McLaughlin & McLaughlin (No 3)
[2023] FedCFamC1F 568
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McLaughlin & McLaughlin (No 3) [2023] FedCFamC1F 568
File number(s): SYC 3839 of 2022 Judgment of: BAUMANN J Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where Senior Judicial Registrar decided to not make a determination – Hearing de novo – Interim parenting orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 13 June 2023 Place: Brisbane Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Santone Lawyers Counsel for the Respondent: Mr Maddox Solicitor for the Respondent: John & Co Lawyers ORDERS
SYC 3839 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MCLAUGHLIN
Applicant
AND: MS MCLAUGHLIN
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
School holidays
1.That the child, X born 2019 (“the child”) spend time with the parents during the New South Wales gazetted school holidays, with changeovers to occur at 6.00pm on the midpoint day and if two midpoint days, at 10.00am on the second midpoint day, as follows:
(a)At the conclusion of terms 1, 2 or 3:
(i)for the first half with the mother and the second half with the father in 2023 and each alternate year thereafter; and
(ii)for the first half with the father and the second half with the mother in 2024 and each alternate year thereafter;
(b)At the conclusion of term 4, on a week about basis:
(i)in 2023/24 and each alternate year thereafter, for the first week with the mother and each alternate week thereafter and the second week with the father and each alternate week thereafter; and
(ii)in 2024/25 and each alternate year thereafter, for the first week with the father and each alternate week thereafter and the second week with the mother and each alternate week thereafter.
2.That notwithstanding the orders above, the child shall spend time with the parents during the school holidays at the conclusion of term 3, 2023 (i.e. from 3.00pm Friday, 22 September 2023 and until 9.00am Monday 9 October 2023) as follows:
(a)With the mother from after school or 3.00pm Friday, 22 September to 6.30pm Tuesday, 26 September 2023;
(b)With the father from 6.30pm Tuesday, 26 September 2023 to 10.00am 4 October 2023; and
(c)With the mother from 10.00am on 4 October until before school or 9.00am on 9 October 2023,
and it is noted that these Orders are made to accommodate the father travelling with the child to Region K for a holiday with his extended family.
3.That the father shall facilitate a telephone call between the child and the mother every second day whilst on holidays in Region K, with such call to be initiated by the father at some time between 6.00pm and 8.00pm.
Special occasions
4.That the above orders be suspended on the following special occasions and the child will spend time with the parents as follows:
(a)At Christmas, in 2023 and 2024, with the father from 9.00am 24 December until 11.30am 25 December, and with the mother from 11.30am 25 December until 6.30pm 26 December, with the parents to collect the child at the commencement of their time with the child;
(b)On Mother’s Day, if not already spending time with the mother, from 5.00pm on the Saturday preceding Mother’s Day until before school or preschool or 9.00am the following Monday; and
(c)On Father’s Day, if not already spending time with the father, from 5.00pm on the Saturday preceding Father’s Day until before school or preschool or 9.00am the following Monday.
5.That for the purpose of these Orders, the gazetted New South Wales school term holidays and Christmas school holidays are deemed to commence at the conclusion of school on the last day of term and end on the first day of school term, and shall include public holidays and pupil free days at the end or beginning of each term.
Electronic communication with the child
6.That the parent who has the care of the child shall facilitate a telephone, Whatsapp or video call between the child and the other parent:
(a)on Thursdays and Saturdays at 6.30pm, or at such other time as agreed; and
(b)at any other reasonable time upon the request of the child.
Parental communication
7.That the parents shall keep each other informed of their current residence, phone number and email address and advise each other of any changes thereto within forty eight (48) hours.
8.That the parents shall communicate by way of text message, email or Whatsapp in respect of the child and in the event of emergency, by way of text or phone call.
Schooling and extra-curricular activities
9.That the parents authorise the principal and staff of the pre/schools that the child may attend from time to time to supply to the parents all school reports, school photographs, school counsellor notes, school events, memos, school newsletters and any other information in relation to the children that the parents may request from the schools.
