Marsh and Davidson

[2016] FCCA 698

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSH & DAVIDSON [2016] FCCA 698

Catchwords:
FAMILY LAW – Interim parenting – where mother proposes relocation of child to the (omitted) of New South Wales where she has obtained employment – where Family Report cautions about change – where final hearing in August – where interim relocation declined.

Legislation:

Family Law Act 1975, Part VII

Cases cited:
Morgan and Miles [2007] FamCA 1230
C and S [1998] FamCA 66

Applicant: MS MARSH

Respondent: MR DAVIDSON

File Number: WOC 932 of 2014

Judgment of: Judge Altobelli

Hearing date: 26 February 2016

Date of Last Submission: 26 February 2016

Delivered at: Wollongong

Delivered on: 3 March 2016

REPRESENTATION

Solicitors for the Applicant: Kennedy & Cooke

Solicitors for the Respondent: DGB Lawyers

Counsel for the Respondent: Ms Humphreys

Solicitors for the Independent Children's Lawyer: Legal Aid Wollongong

ORDERS

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Mother be restrained from relocating the Child, X born (omitted) 2011 (‘the child’), to live more than twenty (20) kilometres away from the Mother’s current residence at (omitted), New South Wales unless there is a Court Order permitting the Mother to relocate the Child or the Father provides his express written consent to the Mother to relocate the Child.

THE COURT FURTHER ORDERS THAT:

1. The matter be stood over to Final Hearing commencing 22 August 2016 at 10:00am.

2. The Respondent’s costs be reserved.

THE COURT NOTES THAT:

A.The existing spend time with arrangement will continue.

IT IS NOTED that publication of this judgment under the pseudonym Marsh & Davidson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 932 of 2014

MS MARSH

Applicant

And

MR DAVIDSON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case is about X, who was born on (omitted) 2011 and who is 4 but nearly 5.  The Applicant is his mother.  She, in effect, seeks orders that would enable X and herself to relocate to the (omitted) so that she might be closer to employment that she has obtained as a (occupation omitted).  Her proposal is, in effect, that she would live with her partner, that X would attend the local school but he would spend regular time with his father.  The precise orders proposed by the Mother are contained in her case outline document, which I will simply incorporate into Schedule 1 of these, my reasons for judgment.

2. The Father’s case is, in effect, to oppose the proposed relocation.  The orders that he seeks are set out in the very comprehensive case outline document that was provided by his Counsel, Ms Humphreys.  I will simply incorporate those orders into Schedule 2 of these, my ex tempore reasons. 

3. The Independent Children’s Lawyer also provided a very comprehensive set of submissions.  By the end of her submissions it was apparent that she was, in effect, opposing relocation on an interim basis. As with the other case outlines, I will incorporate those into Schedule 3 of these ex tempore reasons for judgment.  The evidence is referred to in the case outlines. 

4. The issue before the Court is as to whether to allow the relocation on an interim basis.  It is very important for both parents to understand that today’s decision is designed to cover the relatively short period, at least from the experience of this Court, between today and 22 August 2016 when the matter is set down for a Final Hearing.  There are obvious limitations in making interim decisions.

5. The evidence cannot be tested, even in a case like this where the Court has had the very significant benefit of a Family Report prepared by Dr V, dated 24 November 2015, received 17 December 2015 and then released to the parties.  Even in a case like this the evidence is untested.  At a final hearing the evidence of both parents and the family consultant and their respective witnesses can be tested.  Hence, it is very important for Ms Marsh and Mr Davidson both to understand that whatever decision is made today could easily be reversed at a final hearing once the evidence has been looked at very carefully and tested.

6. The applicable law is referred to in the case outlines.  I think it is relatively uncontentious that the Family Law Act1975 (‘the Act’) draws no distinction in Part 7 between making interim decisions about children and final decisions about children. It is ultimately an assessment of best interests, having regard to the considerations that are set out in s.60CC of the Act, as well as the other relevant sections within Part 7. Whilst the Court has been referred to a number of cases in the case outlines, perhaps the more significant of which were the Full Court’s decision in Morgan and Miles [2007] FamCA 1230 and C and S [1998] FamCA 66.

