present husband [Mr B] who she married in December 2016. Mr B has two adult sons by his previous marriage.

4Financial matters between the parties were resolved by the filing of an application for consent orders in April 2008. Orders were made in the terms of that application.

5The present proceedings were commenced by the husband filing an application in May 2016 to which the wife responded promptly. Interim orders providing for the Child to live with the wife and spend time the husband were made by consent on 27 June 2016. Both parties conducted the proceedings appropriately and complied with procedural orders made by the court, which enabled the matter to progress to trial in a timely fashion.

Matters not in issue

6At the status hearing listed of the court's own motion on 17 February 2017, the parties were ordered to confer and file a joint minute of any orders that could be made by consent. They complied with that order and a significant number of matters were agreed. To their credit, the parties continued their discussions and a minute setting out further orders to be made by consent was handed up in court on the second day of trial.

7Importantly, counsel for the wife confirmed at the commencement of the trial that the order for equal shared parental responsibility sought by the husband could be made by consent.

8The orders to which the parties indicated their consent will be incorporated in the draft orders to be set out at the conclusion of these reasons.

Disputed relief sought by the parties

9A number of matters could not be agreed.

10The husband sought orders for the Child to live for equal time with each parent during school term by being in his care for the whole of his rostered time off.

11The wife sought orders to provide for the Child to spend time with the husband during school term each alternate weekend from after school on the Friday until 4.00 pm on the Sunday, provided that the husband was not rostered to work during that period. In the course of closing submissions on behalf of the wife, it became apparent that her position in that regard was fluctuating; accordingly, I directed that an updated minute be filed on her behalf setting out with precision the orders sought by her in relation to the arrangements during school term.

12That minute was filed on 8 March 2017. It proposed orders in the following terms (errors as appear in original):

1.The child born [in] 2007 live with the Respondent and spend time with the Applicant each weekend or part thereof during the school term that the Applicant is not required to work.

2.For the purposes of the previous Orders:

(a)“weekend” means the period from 4 pm on Friday until 4 pm on Sunday or 4 pm on Monday if it is a public holiday;

(b)if the Applicant is required to work for part of the weekend, then the time [the Child] is to spend with him do commence at 4pm on the day after he is required to do so;

(c)by not later than 15 January and the last Friday of Terms 1, 2 and 3 each year, the Applicant do provide the Respondent with a list of weekend dates and times in the following school term when he proposes to spend time with [the Child] on a weekend or part thereof; and,

(d)unless [the Child] has a pre-arranged family commitment on the dates nominated by the Applicant, [the Child] do spend time with the Applicant on those dates.

3.For the purpose of this Order, the term “family commitment” means:

(a)a wedding of a member of the maternal family to which [the Child] has been invited;

(b)the birthday of a parent, step parent, sibling, cousin or grandparent;

(c)any other family function to which [the Child] has been invited.

4.During the time [the Child] spends with the Applicant pursuant to these Orders, the Applicant do ensure [the Child] attends extra-curricular activities in which he is enrolled, including [theatre studies], Football, swimming or other sports.

5.In the event either parent receives an invitation for [the Child] to attend any event due to take place during the time he is to live with or spend time with the other parent, the invitation be provided to the other parent, and that parent be at liberty to respond to the invitation after discussion with [the Child].

13The husband sought an order that for the purposes of handover, each parent collect the Child from the other parent's residence at the commencement of their time with him. The wife sought an order that during school term the husband collect the Child from school at the commencement of his time with him and that she collect the Child from the husband's home at the conclusion of the time. While there was some confusion in the early stages of the trial, it will be seen that the parameters of the dispute in relation to handover are not wide, although some potential issues might emerge in relation to the practicality of the wife collecting the Child if he is spending time with the husband during the school week as sought.

14The wife also sought orders whereby the Child's time with the husband would be subject to the husband being “present for the whole of the time” and ensuring that the Child attended all extracurricular activities in which he is enrolled.

15The husband sought an order restraining each party from changing the Child's place of residence without giving the other party at least 21 days written notice of their intention to do so and that each party keep the other informed of the relevant contact details.

The law

16Section 65D of the Family Law Act 1975 (Cth) (“the Act”) provides that the court may make such parenting order as it thinks proper.