10.That notwithstanding Order 9 hereof, if a parent who has the care of the child becomes aware of any additional pre/school events involving the child, sporting or extra-curricular events involving the child, and/or any social activities for the child, and where the other parents would not otherwise be aware of the said event or activity, the parents who becomes aware of the said event or activity shall inform the other parent about the event or activity in a timely manner so as to enable that parent to facilitate their and the child’s attendance at the event or activity.
11.That the parents each be permitted to attend any events involving the child that they are invited to by the pre/school, including sporting functions, concerts, assemblies, sports days, school fairs/fetes, school fundraisers and parent/teacher interviews and canteen duties, together with extra-curricular activities that the child participates in outside of pre/school.
Communication of medical information
12.That each of the parents shall:
(a)notify the other parent as soon as practicable of any major medical emergency, serious illness or injury involving the child, including details of any medical practitioner, hospital or medical practice attended;
(b)not later than forty eight (48) hours prior to the same, inform the other parent of any medical treatment being administered to the child and of any appointments which the child is to attend; and
(c)provide all authorities and directions necessary for all health professionals consulted by the child and all schools attended by the child to provide to each of the parents all information and material held by them in relation to the child.
Restraints
13.That each parent is restrained from discussing with the child the details of these proceedings, or any matters arising from the family law matter, with the exception of advising the child about the next occasion he will be going into the care of, or communicating with the other parent, in accordance with Court orders.
14.That each parent is restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household in the presence or hearing of the child and shall also use their best endeavours to ensure that third parties do not do so.
15.That without admissions, each parent is restrained from physically chastising the child.
Parenting courses
16.That unless they have already done so, within fourteen (14) days, each of the parents enrol in a Parenting After Separation Course and shall provide the other parent with evidence of completion of the Course within six (6) months.
17.That unless they have already done so, within twenty eight (28) days of the date of these Orders, the mother shall complete the online course, “Young Children in Divorce and Separation”.
18.That pursuant to s 121 of the Family Law Act 1975 (Cth), the parties be granted leave to provide a copy of the report prepared by Ms L to any Family Dispute Resolution Practitioner the parties may attend upon in these proceedings.
THE COURT ORDERS UNTIL FURTHER ORDER:
19.That the child live with the mother when not spending time with the father.
20.That the child live with the father during school terms as follows, unless otherwise agreed between the parents in writing:
(a)Each alternate weekend commencing Thursday, 22 June 2023 from 6.00pm until before day care on the Monday, and if the child is not at daycare, then until 6.00pm Monday; and
(b)Each alternate week commencing from 8.00am Wednesday 28 June 2023 until before daycare on Friday.
21.That changeovers that do not occur at daycare under these Orders shall occur, unless otherwise agreed, at the McDonald’s restaurant closest to the child’s daycare, being BP Suburb N (M Street, Suburb N).
22.That these proceedings remain listed for Directions Hearing before a Judicial Registrar at 10.00am on 10 July 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Sydney, at which time one of the issues likely to be requiring a determination is whether an expert family report (privately funded) be ordered or whether a report pursuant to s 62G of the Family Law Act 1975 (Cth) be ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McLaughlin & McLaughlin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X, born 2019, now aged four years, is the only child of a brief relationship between the Applicant father, Mr McLaughlin who is currently 39 years of age, and the Respondent mother, Ms McLaughlin who is currently 37 years of age. They were married in 2019 and finally separated in November 2021 when X was only two years of age. The procedural history of the matter is somewhat confusing. Initially the father filed an Application for property division in June 2022 in Division 2 but those proceedings, at that stage, were transferred to Division 1 to be included in the National Arbitration List. Subsequently, on 5 October 2022, the father amended his Application (for property orders only) by including parenting relief. On 11 November 2022, the father sought interim orders by way of Application in a Proceeding.
The mother responded to the Application in a Proceeding in January 2023 and, by a process of case management and agreement, a short form report was prepared by Psychologist Ms L on 3 April 2023 which I have read. It was not a family report nor was it intended to be a family report. Ultimately the matter came before a Senior Judicial Registrar on 26 April 2023 when, for reasons apparently delivered, the Senior Judicial Registrar stayed the pending interim applications until the parties engaged in private mediation.