7. Ultimately, at the very highest, those cases seem to indicate that the Court must have regard to the statute and to the considerations set out therein but I think those cases also indicate that a judge is not going to fall into appellable error if the Court decides that only one or perhaps two of the considerations are the ones that inform the interim decision that is made.  Indeed, as it turns out, that is the case on this particular matter.  Ultimately, the decision in relation to X can be made in this case by reference only to the Mother’s evidence and, indeed, to the Family Report.

8. When one has regard to the Mother’s own evidence in this case, what becomes apparent is that her proposal involves a very substantial change in X’s life in circumstances where the impact on him is largely unknown and in circumstances where it is not clear that the move would be a permanent one and, further, in circumstances where it is not clear that there were no other alternatives available to the Mother.  For example, focussing on the Mother’s Affidavit of 14 January 2016, she quite properly sets out the history of X’s time with his father, noting that it is each Tuesday, each Friday overnight to Saturday and then each Sunday so X spends time with his father three times each week.

9. The comparison, from X’s perspective, to the Mother’s proposal for him to spend time with his father if she’s allowed to take him down to the (omitted) could not be starker, even putting aside some of the practical issues about travel.  Part of the Mother’s case is – and, can I say, very understandably – based upon her concern to find work and to further her career and also, perhaps, though to a lesser extent, to further a new relationship, but her evidence about the positions that she has applied for is evidence that is largely incomplete.

10. For example, at paragraph 9 of that Affidavit she refers to the 25 positions that she has applied for without success, thus focussing on the absence of alternatives for her other than the present position that she has with (omitted) College at (omitted).  But when one looks closely at the positions that she has applied for, what becomes evident – and this was pointed out both by Ms O’Donnell and Ms Humphreys – is that the positions that she applied for were mostly in the (omitted).  Only one position appears to have been sought in the (omitted), none in the (omitted), none in the (omitted) area and none in (omitted). 

11. Hence, there were alternatives available to the Mother, which, on her own evidence, she did not pursue.  At paragraph 16 of the Mother’s Affidavit the Mother makes an appropriate concession in recognising that X has some special needs so she has:

    Sourced an appropriate child psychologist in (omitted) to continue working and supporting X with any behavioural or emotional concerns that may arise after the relocation.

12. The Mother shows some real insight here in recognising that the move may well exacerbate or create any issues that X might be experiencing.  The mere fact, however, that she has sourced an appropriate child psychologist merely adds to the Court’s concern about making a dramatic change in X’s life unnecessarily.  At paragraph 19 of her Affidavit the Mother says – and again the Court is nothing but complimentary of her in this regard – that:

    I truly believe it is vital for X to continue to have a great relationship with his dad.

13. She recognises, quite appropriately, that X does have a great relationship with his father but that simply throws into focus the issue of whether that relationship can be sustained in the circumstances that will be brought about by a change of where he lives.  It must not be forgotten that from X’s perspective it is not just a change that is associated with spending less time with his father, actually, that is not necessarily correct if one adopts a mathematical approach to time because the Mother’s proposal, it must be recognised, does give him the opportunity to spend lengthier blocks of time with his father.

14. But what it does – and this is, I think, particularly significant for a child of X’s age – is to reduce the frequency and the opportunity for those interactions between X and his father at different times and different stages in terms of his life.  The Mother says, for example, in her Affidavit at paragraph 24, in setting out the terms of a conversation with the father, that:

    Your relationship with X won’t change.  There’s nothing stopping you from coming down to our place every other weekend to visit.  You’re more than welcome to stay at our place.

15. But that is the issue for the Court and it is largely unknown how, if at all, X’s relationship with his father would change in view of the significant changes that would occur in his life if he moves to a new community, a new set of friends, a new physical environment, let alone a psychological environment.  He, on the evidence before me, does not appear to have developed a relationship with the Mother’s partner, Mr H.  There are so many uncertainties about X that the Mother’s assurance to the Father that “your relationship with X won’t change” might be an aspirational statement based on hope rather than reality.