17As the High Court recently observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402 at [32]:

A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60 CC (2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60 CC (3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.

18As an order for equal shared parental responsibility is to be made, I am required to consider whether the Child spending equal time with each of his parents would be in his best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

19Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the Child to spend equal time with each parent I am required to consider whether spending substantial and significant time with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.

20Section 65DAA provides that a child will be taken to spend "substantial and significant time" with a parent only if:

(a)the time the child spends with the parent includes both days that fall on weekends and holidays, and days that do not; and

(b)the time the child spends with the parent allows that parent to be involved in the child's daily routine, and occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

21In determining what orders are in the Child's best interests, I am required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into "primary" and "additional" considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

22Clearly, not all of the considerations listed in the legislation are relevant in every case. The court will satisfy the legislative requirements provided that it turns its mind to whether or not each particular consideration is relevant to the individual case and considers all that are relevant.

Evidence relied upon

23The husband relied on the following evidence at trial:

1.his case information affidavit filed on 5 May 2016;

2.his trial affidavit filed on 14 October 2016;

3.affidavit of his friend [Mr P] filed 14 October 2016;

4.affidavit of his brother [Mr M] filed 14 October 2016; and

5.affidavit of his work colleague [Mr C] filed on 14 October 2016.

24The husband’s witnesses were not required to present for cross-examination.

25The wife relied on the following evidence at trial:

1.her case information affidavit filed on 16 June 2016;

2.her trial affidavit filed on 31 October 2016;

3.the affidavit of her mother [Mrs Mahony] filed on 31 October 2016; and

4.the affidavit of her husband Mr B filed on 31 October 2016.

26Mr B was not required by the husband to present for cross-examination.

The husband as a self-represented litigant

27At the commencement of the trial, I explained to the husband the steps that I was required to take to ensure procedural fairness. I informed him of the manner in which the trial was to proceed, the order in which evidence would be given and submissions made and his right to cross-examine. I explained the importance of cross-examination and the likelihood that evidence that was not challenged on cross-examination would be accepted.

28I explained to both parties the principles by which child-related proceedings are conducted.

29I also ensured that the husband understood that the usual rules of evidence were not to be applied and that I would explain to him if any change in the usual procedure was requested by the wife's counsel in such a way that might cause him any disadvantage. I told him that I would advise him of his right to object to any such course, in which case I would determine any objection on its merits.

30I also explained to the husband my obligation to attempt to clarify the substance of any submissions he might make, so as to ensure that I properly understood his case as he wished it to be put. He had earlier been provided with the handbook produced by the court to assist self-represented litigants and had by that process had the relevant provisions of the Act drawn to his attention.

31The husband had no hesitation in asking me questions when he felt it necessary. He had carefully prepared his court documents and the submissions he made at trial. In his papers for the judge he sought to address in a detailed manner the relevant considerations set out in the Act. He presented as an intelligent and articulate man, confident in his ability to properly present his case. I am satisfied that he understood the information that I provided to him and that the trial proceeded in a manner which afforded procedural fairness to both parties.

Observations as to the oral evidence at trial

32Both parties gave their evidence honestly and conducted themselves entirely appropriately.

33The husband was occasionally somewhat pedantic in his answers to questions, but I view that as no more than an indication that he was taking appropriate care. He made admissions without any real hesitation. While he was somewhat fixed in some of his views, that did not affect my assessment of his credibility or honesty.

34Similarly, the wife gave her evidence in a straightforward manner. She was occasionally inclined to be a little argumentative during cross-examination, but not beyond the extent which might be expected in circumstances where she was being cross-examined by her former partner as a self-represented litigant. The husband was courteous in his approach to cross-examining her and the wife was calm and courteous in her responses.

35While the wife's mother was a little less than convincing in her evidence as to some of her communications with the husband, nothing turns on that. Her evidence generally was given in a straightforward and open manner.

36In any event, there are no factual disputes between the parties of any substance such that any findings as to credibility are required or desirable. The disagreement between the parties as to what future arrangements are in the Child's best interests does not turn on historical factual disputes.

The primary considerations

37It is common ground between the parties that the Child has a meaningful relationship with both of them, that those relationships are important to him and that it is to his benefit that they continue.

38While in their affidavit material both parties raised issues as to some of the past conduct of the other, neither suggested that orders now need to be crafted with a view to any need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

39Those positions are supported by the evidence.