The father, on 11 May 2023, filed a Review Application against the Orders made by the Senior Judicial Registrar. Shortly thereafter, on 12 May 2023, Wilson J registered an arbitral award which, without knowing the full extent of the terms of that award, brought the property proceedings to an end. On 8 June 2023, as invited by the Senior Judicial Registrar to do, the parties attended the private mediation in which they were able to reach some interim orders by consent which have been produced to the Court and dated 8 June 2023.
As a result of this history the parenting proceedings, which I observe are really not of the nature that would generally require adjudication in Division 1, came before me via the Review Application. That of course enlivened my jurisdiction to make interim parenting orders, such hearing being a hearing de novo. At the commencement of the hearing earlier this week, Counsel for the father, Ms Cantrall, and Counsel for the mother, Mr Maddox, made it clear that it was in the interests of the child, the parties and generally justice, if I did determine, for the first time since proceedings have actually been filed for parenting back in October 2022, interim parenting arrangements rather than, as perhaps was an option, adjourning the matter for determination by a Senior Judicial Registrar who clearly has delegated authority to make such a decision. Accordingly, the reasons which follow relate to the interim parenting decision.
The principles to be applied in an interim parenting decision are well known and do not require significant statement. Like all parenting cases, the child’s best interests is the Court’s paramount consideration and, in determining those interests, the Court will generally consider, not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those persons significant to them but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3). Authorities like Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637 make clear the pathway which needs to be adopted in the truncated hearing conducted, as this case was, on the papers for an interim parenting decision where findings cannot generally be made about disputed facts. In particular, the decision in Banks makes it clear that not every consideration, additional or primary, set out in the Act must be referred to.
The current arrangements are particularised at paragraph 19 of the father’s affidavit filed 24 April 2023 as follows.
Week 1
•Monday: [Ms McLaughlin] drops off [X] to day care and picks him up from day care.
•Tuesday – [Ms McLaughlin] drops off [X] to day care and I pick him up from day care. He remains in my care overnight;
•Wednesday: [X] is in my care and is collected by [Ms McLaughlin] from my residence at 6:30 pm.
•Thursday: [Ms McLaughlin] drops off [X] to my residence at 8.00am and picks him up from my residence at 6:30 pm.
•Friday: [Ms McLaughlin] drops [X] to day care and collects him from day care.
•Saturday - Sunday: [Ms McLaughlin] drops off [X] to my residence at 1:00 pm. [X] spends overnight with me and [Ms McLaughlin] collects him from my residence at 1:00 pm on Sunday;
Week 2
•Monday: [Ms McLaughlin] drops off [X] to day care and picks him up from day care.
•Tuesday: [Ms McLaughlin] drops off [X] to day care and collects him from day care.
•Wednesday: [Ms McLaughlin] drops off [X] to my residence at 8:00 am. [Ms McLaughlin] picks up [X] from my residence at 6:30 pm.
•Thursday: [Ms McLaughlin] drops off [X] to my residence at 8:00 am. [Ms McLaughlin] picks up [X] from my residence at 6:30 pm;
•Friday/Saturday: [Ms McLaughlin] drops off [X] to day care. I pick up [X] from day care and he spends overnight with me. [Ms McLaughlin] collects [X] from my residence at 1:00 pm on Saturday.
•Sunday: [X] spends the entire day with [Ms McLaughlin].
One only needs to look at the arrangements put in place, in a sense voluntarily (that is without court order), but with at least some agreement by the parties to note the following matters:
(a)The number of changeovers and necessary adjustments this child needs to make transitioning from one parent’s care to the other appears to be excessive;
(b)The interruption to the time the child spends with the father is to apparently avoid the child spending significant overnight time with the father, for example in 14 a day cycle, only three nights are spent in the father’s care yet, on many of these occasions, he has adjoining days;
(c)With the child at day care on Monday, Tuesday and Friday each week, days when the child is not in day care, each Wednesday and Thursday, are currently spent with the father which maximises the opportunities for him to spend extensive day time with the child. It is not clear how these somewhat chaotic arrangements are shaped by the parties’ work commitments at this time which may be fluid. Certainly they are, it seems on the evidence, in the father’s case;
(d)Neither party has a full uninterrupted period over a weekend with X, which I regard as not ideal when:
(a)in the father’s home, every second weekend his son, J, aged 9, from an earlier relationship is in his care, the next weekend being and including Saturday, 24 June 2023; and
(b)in the mother’s home every second weekend her daughter, G, also aged 9 years, from an earlier relationship is in her care, the next weekend being and including Saturday, 17 June 2023.
