Minjarez and Minjarez

[2015] FamCA 603

FAMILY COURT OF AUSTRALIA

MINJAREZ & MINJAREZ [2015] FamCA 603

FAMILY LAW – CHILDREN – BEST INTERESTS – SPEND TIME WITH – COMMUNICATE WITH – Where the mother is the primary carer for the children – Where neither party proposed an equal time arrangement – Orders made allowing the children to transition to an arrangement where they spend time with the father during weekends, weekdays, special occasions and school holiday periods.

Family Law Act 1975 (Cth)

APPLICANT: Ms Minjarez

RESPONDENT: Mr Minjarez

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 565 of 2012

DATE DELIVERED: 24 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 & 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Murphy with Mr Lawrence

SOLICITOR FOR THE APPLICANT: Rebecca Bailey & Associates

COUNSEL FOR THE RESPONDENT: Ms Humphreys

SOLICITOR FOR THE RESPONDENT: Bailey Mullard Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS NOTED

1. That the father’s Contravention Application filed 1 May 2015 is withdrawn and dismissed.

IT IS ORDERED BY CONSENT

1. That all previous parenting orders in relation to the children, B, born … 2007, and C, born … 2009, (“the children”) be discharged.

2. That the parents have equal shared parental responsibility in relation to the children.

3. That the children live with the Mother.

4. Both parents are restrained from discussing any parenting arrangements regarding the children’s time between the households with each other or third parties at the time of changeover of the children from one parent to the other.

5. That each parent be entitled to attend all events involving the children including, but not limited to:-

   (a)       sporting functions;

   (b)       extra-curricular activities that allow for parental attendance or participation;

   (c)       school functions and events that allow for parental attendance or participation;

6. AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children's transportation to and from the event unless otherwise agreed on between the parents.

7. That each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:-

   (a)       any medical problems or illness suffered by the children whilst in the care of either parent, and this shall occur no later than changeover of the children;

   (b)       any medication and dosage that has been prescribed for the children, and this shall occur no later than changeover of the children;

   (c)       any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (d)       any significant social, school or religious functions which the children are to attend;

   (e)       their residential address and telephone contact number;

   (f)       the full name and date of birth of any person living with either parent at the time the children are living with or spending significant time with them.

   (g)       any other matter relevant to the welfare of the children.

8. In the event that the children require urgent medical treatment then the other parent is to be informed immediately.

9. Each parent is to be permitted to liaise directly with the children’s school, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress and that both parents are to authorise the school, sporting bodies and/or other organisations to facilitate this.

10. Both parents are hereby authorised to receive any information from the children’s school including but not limited to: copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend.  If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the children to ensure that the school forwards these items to both parents.

11. That both parents shall do all things necessary to ensure that the children's school enrolment is not changed without the consent of the other parent.

12. That each parent refrain from making critical or derogatory remarks about the other parent or members of the other parent's family in the presence or within hearing of the children and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent or members of other parent's family in the presence or within hearing of the children.

13. That the Father continue to undertake therapy with Mr F, Psychologist, for as long as Mr Hudd deems appropriate in order to address the matters set out in para 3 of Dr E’s report dated 21 December 2014.

14. For the purpose of facilitating changeover and unless otherwise specified in these Orders, the parties or their nominee shall utilise the children’s school wherever possible and otherwise to the parties’ respective residence as follows unless otherwise agreed in writing:

    (a)       During school term, the Father or his nominee shall collect the children at the commencement of time from the Mother if the children are not otherwise at school and shall return the children to the Mother or her nominee at the conclusions of time; and

    (b)       During school holidays and on special occasions, the Father or his nominee shall collect the children at the commencement of time from the Mother or her nominee and the Mother or her nominee shall collect the children from the Father or his nominee at the conclusion of time.

15. In the event that either parent proposes to travel internationally with the children (or either of them), the parent proposing to travel shall provide by email to the other parent no less than 2 months prior to departure except in the case of emergency:

    (a)       Proposed dates of departure and return;

    (b)       Proposed destination(s);

    (c)       A copy of the return air tickets for the children (or relevant child) as soon as available;

    (d)       A copy of the travel itinerary for the children (or relevant child) and

    (e)       Contact details for the children (or relevant child) whilst overseas.