The additional considerations

40The husband says that the Child has expressed a wish to live with him. That said, the husband does not seek an order in those terms. The wife says that the Child has spoken to her about spending more time with the husband, but that his views in that regard are expressed in the context of a concern that the husband is "lonely" without him and that it would be "fair" if they spend more time together.

41It is not necessary to determine whether the Child has expressed a firm wish to live full-time with the husband, or if so, in what context that wish was expressed. It is sufficient to note that the parties agree that the Child is an intelligent and articulate nine year old, that he has a good relationship with both parents and that he has expressed a desire to spend more time with the husband.

42The wife's evidence was that the Child has an excellent relationship with his maternal grandparents and with his stepfather. The husband did not dispute that those relationships are good, but emphasised that his own relationship with the Child is more important. His evidence was that the Child has what he described as a “decent” relationship with his cousins both in Western Australia and the eastern States and that he regularly talks to his paternal grandmother on the telephone and has holidayed with her. The evidence of the husband's brother was supportive of him and unchallenged.

43Within the constraints of their arrangements for the care of the Child to date, and bearing in mind that they separated prior to the Child's birth, both parents have appropriately taken the opportunity to participate in making decisions in relation to him, to spend time with him and to communicate with him.

44Similarly, both parties have fulfilled their obligations to maintain the Child. While there have been discussions with the Child Support Agency as to the amount of time the Child spends with the husband, and therefore the appropriate assessment of child support, the wife acknowledges that the husband meets his child support obligations as assessed and that he also contributes equally to the Child's school fees.

45There is no relevant family violence order and neither party suggests that family violence is a factor to be taken into consideration in determining what parenting orders are now in the Child's best interests.

46The parties disagree as to the likely effect on the Child of any changes in his circumstances and as to the question of any practical difficulty or expense associated with their respective proposals.

47The husband says that the changes proposed by him would have “minimal impact” on the Child. He would continue with his daily activities and schooling in accordance with his current routine. The husband points to what he says would be improved “consistency in contact” with him if the living arrangements for the Child are set by reference to his work roster. He does not identify any practical difficulty associated with his proposed arrangements, arguing that the Child would spend less time in out of school care, and the mother would be less reliant on her family members to assist, if the arrangements he proposes are put in place.

48The mother says that the Child has always lived close to his school, with limited travel requirements. She says that the husband’s proposal will result in the Child “having significant travel commitments to get to and from school, on a revolving and changing basis”. The parties agreed that the distance between their homes is approximately 34 kilometres and the husband acknowledged that his home was 25 to 30 kilometres from the Child’s school. On the wife’s case, the travel time between the husband’s home and the Child’s school would be approximately one hour each way; on the husband’s estimation, the trip would take between 30 to 40 minutes each way.

49The wife pointed also to the Child’s current extracurricular activities including choir practice, swimming, guitar practice and football. On her evidence, those activities are based around the Child’s school in Suburb A. In cross-examination the husband acknowledged that on his proposals the Child would have to leave home at about 7.00 am to get to school from his home and potentially would not get home after school and extracurricular activities until between 6.00 pm and 7.00 pm. He did not agree with the proposition put to him that such an arrangement represented an inappropriately long day for a child of the Child’s age.

50The wife points also to the fact that the Child has lived in his present home since his birth and that the husband’s decision to purchase his home in Suburb B was made some considerable time after the parties separated. The husband acknowledged that proximity to his workplace was a factor in his decision to purchase a home in Suburb B and that he had wanted to live in that area or in [Suburb F] since prior to separation.

51The husband is, of course, entitled to choose where he lives and no criticism can sensibly be made of him in that regard. That said, the distance between the homes of the parties does impact on both the practicality of the husband’s proposed arrangements and the effect of them on the Child.

52Both parties have an appropriate capacity to provide for the Child’s needs, including his emotional and intellectual needs. As already noted, both are competent and devoted parents who have much to offer their son. Compared to many of the children whose parents come before this court, the Child is a fortunate little boy in that regard.

53The parties agree that the Child is appropriately mature for his age. Both parties have an appropriate lifestyle and offer different benefits to the Child arising from their different backgrounds.

54Both parties have an appropriate attitude both to the Child and to the responsibilities of parenthood, and each acknowledges the qualities of the other in that regard.