I understand that these arrangements with G’s father are currently the result of orders that may be under review in some way.
Now, before looking at the parents’ competing proposals, noting agreement has been reached about the sharing of school holidays (even now before X is attending school) which he is likely to begin formally in 2025, I indicate that, in the best interests of X, some sensible parenting arrangement should, in my view, include:
(a)less changeovers and transitions for this child to navigate;
(b)maximising the child spending available time when not at day care with a parent who is available;
(c)a clearer routine which, where possible, facilitates changeovers at daycare so as to reduce opportunities for X to be exposed to parental conflict and, when not at day care, at a public location; and
(d)allowing the child to spend a full weekend with each parent so as to provide him with an opportunity to build a relationship with his siblings, J and G, when they are in the care of their parent.
In circumstances where the mother believes, subject to the property award being given effect, that she may move from her current rented accommodation to another area in Sydney, it is simply too speculative to try and make orders as to what might be in the child’s best interests if she chose to move. There is no clarity about when that may occur or to what region it may occur with certainty. I accept that may be a matter for another day. However in circumstances where the presumption of equal shared parental responsibility will continue to apply (Mr Maddox of Counsel making it clear that his client no longer presses for an interim order for sole parental responsibility) the parents will have to consult and seek to agree if a change to the child’s current day care arrangements are to alter. This is a warning to the parents that neither of them has the right to unilaterally alter those arrangements.
At the current time both parents live proximate to the child’s day care. Clearly there is a major long-term issue for X relating to his education, and perhaps social development, which daycare and, more particularly, which school he may attend. The conflict or lack of effective communication between these parents at the moment suggests sadly there is a strong likelihood that if the mother decides to move her residence then she may wish to change the child’s daycare provider and that may create opposition from the father. They are matters that I cannot resolve today on the evidence because of the uncertainty of timing and where any future residence the mother chooses might be located.
COMPETING PROPOSALS
The father submits that the interim orders set out in the Review Application filed by him (which are reproduced as Appendix One to these Reasons) for time during non-school holiday periods, are in X’s best interests. The essential elements of this proposed regime include:
(a)the child is with a parent each alternate weekend for the full weekend;
(b)as now, when the child is not at daycare on Wednesday and Thursday, he is in the care of the father; and
(c)changeovers are reduced in number to eight over the 14 days; and
(d)the child would spend seven nights with each parent each 14 day cycle.
This represents an increase in time, particularly nights, for the child from the current arrangements earlier alluded to.
The mother submits that the interim orders as set out in her case outline document filed 12 June 2023 (which are reproduced as Appendix Two to these Reasons) for time during the non-school holiday periods are in X’s best interests. The essential elements of the mother’s proposed regime, which reduces the number of changeovers as well, is that:
(a)effectively the child will be in the father’s daytime care each Wednesday and Thursday when he is not at his daycare provider; and
(b)each alternate weekend the child will spend a full weekend in the mother’s care, presumably to allow X and G to spend time together, but in the alternate weekend J and X would only be together from 1.00pm Saturday to 1.00pm Sunday.
Counsel for the father says, although the number of nights the child would spend with the father on the mother’s proposal increases by one night, the amount of time the child spends with the father actually reduces on the mother’s proposal.
DISCUSSION
Although the child impact report of Ms L opines the Court should be cautious about changing the current arrangements, I was somewhat surprised that the expert did not seem to engage in what seems, to me at least, to be the obvious issues that arise from the frequent changeovers that are occurring at present, other than to recommend that because of the potential for X to be exposed to parental conflict, changeovers should occur either at a public location or the child’s daycare. I agree that such changeovers in this way is desirable.
Both parents, after some form of mediation, seek further interim consent orders be made in respect of:
(a)school holidays essentially in unsupervised blocks of at least one week duration;
(b)special occasions, telephone time, communication and restraints from discussing proceedings with the child and making negative comments about the other parent; and
(c)both parents completing a Parenting After Separation course and the online course described as “Young Children in Divorce and Separation”.