16. As for the suggestion that “there’s nothing stopping [the Father] from coming down to our place every other weekend to visit”, with great respect to the Mother, I think this is optimistic in the extreme.

17. The other aspect that needs to be noted, again, from the Mother’s own evidence, is the offer of employment that she has obtained.  Annexure B to her affidavit is the letter dated 2 December 2015 from the (employer omitted) in (omitted).  The letter states clearly she is offered temporary employment.  It commences on 27 January 2016. It is for a maximum term that will commence on 27 January 2016 and end on 18 December 2016.  This position is temporary in nature as the (employment omitted) staffing has been increased for the 2016 (omitted) year only.  Thus, on the Mother’s own evidence, there is nothing to reassure the Court that the work that she wishes to continue will, indeed, subsist beyond December 2016. 

18. When one turns to Dr V’s report, a number of things become apparent.  Firstly, it is important to focus on a few paragraphs.  For example, the observations of Dr V between X and his parents and Mr H at paragraphs 38, 39 and 40:

    X was observed interacting with each parent. He held his father’s hand as they walked to the observation room together. Mr Davidson commented to X about the different toys that were available and shadowed X as he explored. Finally X settled on playing with the tea set. Mr Davidson sat at X’s level. He was observed to be affirming of X and followed the lead he set in the play. The interaction between them was relaxed and at ease and there were occasional exchanges of physical affection. In time, X tired of playing with the tea set and Mr Davidson found a Jenga game. X suggested they play Jenga and Mr Davidson agreed. They conversed about the game and their interaction was comfortable. At the end of the observation, Mr Davidson waited until X was finished for the day before he left the Court precincts.

    When X was observed with his mother, Ms Marsh initially tried to structure the play. She suggested on two occasions that she and X draw and on both occasions X refused. He told his mother that he wanted to play with the tea set.  Ms Marsh sat at  X’s level  and they played at the doll’s house. X subsequently played out a scenario with his mother shadowing him and following his lead. Their play was relaxed and punctuated with humour.  X and his mother had some conversation about his cousins, A and B.

    When Mr H entered the room, he sat on the floor with Ms Marsh and X. Their interaction was relaxed and interspersed with laughter, Their conversation became quite energised.  X was observed asking Mr H who he referred to as “Mr H” for help to build a house.

19. At paragraph 46 Dr V makes the observation that this is a matter where the possibilities for conflict seem to be increasing rather than abating.  At paragraph 47 she warns the parties about the need to be attentive to preserving X’s relationship with each of them.  At paragraphs 49 onwards she discusses specifically the relocation issue:

    This is a matter that has the potential to become derailed by a crisis and an escalation of tension between the parties, if Ms Marsh’s proposal to move to (omitted) without the permission of the Court proceeds. It would be essential that this be resolved as a matter of urgency before she makes the decision to move.  Relocation raises the tension of Ms Marsh meeting her own needs by having freedom to start a life in (omitted) where she has a work contract for one year with a possible extension and where her partner lives, against the losses for X that are likely to result from him not being able to spend as regular time with his father as is currently the case.

    Ms Marsh advances the argument that if she relocates with X to (omitted), she will have a better work/ leisure balance, and will therefore be able to provide more quality care for X. This will also allow her to consolidate her relationship with Mr H who works and owns a home in the (omitted) area and for whom it is seemingly not an option to move from the area. There may be some strength in the argument that the welfare of a child is dependent on the happiness of a primary care giving parent and that, if the needs of Ms Marsh are not met, this will impact adversely on X. She has unsuccessfully tried to find work as a (occupation omitted) in (omitted) and her job offer allows her forge her career. She may harbour considerable resentment if she was not permitted to take up the job offer and forge her relationship.