Consideration of equal time

55As an order for equal shared parental responsibility is to be made, I am required to consider whether an order for the Child to live for equal time with each parent is in his best interests and reasonably practicable. If so, I am required to consider making such an order.

56Taking into account all the matters referred to above, and the nature of the husband’s proposal as to equal time, I conclude that the arrangement proposed by the husband is not in the Child’s best interests. While the framework of the husband’s proposal is understandable from his perspective, and demonstrates his willingness to be a “full-time parent” during those parts of his roster when he is not working, it necessarily involves the Child in frequent changes between the households of the parties, and changes in his routine revolving around that roster. While the Child’s routine in terms of where he would sleep each night would settle into an obvious rhythm, his routine in the sense of his day-to-day activities, both at school and in his extracurricular pursuits, would frequently change. The proposal would also effect a considerable change in the primary care arrangements which have been in place for the Child since his birth.

57I also conclude that an order for equal time is not reasonably practicable, bearing in mind the distances involved, the respective work commitments of the parties, the current arrangements for the Child’s schooling and extracurricular activities and the arrangements for his care outside school hours.

58Notwithstanding those observations, I do consider that an order for the Child to spend substantial and significant time (as that term is defined in the Act) with the husband is in the Child’s best interests. The Child wishes to spend more time with his father and will in my view benefit from arrangements which facilitate a greater level of involvement by the husband in his daily routine other than on weekends, and in any events which are of particular significance to him.

59While there are practical difficulties associated with such an arrangement, those difficulties have less impact than would be the case in an equal time arrangement. In my view the benefits to the Child of additional time with the husband outweigh the negative impacts of the practical difficulties.

60I propose to make orders designed to ensure that to the greatest extent possible, where the husband’s work roster makes him available to the Child on weekends the Child will be in his care as at present. I propose to alter the current arrangements so as to ensure that the Child’s time with the husband on such weekends extends into the school week where that coincides with the husband’s availability.

61That availability in turn must be viewed in the context of the structure of the husband’s roster. For the first two days of each working component of his roster, the husband is assigned to dayshift, requiring him to work from 8.00 am to 6.00 pm. For the second two days of each working component of his roster, the husband is assigned to nightshift, requiring him to work from 6.00 pm to 8.00 am.

62That in turn means that the husband cannot sensibly be expected to be genuinely available to the Child until the afternoon of the first day of each nonworking component of his roster, as he will have worked until 8.00 am that day. By the same token, the husband will be fully available to the Child on the last day of each nonworking component of his roster, as he will not resume work until 8.00 am the following day. The timing of the commencement of the husband’s dayshift, when combined with the Child’s starting time at school and the distances involved, lead to a conclusion that the Child’s time with the husband should where appropriate end on the afternoon of the last day of each nonworking component of the husband’s roster, rather than the morning of his first day back at work.

63Orders of that nature will still require the wife to adapt to the husband’s roster to a certain extent; more so than she would regard as being desirable. I expect, however, that she will recognise that the potential benefit to the Child of additional time with the husband outweighs the inconvenience to her. Similarly, I expect the husband to recognise that inconvenience, and that the wife’s resistance to the initial proposal for the arrangements for the Child, revolving around his work roster to the extent initially proposed, was not unreasonable.

64I consider the wife’s proposal that the husband be obliged to ensure that the Child attends his regular extracurricular activities while in his care to be in the Child’s best interests. I do not consider it appropriate, nor in the Child’s best interests, to make the orders proposed by the wife in relation to what she has termed “family commitments”, as in my view the Child’s time with the husband should generally be prioritised over those events. Neither party should misunderstand that observation; there will clearly be occasions on which it is in the Child’s best interests for him to be able to attend a special family event, regardless of where that event falls in the schedule of his care between his parents. Both parties should apply common sense, courtesy and flexibility in determining those issues as and when they arise. I am confident that they will do so, and prioritise the Child’s best interests in the process.

65I consider it appropriate and in the Child’s best interests to make the order sought by the husband requiring each party to give the other reasonable notice of any intention to change their principal place of residence. That is consistent with the agreed position that the parties should have equal shared parental responsibility.