The issues I need to decide essentially is the time the child will spend with each parent and where changeovers should occur. It is to be hoped that at least the arrangements agreed and those now ordered, together with the insight hopefully gained from the courses they will undertake, will improve the parents capacity to communicate effectively. That certainly of course is the design of the courses.
No significant risk issues, other than the parental conflict, arise on the current evidence. To that extent, X is indeed a fortunate little boy where the capacity of each of his parents is not compromised by illicit drug use, excessive alcohol use, diagnosed serious mental illness, allegations of abuse or neglect, including sexual abuse.
CONCLUSION
Both parents, on all the evidence, currently have a meaningful relationship with X. Such is observed by the report of Ms L. The parents are different parents with different life experiences and, not surprisingly, they parent differently. However, they both have demonstrated to date, on the evidence, a capacity and attitude to parenting X adequately and competently. What these parents, who separated in November 2021 after a short relationship, have demonstrated to date however is a difficulty to “co-parent” for which they blame the other parent. Their final separation occurred when X was only two years of age. They have tried to negotiate arrangements both are happy with but the dynamics of their adult relationship have made reaching complete agreements difficult to achieve. The father asserts, through his Counsel, that his “agreement” with the current arrangements came about because that was the best he could achieve in negotiations with the mother. I do not accept that but it is again reflective of the way these parties say they have come to the positions they advance today.
The orders which I propose to pronounce today, after hearing further submissions, intend to include that the parties will have a further Case Management Hearing before a Judicial Registrar in Sydney rather than the expedited Case Management Hearing already set for July 2023. I regard as in the best interests of the child, now that more structured arrangements will be put in place today by the Court, for the first time, to allow the parents to have a little longer to let these arrangements (including those agreed to by consent for holidays etcetera) to take effect. I also accept that the future arrangements could become challenging if the mother, with the benefit of any award as to property alteration, does decide to move.
I caused yesterday my associate to circulate to the parties a potential order subject to hearing further submissions today. That order effectively:
(a)Reduced the number of changeovers while seeking to have the majority of changeovers at child care.
(b)Permitting the child to be in the care of a parent each alternate weekend to enable X to spend time with his sibling.
(c)To incorporate what both parties seem to support, namely that when X is not at his regular daycare, each Wednesday and each Thursday, he spends day time with the father.
(d)I appreciate that the regime means that the child will effectively spend each alternate week from before day care Friday until before day care Wednesday with mum, a period of five nights, but I would not interrupt that block of time to enable the child to spend time with the father.
(e)This means the mother, each week, will be obliged to prepare and changeover the child with the father each Wednesday morning. The father, when the child is in his care for the weekend, will be responsible for X attending day care on that Friday and spend two days with him.
(f)Therefore I regard the changeover at 5 pm on a Sunday for the weekend that the child spends with the father as appropriate for a child of this age so as to allow the mother to prepare the child for the start of the next week of day care.
(g)If one was merely to look at the nights the child spends with a parent mathematically, the order provides for six nights with the father and eight nights with the mother in a regime of four plus three plus two plus five creating the changeovers to which I have already referred.
There was a confusion at the time of the submissions earlier in the week about where changeover would occur if not at childcare. The mother suggested a McDonald’s store. The draft order which I circulated to the parties nominated McDonald’s restaurant Suburb P which, according to internet searches conducted by my associate (which I accept is not evidence) was the closest McDonald’s restaurant to the child’s current day care. I accept that the parties may have other views on where changeover should occur.
As a result of these reasons and subject to further submissions on the form of order that was circulated yesterday, I will pronounce orders.
ADDITIONAL REASONS DELIVERED EX TEMPORE ON 16 JUNE 2023
Arising from the draft order that was circulated, and leaving aside agreements as to where changeover should occur; that the next date before a Judicial Registrar should be preserved and a correction to some spelling and the commencement time for the alternate weekend with the father, the solicitor for the father, having the opportunity to receive instructions, has pressed strongly for the father’s time with X to occur every Wednesday and Thursday when he is not at day care, including overnight. The current arrangements in place have the father spending every Wednesday and Thursday but not overnight with the father. This is an interruption which I do not regard in his best interests which is one of the things I have been seeking to change.