16. That both parents be permitted to travel internationally with the children (or either of them) provided that the travelling parent has the written consent of the other parent, and such consent will not be unreasonably withheld.

17. That the Mother continue to undertake therapy with Mr K, Psychologist, for as long as Mr K deems appropriate in order to address the matters set out in para 102 of Dr E’s report dated 10 July 2014.

18. For the purposes of Order 18, the Independent Children’s Lawyer has leave to provide Mr K with:

    (a)       A sealed copy of these Orders;

    (b)A copy of Dr E’s reports dated 16 June 2012, 10 July 2014 and 21 December 2014, and

    (c)       Dr L’s report dated 23 October 2014.

19. That within 28 days each party pay to Legal Aid NSW the sum of $1,072.50 being his/her share of the costs of the Independent Children’s Lawyer in these proceedings. 

IT IS ORDERED

1. That the children spend time with the Father as follows:

   (a)       From the date of these Orders until the conclusion of Term 4, 2015:

   (i)On each alternate weekend from after school on Friday (or 8 am on a non-school day) until 7 pm on Sunday;

   (ii)On each Tuesday from after school (or 8 am on a non-school day) until 7 pm; and

   (iii)On each Wednesday from after school (or 8 am on a non-school day) until the conclusion of the children’s swimming class (or 7 pm if the children are not attending swimming).

   (b)       During the school holiday period at the conclusion of Term 4, 2015:

   (i)On each alternate weekend from 8 am Friday until 7 pm on Sunday (continuing the fortnightly cycle in Order 21 (a) (i)), except on Friday 1 January 2016 when the time will commence at 4 pm instead of 8 am;

   (ii)In each week from 8 am on Tuesday until the conclusion of the children’s swimming class on Wednesday (or 7 pm if the children are not attending swimming), except that time shall be suspended from 8 am on Tuesday 26 January 2016 until 7 pm on Wednesday 27 January 2016; and

   (iii)From 11 am on Christmas Eve until 11 am on Christmas Day.

   (c)       During Terms 1 and 2, 2016:

   (i)On each alternate weekend from after school on Friday until 7 pm on Sunday (continuing the fortnightly cycle in Order 21 (a) (i) ); and

   (ii)In each week, from after school on Tuesday until the commencement of school on Wednesday.

   (d)From the commencement of Term 3, 2016 and thereafter during all school terms:

   (i)On each alternate weekend from after school on Friday until the commencement of school on Monday commencing on the first weekend of each school term; and

   (ii)In each week from after school on Tuesday until the commencement of school on Wednesday.

2. That from the commencement of Term 1, 2016 the Orders in relation to the children’s time with the Father during school terms are suspended during school holiday periods.

3. That from the commencement of Term 1, 2016 the children spend time with the Father during school holiday periods as agreed between the parents in writing, but failing agreement as follows:

   (a)       During the school holiday period at the conclusion of Term 1, 2016:

   (i)From after school on the last day of term until 7 pm on the Tuesday in the first week of the school holidays (four nights); and

   (ii)From 8 am on the Tuesday in the second week of the school holidays until 7 pm on Wednesday (one night). 

   (b)       During the school holiday period at the conclusion of Term 2, 2016:

   (i)From after school on the last day of term until 7 pm on the Wednesday in the first week of the school holidays (five nights); and

   (ii)From 8 am on the Tuesday in the second week of the school holidays until 7 pm on Wednesday (one night). 

   (c)       During the school holiday period at the conclusion of Term 3, 2016:

   (i)From after school on the last day of term until 7 pm on the Friday in the first week of the school holidays (seven nights).

   (d)       During the school holiday period at the conclusion of Term 4, 2016:

   (i)From 11am on Christmas Day until 7 pm on 31 December 2016;

   (ii)From 8am on 8 January 2017 to 7 pm on 15 January 2017; and

   (iii)From 8am on 22 January 2017 until 7 pm on 29 January 2017.

   (e)From the school holiday period at the conclusion of Term 1, 2017 and thereafter during all school holiday periods:

   (i)For the first half of each of the Term 1, 2 and 3 school holiday periods; and

   (ii)For one half of the Term 4 school holiday periods being the first half in odd numbered years and the second half in even numbered years(except as provided in Order 24 in relation to Christmas Eve, Christmas Day and Boxing Day). 