Proposed orders

66Subject to any submissions as to form, I propose to make the following orders (noting that the orders contained in paragraphs 1, 4 to 9 inclusive and 12 to 23 inclusive are made by consent albeit the order in paragraph 20 was expressed by the parties as an undertaking):

1.[Mr Marchand] (“the Applicant”) and [Ms Mahony] (“the Respondent”) have equal shared parental responsibility for [the Child], born [in] 2007 (“[the Child]”).

2.[The Child] live with the Respondent.

3.During school terms, [the Child] spend time with the Applicant during each four-day component of his regular work roster on which the Applicant is not rostered to work (“RPO”) as follows:

(a)where the RPO commences on a Thursday, from after school Thursday until 5.00 pm on the following Sunday;

(b)where the RPO commences on a Friday, from after school Friday until after school on the following Monday, or 4.00 pm if the Monday is not a school day;

(c)where the RPO commences on a Saturday, from 4.00 pm on the Saturday until after school on the following Tuesday; and

(d)where the RPO commences on a Sunday, from 4.00 pm on the Sunday until after school on the Monday, or 4.00 pm if the Monday is not a school day.

4.[The Child] spend time with the Applicant on:

(a)[Date A] being the Child's birthday, if it is a day he would not otherwise be living with or spending time with the Applicant, and subject to the Applicant not being required to work, for a period of four (4) hours and in the absence of agreement to the contrary with that time to be nominated by the Applicant in even numbered years and by the Respondent in odd numbered years;

(b)[Date B] being the Applicant's birthday if is not a day he would otherwise be living with or spending time with the Applicant, and subject to the Applicant not being required to work, for a period of two (2) hours if it falls on a school day and for a period of four (4) hours if it falls on a day [the Child] is not required to attend school;

(c)subject to the Applicant not being required to work on that day, from 4.00 pm on the day immediately preceding Father's Day until 4.00 pm on Father's Day;

(d)save as provided for in paragraphs 5, 6 and 8 hereof, and provided the Applicant is not required to work while [the Child] is in his care, for a period not exceeding eight (8) nights during each of the April, July and October school holiday periods, and in the absence of written agreement between the parties, that time to commence at 3.00 pm on the first Friday of the holiday period; and

(e)save as provided for in paragraphs 5 and 7 hereof, and provided the Applicant is not required to work while [the Child] is in his care, for up to three periods not exceeding seven (7) days during the December/January school holidays, and in the absence of agreement, weeks 1, 3 and 5 in even numbered years, and weeks 2, 4 and 6 in odd numbered years.

5.[The Child’s] time with the Applicant be suspended and [the Child] spend time with the Respondent:

(a)[Date A] being [the Child's] birthday if it is a day he would not otherwise be living with or spending time with the Respondent, and subject to the Respondent not being required to work, for a period of four (4) hours and in the absence of agreement to the contrary with that time to be nominated by the Applicant in even numbered years and by the Respondent in odd numbered years;

(b)3 December if is not a day he would otherwise be living with or spending time with the Respondent, and subject to the Respondent not being required to work, for a period of two (2) hours if it falls on a school day and for a period of four (4) hours if it falls on a day [the Child] is not required to attend school;

(c)subject to the Respondent not being required to work, from 4.00 pm on the day immediately preceding Mother's Day until 4.00 pm on Mother's Day;

(d)save as provided for in paragraphs 6 and 8 hereof, for a period not exceeding eight (8) nights during each of the April, July and October school holiday periods, and in the absence of written agreement between the parties, that time to begin at 4.00 pm on the middle Saturday of the holiday period; and

(e)save as provided for in paragraphs 4 and 7 hereof, for up to three periods not exceeding seven (7) days during the December/January school holidays, and in the absence of agreement, weeks 1, 3 and 5 in odd numbered years, and weeks 2, 4 and 6 in even numbered years.

6.[The Child] do spend extended time with the Applicant from 30 June 2017 to 17 July 2017.

7.[The Child] do spend the following time with the parties on 24-26 December each year:

(a)from 9.00 am on 24 December until 9.00 am on 26 December with the Respondent and with the Respondent to collect [the Child] from the Applicant’s home if necessary at the commencement of that time; and

(b)from 9.00 am on 26 December with the Applicant and with the Applicant to collect [the Child] from the Respondent’s home at the commencement of that time.