Ms Santone, on behalf of the father, drew to my attention that the mother has not, she says, ever offered to have the child on a Wednesday and Thursday and that the father has, over the last six months at least, therefore developed a regime of activities for the child, which he does set out in his affidavit, which includes an extracurricular activity on Wednesday. She says that it would be disruptive and make a change to a settled arrangement for X, who is used to having every Wednesday and Thursday with his father, to after those days.
Mr Maddox view, on behalf of the mother, is available to have some time with the child when he is not at day care. It is true that she does not provide the particulars of how she works from home and Ms Santone makes the point that merely working from home does not mean that the child will be actively engaged by the mother.
The submissions I have heard, which are obviously on instructions, again reflects how, in my view, these parties have, to some degree, fell into the trap of focusing on what they want rather than what is in the child’s best interests. They do not, in my view, fully appreciate but they should because they each have a nine year old child that they have parented and are parenting. There will be a significant change for X when he is in school five days a week. They will have no flexibility about time during the day. Whilst I accept that the father has, in this low trust/high conflict environment, no real satisfaction that the mother will give X the same quality of time that he provides X if the child is not in his care on a Wednesday and Thursday, I am not so convinced. The fact that it has not happened yet does not mean it cannot, in the child’s best interests, happen in the future.
Having heard the submissions I proposed to make an order in these terms, that the child live with the mother when not spending time with the father, that is on an interim basis; the child live with the father during school terms as follows unless otherwise agreed between the parents in writing:
(a)each alternate weekend, commencing at 6.00pm Thursday until before day care on Monday and if the child is not at day care then until 6.00pm Sunday – that will commence on 22 June; and
(b)each alternate week from 8.00am Wednesday to before day care Friday.
I further order the changeovers that do not occur at day care under these Orders shall occur, unless otherwise agreed, at the BP service station, M Street, Suburb N. I direct that these proceedings remain listed for a Directions Hearing before the Judicial Registrar at 10.00am on 10 July 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Sydney, at which time one of the issues likely to be requiring a determination is whether an expert family report, privately funded, be ordered or whether a report, pursuant to s 62G of the Act, be ordered.
I will also make the correction to proposed order 14, brought to my attention by Ms Santone.
The complete suite of Orders which appear at the commencement of these published Reasons are in X’s best interests at this time.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 7 July 2023
APPENDIX ONE
Live With
1.That the child X, born 2019 (the child) shall live with the parties during the school terms, on a fortnightly cycle as follows:
a)With the Mother, from after pre/school (or 6.30pm if not in pre/school) Monday in week one, until after pre/school (or 6.30pm if not in pre/school) Tuesday;
b)With the Father, from after pre/school (or 6.30pm if not in pre/school) Tuesday until 6.30pm Thursday;
c)With the Mother, from 6.30pm Thursday until before pre/school (or 3pm if not in pre/school) Friday;
d)With the Father, from after pre/school (or 3pm if not in pre/school) Friday until before pre/school (or 6.30pm if not in pre/school) Monday in week two;
e)With the Mother, from after pre/school (or 6.30pm if not in pre/school) Monday until before pre/school (or 6.30pm if not in pre/school) Tuesday;
f)With the Father, from after pre/school (6.30pm if not in pre/school) Tuesday until 6.30pm Thursday;
g)With the Mother, from 6.30pm Thursday until before pre/school (or 8am if not in pre/school) the following Monday;
2.For the purpose of interpreting these orders, week one of the fortnightly cycle will be deemed to have commenced on Monday 24 April 2023 and week two will commence on Monday 1 May 2023 and it is NOTED that the Father’s weekend time will commence on Friday 28 April 2023 so that X and his son J’s weekends together coincide.