    However, the relocation proceeding would signify a significant loss in the continuity of the regular time X has spent with his father and ultimately could lead to a watering down of that relationship which is currently assessed as strong. This assessment would indicate that Mr Davidson is not in a position to assume full time care of X and this would be a highly untested option. Should Ms Marsh relocate with X,  the distance of two hours and forty minutes which separates (omitted) and (omitted), is likely to seriously diminish the social capital Mr Davidson  has to offer X including participating in his extracurricular activities and his school. Mr Davidson claims that he sometimes not included by Ms Marsh in important decisions, and, should she relocate, he is even less likely to have the opportunity to be an engaged parent even if he is informed and invited.. This includes for example, participation in every day school and sports activities such as parent teacher meetings, first day of school, prize giving for X and extracurricular events The parties need to be cognizant of the benefits that accrue for children of having both parents visibly involved in their lives, particularly if they can do so together.

    Ms Marsh proposes to facilitate Skype contact daily. The onus would be on both parties to be proactive about facilitating such contact if X  was to live in (omitted).  In addition, while Ms Marsh has the best of intentions to facilitate X travelling to spend time with Mr Davidson on alternate weekends and to encourage Mr Davidson to travel to (omitted), as X becomes older, this might eventually  become tiresome and interfere with X’s weekend activities . It would take an enormous amount of commitment, which the parties do currently say they have and have demonstrated a capacity for in the past, for these arrangements to be sustainable. Possible issues might arise however, around X being in the care of the paternal grandparents when Mr Davidson is at work on weekends, given Ms Marsh’s current feelings about them. Additionally, while Mr H might become an important male role model for X, it is imperative that X’s relationship with his father does not peter out.

    If Ms Marsh was to relocate, X may experience some stress and anxiety either because he feels that his father has abandoned him or because he has not had the chance to maintain a relationship with him through regular contact. Children of X’s age are also egocentric in their view of the world. Therefore, X may perceive a reduction in the time he spends with his father as being his fault and he may be left thinking that he was in part responsible for his father no longer playing such a significant role in his life. Ideally, if Ms Marsh does relocate, Mr Davidson would be advised to seriously consider moving himself so that arrangements akin to substantial care, i.e. four to five evenings per fortnight or at least some time every week can be implemented.

20. At paragraph 53, though, she warns both the parents and the Court that:

    If Ms Marsh was to relocate X may experience some stress and anxiety, either because he feels that his father has abandoned him or because he has not had the chance to maintain a relationship with him through regular contact.

21. She explains that children of X’s age are egocentric in their view of the world and thus that X may perceive a reduction in the time that he spends with his father as being his fault and he may be left thinking that he is, in part, responsible for his father no longer playing such a significant role in his life.  Dr V is very cautious in the discussion about the relocation.  When one has regard to the Mother’s own evidence as discussed in these reasons and Dr V’s report, this Court concludes that it is not in X’s best interest – at least for the time being – for the relocation to be permitted.

22. The existing arrangements in relation to X, as reflected in current orders, and the current arrangements should continue.  The matter has been set down for hearing on 22 August 2016.  Directions have been made in this regard.  One would hope that at the final hearing there might be further and better evidence that deals with some of the concerns that this Court has raised.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  20 April 2016

Schedule 1

Order Proposed by the Mother

1. The mother and the father shall have equal shared parental responsibility for the child X, born (omitted) 2011 (hereinafter referred to as “the child”).

2. The child shall live with the mother at all times when the child is not living with the father or spending time with the father in accordance with these Orders. 

3. The child shall live with father as follows:

   3.1From 2.00 pm until 6.00 pm each Tuesday;

   3.2From 3.30 pm each Thursday until 7.00 pm on the following Saturday;

   3.3From 11.30 am until 6.00 pm each Sunday;

   3.4For additional block periods of time each year as agreed between the parties but failing agreement between the parties 2 periods of seven (7) consecutive nights.