   (f)       For the purposes of these Orders:

   (i)The last day of the school term is considered to be the first day of the school holiday period and the day immediately before the first day of the following school term is considered to be the last day of the school holiday period.  

   (ii)Pupil free days are to be included in school holiday periods.

   (iii)In the event that the total number of days in a school holiday period is an even number then the first half shall conclude at 7 pm on the day that is one half of the total number of days.

   (iv)In the event that the total number of days in a school holiday period is an odd number then the first half shall conclude at 7 pm on the middle day.

   (v)In the event that the Father’s time with the children occurs during the second half of a school holiday period, his time will conclude at 7 pm on the day before the last day of that school holiday period.

   (vi)In the event that the children spend the first half of any school holiday period with the father then alternate weekend time commences on the first weekend of the school term.

   (vii)In the event that the children spend the second half of any school holiday period with the father then alternate weekend time commences on the second weekend of the school term.

   (g)       At any other time as agreed between the parents.

4. That the children shall spend time with the Father on further special occasions as follows:

   (a)From 7 pm on Easter Saturday to 7 pm on Easter Monday in 2017 and each alternate year thereafter;

   (b)From after school (or 8 am if the children are not at school) on the Thursday preceding Good Friday to 7 pm on Easter Saturday in 2018 and each alternate year thereafter;

   (c)From 11 am on Christmas Eve to 11 am on Christmas Day in 2017 and each alternate year thereafter;

   (d)From 11am on Christmas Day to 5 pm on Boxing Day in 2018 and each alternate year thereafter;

   (e)In the event that the children’s birthdays and the father’s birthday fall on a day when the children would not be with the father pursuant to these Orders, from after school until 7pm on each of those days.

(24)A  That notwithstanding any other order, the children spend time with the mother in odd numbered years commencing 2017, from 11am on Christmas Day until 5pm on Boxing Day.

1. That in the event that the children would, in accordance with these Orders, spend time with the Father on the weekend on which Mothers’ Day falls, then time on that weekend is suspended.

2. That in the event that the children would not, in accordance with these Orders, spend time with the Father on Fathers’ Day then the children shall spend time with the Father on the weekend of Fathers’ Day and on the times applicable to weekends in that period.

3. That for the purpose of communicating information between the parents the Father and Mother shall communicate by SMS text message, telephone or email and shall be restrained from using either of the children as a messenger. The parents shall communicate by telephone only on such occasions where the children are not present to hear their conversation and both parents are to refrain from raising their voice, belittling or being critical of the other parent.

4. That on any weekend when the children are living with the Father the Father shall ensure that the children telephone the Mother on Saturday evening.

5. That in any school holiday period when the children are living with their Father, the Father shall ensure that the children telephone the Mother every second evening if they have not spent time with their Mother during that day.

6. That both parents ensure that the children attend upon one General Practitioner (being Dr M) for the purposes of general medical treatment, unless Dr M is unavailable or in the case of medical emergency.

7. That within 28 days the Mother pay to the Father one half of the cost of Dr L’s report dated 23 October 2014.

8. That the Mother is entitled to possession of the children’s passports until they each reach 18 years of age.

9. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Minjarez & Minjarez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 565  of 2012

Ms Minjarez

Applicant

And

Mr Minjarez

Respondent

REASONS FOR JUDGMENT

1. Proceedings in relation to the parenting arrangements for B born in 2007 (“B”), and C, born in 2009 (“C”), were listed for hearing for four days commencing on 6 July 2015. The applicant in the proceedings is the mother, Ms Minjarez (“the mother”), and the respondent is the father, Mr Minjarez (“the father”).

2. The parties’ separation occurred after the mother discovered images on the father’s computer, recorded without her knowledge, of herself and the father in intimate situations. They separated on 27 August 2011, a few days after the mother’s discovery. On 29 November 2011 the mother made a statement to the police.

3. On 29 February 2012 the father pleaded guilty to charges of filming without consent and was placed on a good behaviour bond and fined $2,000. The father destroyed the films that had been the subject for the proceedings.