School Holidays
3.That the parties shall spend time with the child during the NSW Gazetted School holidays, with changeovers to occur at 6pm on the midpoint day and if two midpoint days, at 10am on the second midpoint day, as follows:
a)At the conclusion of Term 1, 2 or 3:
1.For the first half with the Mother and the second half with the Father in 2023 and each alternate year thereafter; and
2.For the first half with the Father and the second half with the Mother, in 2024 and each alternate year thereafter;
b)At the conclusion of term 4, on a week about basis:
1.In 2023/24 and each alternate year there after, for the first week with the Mother and each alternate week thereafter and the second week with the Father and each alternate week thereafter;
2.In 2024/25 and each alternate year thereafter, for the first week with the Father and each alternate week thereafter and the second week with the Mother and each alternate week thereafter.
4.That notwithstanding the orders above, the child shall spend time with the parties during the school holidays at the conclusion of term 3, 2023 (ie, from 3pm Friday 22 September 2023 and until 9am Monday 9 October 2023) as follows:
a)With the mother, from after school or 3pm Friday 22 September to 6.30pm Tuesday 26 September 2023;
b)With the father, 6.30pm Tuesday 26 September 2023 until 10am 4 October 2023; and
c)With the mother, from 10am on 4 October until before school or 9am on 9 October 2023;
And it is NOTED that these orders are made to accommodate the father travelling with the child to Region K for a holiday with his extended family.
Special Occasions
5.That the above orders be suspended on the following special occasions and the child will spend time with the parties as follows:
a)At Christmas:
i.In 2023 and each alternate year thereafter, with the Mother from 9.00am 24 December until 1.00pm 25 December and with the Father from 1.00pm 25 December until 6.30pm 26 December;
ii.In 2024 and each alternate year thereafter, with the Father from 9.00am 24 December until 1.00pm 25 December and with the Mother from 1.00pm 25 December until 6.30pm 26 December;
b)For the child’s birthday, with the parent who is not otherwise spending time with the child pursuant to these orders:
i.On a preschool/school day from 3.00pm until 6.30pm;
ii.On a non-school/preschool day, from 2.00pm until 8.00pm;
c)For J’s birthday, with the father if he is not otherwise spending time with the child pursuant to these orders:
i.On a preschool/school day from 3.00pm until 6.30pm;
ii.On a non-school/preschool day, from 10.00am until 8.00pm;
d)For G’s birthday, with the mother if she is not otherwise spending time with the child pursuant to these orders:
i.On a preschool/school day from 3.00pm until 6.30pm;
ii.On a non-school/preschool day, from 10.00am until 8.00pm;
e)On Mother’s Day, if not already spending time with the Mother, from 5.00pm on the Saturday preceding Mother’s Day until before school or preschool or 9.00am the following Monday; and
f)On Father’s Day, if not already spending time with the Father, from 5.00pm on the Saturday preceding Father’s Day until before school or preschool or 9.00am the following Monday.
6.That for the purpose of these Orders, the school term holidays and Christmas school holidays are deemed to commence at the conclusion of school on the last day of term and end on the first day of school term, and shall include public holidays and pupil free days at the end or beginning of each term.
Changeover
7.That changeovers shall occur at pre/school and in the event that the child is not at pre/school, the parent who has the child in their care shall return him to the residence of the other parent at the conclusion of their time with him pursuant to these orders.
Telephone and Electronic Communication with the Child
8.That the parent who has the care of the child shall facilitate a telephone, Whatsapp or video call between the child and the other parent:
a)On Thursdays and Saturdays at 6.30pm, or at such other time as agreed; and
b)At any other reasonable time, upon the request of the child.
Communication
9.The parents shall keep each other informed of their current residence, phone number and email address and advise each other of any changes thereto within 48 hours.
10.That the parties shall communicate by way of text message, email or Whatsapp in respect of the child and in the event of emergency, by way of text or phone call.
Schooling and Extra-curricular activities
11.That unless otherwise agreed in writing, the parties shall sign all documents and do all things necessary to facilitate the ongoing enrolment and attendance of the Child at Q Preschool, at least 3 days per week.
12.The parents authorise the Principal and staff of the pre/schools that the child may attend from time to time to supply to the parents all school reports, school photographs, school counsellor notes, school events, memos, school newsletters and any other information in relation to the children that the parents may request from the schools.