   On special occasions:

   3.5On 14 April each year when the father does not have the child in his care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the day is a day when the child is attending pre-school and from 10.00 am until 2.00 pm if the day is a day when the child is not attending pre-school;

   3.6On 27 April each year when the father does not have the child in his care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 8.00 pm if the relevant date is a day when the child is attending pre-school and from 10.00 am until 5.00 pm if the relevant date is a day when the child is not attending pre-school;

   3.7From 5.00 pm on the Saturday immediately preceding Father’s Day until 5.00 pm on Father's Day;

   3.8From 3.00 pm on Friday 25 March 2016 until 1.00 pm on Sunday 27 March 2016;

   3.9From 12.00 noon 25 December 2016 until 12.00 noon 26 December 2016;

   Generally:

   3.10At such other times as may be agreed between the parties from time to time. 

1. Unless otherwise agreed by the parties the child shall live with the mother at the following times and any other Order providing for time contrary to this Order is suspended to facilitate this Order:

   4.1On 14 April each year when the mother does not have the child in her care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the relevant date is a day when the child is attending pre-school and from 10.00 am until 2.00 pm if the relevant date is a day when the child is not attending pre-school; 

   4.2On 13 September each year when the mother does not have the child in her care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the relevant date is a day when the child is attending pre-school and 10.00 am until 5.00 pm if the relevant date is a day when the child is not attending pre-school; 

   4.3From 5.00 pm on the Saturday immediately preceding Mother’s Day until 5.00 pm on Mother's Day;

   4.4From 1.00 pm on Sunday 27 March 2016 until 5.00 pm on Easter Monday 28 March 2016;

   4.5From 12.00 noon 24 December 2016 until 12.00 noon 25 December 2016.

2. Unless otherwise expressly stated in these Orders all changeovers for the child, where such changeovers do not occur at the child's place of education, are to occur at the mother’s residence.

3. Each parent shall be entitled to attend all events at which the child is present that allow for parental attendance or participation, including but not limited to:

   6.1sporting fixtures;

   6.2extra-curricular activities;

   6.3day care or school functions and events.

4. Each party shall facilitate telephone communication between the child and the other party at 7.00 pm each Wednesday and Saturday with the party who has the care of the child at the relevant time to telephone the other party. 

5. Each party shall facilitate telephone communication between the child and the other party at any time the child requests to speak to the other party. 

6. Except in the case of an emergency (in which case the parties may communicate by telephone) the parties shall communicate by e-mail or by text message to exchange information on any matters relevant to the care, welfare or development of the child and each party is restrained from abusing, insulting, belittling, rebuking and otherwise denigrating the other party, a member of the other party's extended family or a person the other party is in a domestic relationship with via this communication. 

7. Each party is authorised by this Order to receive directly from the child’s places of education, including day-care or preschool, a copy of all school reports for the child, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.

8. Each party shall keep the other party informed of his or her residential address and notify the other party of any change to the residential address at least fourteen (14) days in advance of any change.

9. Each party shall keep the other party informed of a contact telephone number, and notify the other party of any change to the contact telephone number at least forty-eight (48) hours in advance of the change.

10. Each party shall keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the requirements for the child.

11. Each party shall inform the other party as soon as reasonably practicable of:

    14.1any medication prescribed for the child while the child are in the party’s care; and

    14.2any medical, dental or health appointment which is scheduled to occur for the child while the child is in the party’s care.

12. Each party shall inform the other party as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.

13. If the child is admitted to hospital each party shall facilitate the other party visiting with the relevant child during the period of the admission in hospital.

14. Without admissions each party is hereby restrained from denigrating, belittling, insulting the other party, persons who the other party is in a domestic relationship with, or members of the other party’s family in the presence or hearing of the child and each party must use their best endeavours to ensure that no other person denigrates or insults the other party, persons who the other party is in a domestic relationship with or members of the other party’s family in the presence or hearing of the child.

15. Neither party shall be permitted to travel with the child overseas without the other party providing express written consent for the travel. 

16. The mother be restrained from relocating the child to live more than twenty (20) kilometres away from the mother’s current residence at (omitted), New South Wales, unless there is a Court Order permitting the mother to relocate the child or the father provides his express written consent for the mother to relocate the child.