4. Immediately after the parties’ separation in August 2011 the children spent time with the father by agreement between the parents. From mid-January 2012 the mother did not allow the children to spend time with the father.

5. In March 2012 the father was referred for treatment to Dr N.

6. The matter has a long history. The proceedings commenced in the Federal Magistrates’ Court (as it then was), having a first return date in April 2012. Orders were made for the preparation of a report by a single expert, Dr E.

7. Dr E prepared a report dated 20 June 2012.

8. On 13 July 2012, orders were made by consent in the Federal Magistrates Court providing for the children to spend supervised time with the father each Tuesday afternoon, each Thursday afternoon and each Saturday.

9. A further report was prepared by Dr E in July 2014.

10. The father undertook 19 sessions of counselling with Dr N who provided two reports to the Court. In her final report, contained in an affidavit sworn by her on 23 June 2014, Dr N concluded that the father did not appear to meet any of the criteria for any kind of DSM-5 diagnosis. She said:

    His progress in counselling has been consistent and positive, showing well grounded reality testing ability to cope constructively with his circumstances, and to consistently prioritise the well-being of his two children while doing so.

    Assuming that there are no negative outcomes from the impending re-assessment being ordered by the Family Court, it is the view of this writer that [the father] should not be required to attend further counselling and should do so only at his own perceived need and request.

11. Dr E prepared a further report dated 11 July 2014.

12. On 24 July 2014, an order was made by consent for the preparation of a report by Dr L, there being some differences of opinion between Dr E, as expressed in his July 2014 report and Dr N as expressed in her June 2014 report.

13. The report of Dr L dated in October 2014 concluded:

    61. Formulation. [The father] pleaded guilty to secretly filming his wife during sexual activity. This is the only sexual crime [the father] has committed. There is no other evidence of any hypersexual or deviant sexual interests including no intense interest in pornography let alone child related pornography. As a consequence [the father’s] risk assessment suggests that he is low risk. There is no evidence of any general psychological malaise in [the father]. He does not present as a person who suffers from any significant personality disordered behaviour. He appears to be a person who is generally prosocial, settled and calm in his temperament.

    62. Although the relationship between he and [the mother] has broken down and a fairly unpleasant battle between them is now engaging through the courts, there is no evidence to suggest that [the father] presents any risk of harm to his children.

    63. In turning to the terms of reference I have been asked to comment on, in regards to the first term of reference, the father is not affected by any functionally significant psychosexual dysfunction. There is no evidence for any psychosexual dysfunction with [the father]. Given that there is no evidence for any psychosexual dysfunction the other matters in the terms of reference do not apply.

    64. As there is no evidence for any psychosexual dysfunction there is no suggestion that there is a need for [the father] to address his psychosexual needs in any specific therapy. [The father] appears to have made a mistake, which he now recognises and takes responsibility for, and would like to undo it if he could, but it does not reflect upon any underlying deviance or undue interest in psychosexual deficits. It also follows from that conclusion that his children are not at any risk of harm from [the father] engaging in any prurient or inappropriate boundary breaching behaviour.

1. In January 2015 Dr E, having been provided with a copy of the report of Dr L, prepared an updated report. Dr E recommended:

   Taking into account [Dr L’s review], together with [the father’s] effort to engage in therapy with [Dr N], I would suggest that following the commencement of the 2015 school year, that alternate weekend overnight contact could commence, initially from Friday after school to Sunday afternoon, and then incrementing to Monday morning, presuming [the father] is able to transport the children to school. This recommendation is conditioned however that the overnight stays occur in the paternal grandparents’ home, and they are to be present in the home. They are to provide undertakings that they will ensure the children will have their own beds in their own room(s) and that the children will remain in these beds throughout the night. [The father] is to ensure the children attend any weekend extra-curricular commitments that they might have. The children should have contact with their father in the alternate week – e.g. an afternoon/ early evening for dinner.

2. On 20 March 2015 orders were made by consent providing for the children to spend time with the father (unsupervised) each Monday after school until 7 pm, each Wednesday after school until they finish their swimming lessons and each alternate weekend from Friday after school until 7 pm on Sunday. The orders provided that the children were to sleep at the home of the paternal grandparents and that one of the paternal grandparents was to be present when the children were spending time in the home overnight.