13.Notwithstanding the order immediately above, if a parent who has the care of the child becomes aware of any additional pre/school events involving the child, sporting or extra-curricular events involving the child, and/or any social activities for the child, and where the other parents would not otherwise be aware of the said event or activity, the parents who becomes aware of the said event or activity shall inform the other parent about the event or activity in a timely manner so as to enable that parent to facilitate their and the child’s attendance at the event or activity.
14.The parents each be permitted to attend any events involving the child that they are invited to by the pre/school, including sporting functions, concerts, assemblies, sports days, school fairs/fetes, school fundraisers and parent/teacher interviews and canteen duties, together with extra-curricular activities that the child participates in outside of pre/school.
Communication of Medical Information
15.That each of the parties shall:
a)Notify the other party as soon as practicable of any medical emergency, serious illness or injury involving the child, including details of any medical practitioner, hospital or medical practice attended;
b)Not later than forty-eight (48) hours prior to the same, inform the other party of any medical treatment being administered to the child and of any appointments which the child is to attend;
c)Provide all authorities and directions necessary for all health professionals consulted by the child and all schools attended by the child to provide to each of the parties all information and material held by them in relation to the child.
Restraints
16.Each party is restrained from discussing the details of these proceedings, or any matters arising from the family law matter with the child, with the exception of advising the child about the next occasion that they will be going into the care of, or communicating with the other parent, in accordance with Court orders.
17.Each party is restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household in the presence or haring of the child and shall also use their best endeavours to ensure that third parties do not do so.
18.Without admissions, each party is restrained from physically chastising the Child.
19.That the mother is restrained from relocating the residence of the Child more than 15 kilometres from the residence in Suburb C, being B Street, Suburb C.
Parenting Courses
20.That within 14 days the parties enrol in a Parenting After Separation Course and shall furnish the other party with evidence of completion of said course within 6 months.
21.That within 28 days of the date of these orders, the mother shall complete the online course, “Young Children in Divorce and Separation”.
Appointment of Expert
22.Pursuant to Part 7 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that TBA be appointed as a Single Expert Witness (“the Expert”) to enquire into and report upon, by way of family report, matters relating to the welfare of the Child, X, born 2019 and it is NOTED that TBA has availability to conduct interviews on TBA.
23.In preparing their Report to the Court, the Expert is requested to consider the following matters:
a)Any agreement reached between the parties;
b)identification of key issues requiring resolution;
c)any views expressed by the child and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
d)the impact of the issues / dispute before the Court;
e)any other matters that the Expert considers important to the welfare or best interests of the child.
24.That the parties shall facilitate the preparation of the Report including attending on and arranging for the child to attend upon the Expert as directed by that person.
25.That for the purposes of preparing the Expert Report, the Parties be granted leave to provide to the Expert:
a)a copy of the material produced under the section 69ZW and section 245D orders, together with material produced by way of subpoena; and
b)documents filed by them in these proceedings.
26.That parties share the cost of the preparation of the Expert Report.
27.IT IS REQUESTED THAT the Expert forward the Report directly to the Court (by way of email to tba@...) for release pursuant to Rule 7.07 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
APPENDIX TWO
1.That consent orders be made in accordance with the agreed short minutes of orders dated 8/6/23.
2.That the mother have sole parental responsibility for X born 2019.
3.That X live with the mother.
4.That X spend time with the father in school terms in Week 1 from 8am Wednesday to 6.30pm Thursday, and in Week 2 from after preschool Tuesday to 6.30pm Wednesday, 8am to 6.30pm Thursday, and 1pm Saturday to 1pm Sunday.
5.That changeovers occur at a location equidistant from the homes of the mother and father, provided it is equipped with CCTV.
6.That the father be restrained from discussing these proceedings with X or with any person not directly associated with these proceedings, including but not limited to the father of G.
7.That the father communicate with X by telephone or video as agreed but if not agreed between 6pm and 7pm each Monday in school terms, with the father to initiate the call and the mother do all things to facilitate the call and give X privacy
8.That each party be restrained from taking X interstate or overseas without the written consent of the other party, such consent to be obtained at least 21 days prior to travel, with such consent not to be unreasonably refused.
9.That the father pay the mother’s costs of this Review.
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