Schedule 2

Order Proposed by the Father

1. The mother and the father shall have equal shared parental responsibility for the child X, born (omitted) 2011 (hereinafter referred to as “the child”).

2. The child shall live with the mother at all times when the child is not living with the father or spending time with the father in accordance with these Orders. 

3. The child shall live with father as follows:

   3.1From 2.00 pm until 6.00 pm each Tuesday;

   3.2From 3.30 pm each Thursday until 7.00 pm on the following Saturday;

   3.3From 11.30 am until 6.00 pm each Sunday;

   3.4For additional block periods of time each year as agreed between the parties but failing agreement between the parties 2 periods of seven (7) consecutive nights.

   On special occasions:

   3.5On 14 April each year when the father does not have the child in his care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the day is a day when the child is attending pre-school and from 10.00 am until 2.00 pm if the day is a day when the child is not attending pre-school;

   3.6On 27 April each year when the father does not have the child in his care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 8.00 pm if the relevant date is a day when the child is attending pre- school and from 10.00 am until 5.00 pm if the relevant date is a day when the child is not attending pre-school;

   3.7From 5.00 pm on the Saturday immediately preceding Father’s Day until 5.00 pm on Father's Day;

   3.8From 3.00 pm on Friday 25 March 2016 until 1.00 pm on Sunday 27 March 2016;

   3.9From 12.00 noon 25 December 2016 until 12.00 noon 26 December 2016;

   Generally:

   3.10At such other times as may be agreed between the parties from time to time. 

4. Unless otherwise agreed by the parties the child shall live with the mother at the following times and any other Order providing for time contrary to this Order is suspended to facilitate this Order:

   4.1On 14 April each year when the mother does not have the child in her care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the relevant date is a day when the child is attending pre-school and from 10.00 am until 2.00 pm if the relevant date is a day when the child is not attending pre-school; 

   4.2On 13 September each year when the mother does not have the child in her care overnight on the particular date for a period of time agreed to between the parties but failing agreement between the parties from 3.00 pm until 6.00 pm if the relevant date is a day when the child is attending pre-school and 10.00 am until 5.00 pm if the relevant date is a day when the child is not attending pre-school; 

   4.3From 5.00 pm on the Saturday immediately preceding Mother’s Day until 5.00 pm on Mother's Day;

   4.4From 1.00 pm on Sunday 27 March 2016 until 5.00 pm on Easter Monday 28 March 2016;

   4.5From 12.00 noon 24 December 2016 until 12.00 noon 25 December 2016.

5. Unless otherwise expressly stated in these Orders all changeovers for the child, where such changeovers do not occur at the child's place of education, are to occur at the mother’s residence.

6. Each parent shall be entitled to attend all events at which the child is present that allow for parental attendance or participation, including but not limited to:

   6.1sporting fixtures;

   6.2extra-curricular activities;

   6.3day care or school functions and events.

7. Each party shall facilitate telephone communication between the child and the other party at 7.00 pm each Wednesday and Saturday with the party who has the care of the child at the relevant time to telephone the other party. 

8. Each party shall facilitate telephone communication between the child and the other party at any time the child requests to speak to the other party. 

9. Except in the case of an emergency (in which case the parties may communicate by telephone) the parties shall communicate by e-mail or by text message to exchange information on any matters relevant to the care, welfare or development of the child and each party is restrained from abusing, insulting, belittling, rebuking and otherwise denigrating the other party, a member of the other party's extended family or a person the other party is in a domestic relationship with via this communication. 

10. Each party is authorised by this Order to receive directly from the child’s places of education, including day-care or preschool, a copy of all school reports for the child, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.

11. Each party shall keep the other party informed of his or her residential address and notify the other party of any change to the residential address at least fourteen (14) days in advance of any change.

12. Each party shall keep the other party informed of a contact telephone number, and notify the other party of any change to the contact telephone number at least forty-eight (48) hours in advance of the change.

13. Each party shall keep the other party informed at all times of the names and address of any treating medical practitioner or other health professionals who treat the child and authorise those practitioners to provide the other party with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the requirements for the child.