8.Notwithstanding the provisions of paragraphs 4 and 5 as they relates to the April, July and October school holiday periods, the parties each be at liberty to nominate one midyear school holiday period in each calendar year when [the Child] do spend from the last Friday of the school term until 4.00 pm on the last Friday of the school holiday period with that party, with the Applicant to have priority in odd numbered years and the Respondent to have priority in even numbered years.

9.If either party wishes to take [the Child] away from the State of Western Australia for the purposes of a holiday then:

(a)if the proposed travel is within Australia, the departing party shall provide not less than 28 days' written notice to the other party of their intention to travel and shall, as soon as practicable provide the other party with:

(i)a copy of any travel itinerary;

(ii)details of where [the Child] will be staying during the absence; and

(iii)contact details for [the Child] during the absence;

(b)if the proposed travel is outside Australia, the departing party shall provide not less than 35 days written notice to the other party of their intention to travel and, at the same time, provide details to the other party of:

(i)the proposed destination and travel arrangements;

(ii)details of where [the Child] will be staying during the absence; and

(iii)contact details for [the Child] during the absence;

(c)the parties be restrained and an injunction is hereby granted restraining them from travelling with [the Child] pursuant to these orders during a period [the Child] is otherwise attending school, unless otherwise agreed between the parties; and

(d)except as provided in this order, the Applicant and the Respondent both be restrained and an injunction is hereby granted restraining them from removing [the Child] from the Commonwealth of Australia without the prior written consent of the other party (not unreasonably withheld) or an order of the Court.

10.During the time [the Child spends with the Applicant pursuant to these Orders, the Applicant do ensure [the Child] attends extra-curricular activities in which he is enrolled, including [theatre activities], football, swimming or other sports.

11.Where handovers pursuant to these orders do not fall at the end of the school day, the Applicant collect [the Child] from the Respondent’s home at the commencement of each period [the Child] is to spend with him, and the Respondent collect [the Child] from the Applicant’s home at the conclusion of the period.

12.The parties encourage [the Child] to have reasonable telephone communication with the party he is not otherwise living or spending time with.

13.The parties each inform the other of any hospitalisation, significant injury or health problems suffered and treatment received by [the Child] as soon as practicable thereafter, whilst he is in the care of the Applicant or the Respondent.

14.The parties authorise and instruct each educational institution attended by [the Child], to release to each of the Applicant and the Respondent such information regarding the progress of [the Child] in his education as may be reasonably requested from time to time.

15.The parties authorise and instruct each medical institution attended by [the Child] to release to the Applicant and the Respondent such information regarding [the Child's] medical and dental health as may be reasonably requested from time to time.

16.Each party will endeavour to promote [the Child’s] relationships with maternal and paternal family members and other significant persons.

17.The parties sign all documents necessary for the issue of and any renewal for a passport for [the Child] within 21 days of presentation of the Passport application form by either party.

18.The parties each notify the other 14 days beforehand of any change of residential address and/or contact telephone number.

19.The parties be restrained and an injunction is hereby granted restraining them from:

(a)denigrating the other party to or within the hearing of [the Child], or allowing any third party to do so; and

(b)discussing the proceedings with [the Child] or showing him any documents relating to the proceedings, or allowing any third party to do so.

20.Without admission as to need, the Applicant and the Respondent each be restrained by injunction from :

(a)using physical discipline against [the Child]; and

(b)using non-prescribed drugs or drinking to excess during the time the [the Child] is in their care.

21.The parties do communicate with each other about matters relating to [the Child’s] welfare by email, and each use their best endeavours to respond to any email received within three days of receipt.

22.In addition to the time provided for at paragraphs 5 and 7 of these orders, the Respondent be at liberty to travel with [the Child] to [overseas] during the December 2017/January 2018 summer holidays for a period of up to 18 days, with the dates of travel to be notified to the Applicant by not later than 31 March 2017.

23.For the purposes of the previous order made herein, the Applicant do notify the Respondent of his anticipated leave in January/February 2018 as soon as practicable and the dates of travel to [overseas], as much as possible be selected by the Respondent to ensure [the Child] is not travelling on the dates the Applicant is on leave.

24.All outstanding applications and responses otherwise be and are hereby dismissed.

25.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:

(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

I certify that the preceding [66] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
06/06/2017