14. Each party shall inform the other party as soon as reasonably practicable of:

    14.1any medication prescribed for the child while the child are in the party’s care; and

    14.2any medical, dental or health appointment which is scheduled to occur for the child while the child is in the party’s care.

15. Each party shall inform the other party as soon as is reasonably practicable if the child is hospitalised at any time or is required to attend with a medical professional to seek emergency medical treatment.

16. If the child is admitted to hospital each party shall facilitate the other party visiting with the relevant child during the period of the admission in hospital.

17. Without admissions each party is hereby restrained from denigrating, belittling, insulting the other party, persons who the other party is in a domestic relationship with, or members of the other party’s family in the presence or hearing of the child and each party must use their best endeavours to ensure that no other person denigrates or insults the other party, persons who the other party is in a domestic relationship with or members of the other party’s family in the presence or hearing of the child.

18. Neither party shall be permitted to travel with the child overseas without the other party providing express written consent for the travel. 

19. The mother be restrained from relocating the child to live more than twenty (20) kilometres away from the mother’s current residence at (omitted), New South Wales, unless there is a Court Order permitting the mother to relocate the child or the father provides his express written consent for the mother to relocate the child.

Schedule 3

Order Proposed by the Independent Children’s Lawyer

1. The parties have joint parental responsibility for the child.

2. That the child live with the Applicant Mother.

3. That the Mother not be restrained from relocating with the child to (omitted) NSW on or before 26 February 2016.

4. That the child be enrolled and attend Pre-School in (omitted).

5. That the child spend time with the Respondent Father as follows:

   a.Commencing 26 February 2016, each alternate weekend from 6pm Friday until 4pm Sunday; and

   b.For half of the NSW gazetted school holidays as agreed and failing agreement for the first half of even numbered years and for the second half in odd numbered years, commencing in 2016.

6. If Mother’s Day falls during the time in which the child is with the Respondent Father, the Father’s time be suspended from 4pm on the day proceeding Mother’s Day until 4 pm on Mother’s Day.  

7. That changeover take place at a location as agreed between the parties and failing agreement, changeover is to take place at (omitted) McDonalds.

8. That each party have liberal and flexible telephone contact with the child whilst in the care of the other parent and that each party facilitate any telephone calls the child wishes to make the other parent whilst in their care.

9. That the Respondent Father is permitted to have telephone or Skype contact with the child on occasions as agreed between the parties, and failing agreement each Monday, Wednesday and Thursday from 5.00pm to 5.30pm, with the Respondent Father to contact the Applicant Mother via her Skype address or mobile phone.

10. That whilst the child is in each parties respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the child and the parties shall ensure the proper administration of such medications or treatments performed by them.

11. That the parties keep each other advised of their current residential address and current phone numbers and that each party provide the other details of any proposed change to either their address or their telephone number in writing at least one week in advance of the same.

12. That neither party denigrate the other party, their family or any other person with whom they may live in a bona fide domestic relationship within the presence or hearing of the child or allow the child to remain in the presence or hearing of any person who is denigrating either party, their family or any other person with whom they may be living in a bona fide domestic relationship.

13. That in the event that either party wishes to take the child on an interstate holiday or weekend away, they shall provide the other party in writing at least three (3) weeks in advance of the same the itinerary, including flight details if applicable, accommodation details and a contact phone number.

14. That the Respondent Father be at liberty to contact the school from time to time for the purpose of arranging to have access to school newsletters, details of parent/teacher interviews, school photographs, and all such material as is normally forwarded to parents of enrolled students.

15. That the Respondent Father be at liberty to contact all medical and health care practitioners and specialists that the child may attend upon from time to time so as to enable him to obtain information pertaining to the child.

16. That the Applicant Mother do all acts and sign all documents necessary to ensure that the Respondent Father is specifically authorised to contact, speak with and obtain information from staff at the child’s school from time to time and attend any medical and health care practitioners and specialists that the child may attend upon from time to time.