3. Thus, by the time the matter came for hearing on 6 July 2015, the Court had the advantage of three reports prepared by Dr E, a report by Dr L and two reports prepared by Dr N. By this time the children were spending overnight time with their father each alternate weekend and time on two other occasions during each week.

4. With the assistance of the independent children’s lawyer (“ICL”) the parties were able to resolve the issue of parental responsibility and a number of ancillary and machinery orders. They were not, however, able to resolve the issue of the amount of time that the children would spend with the father either during school terms or during school holidays and the way in which that time would be configured.

5. The parties were directed to produce a document which set out in relation to each disputed aspect, the orders which were sought by the ICL, by the mother and by the father.

6. The matter then proceeded, by agreement, on the basis that none of the experts was required for cross-examination and that none of the parties was required for cross-examination. The ICL and counsel for each of the parents then made submissions in relation to the form of orders which the Court should make.

7. There was no dispute that the children would continue to spend alternate weekends with the father commencing on Friday after school and ending on Sunday evening. There was no dispute that the children’s time with the father should gradually increase. The disagreement between the parties related to the way that the time should be structured and the rate at which the time should increase.

8. In addition, there were further orders which were sought by the mother and the father in relation to special occasions and specific issues in relation to which the ICL did not wish to be heard. The issues in dispute between the parties were largely machinery, such as whether Sunday night time with the father would finish at 6 pm or 7 pm and whether the children would ultimately have time overnight with their father every Tuesday or every second Tuesday. The parties were invited to draw the Court’s attention to any matters of legal principle which would inform the Court’s decision in relation to these issues.

9. For convenience it is proposed to deal with the competing propositions in the order in which they are contained in the Minute of Orders Proposed by the ICL.

TIME WITH THE FATHER UNTIL THE CONCLUSION OF TERM 4, 2015

1. The ICL proposes that the children continue to spend each alternate weekend with the father from Friday after school, or 8 am if the Friday is not a school day, until 7 pm on Sunday, and on Tuesdays from after school until 7 pm. The ICL also proposes that the children spend time with the father on each Wednesday from after school, or 8 am if Wednesday is on a non-school day, until the conclusion of the children’s swimming class (or 7 pm if the children are not attending swimming).

2. The father agrees with that proposal.

3. The mother proposes that the children’s time with the father on alternate weekends should conclude at 6 pm on Sundays. She was not able to point to any evidence in her affidavit material to support that submission. The mother agrees that the children’s time with the father on Tuesdays should conclude at 7 pm despite the fact the Tuesday is a school day and was unable to provide any logical explanation for why the time should end at an earlier time on Sunday, which is not a school day.

4. Accordingly, orders will be made in accordance with the proposal of the ICL.

THE SCHOOL HOLIDAY PERIOD AT THE CONCLUSION OF TERM 4, 2015 AND TERMS 1 AND 2 IN 2016

1. The ICL proposes that the children spend time with the father each alternate weekend in accordance with the established cycle and that the Tuesday time with the father be extended to commence at 8 am on Tuesdays and conclude after the children’s swimming classes on Wednesday, or 7 pm if the children were not attending swimming. The mother opposes that proposal and suggested that the children’s time on Tuesday should not be overnight but that the children should spend Tuesday from 8 am until 7 pm with the father and Wednesday from 8 am until the end of their swimming classes or 7 pm if the children were not attending swimming.

2. No logical reason was advanced by the mother to support the proposition that there should not be overnight time for the children on Tuesdays. By the time the school holiday commences in December 2015, the children will have been spending overnights with their father on alternate weekends for some nine months. They will also have been spending each Tuesday afternoon with their father until 7 pm. The ICL proposes the introduction of the mid-week overnight during the school holidays as a step towards the children spending regular overnight time with the father during term time in 2016 and following. This is a natural and sensible progression of the time the children spend with the father to time which is both substantial and significant.

3. The father sought extended time with the children during the school holidays beyond that which was proposed by the ICL.

4. The proposal of the ICL is cautious and appropriate. The evidence does not support the mother’s desire to restrict overnight contact and I am not convinced that the father’s proposal to extend overnight contact is appropriate. Orders will be made in accordance with the proposal of the ICL.

FROM THE COMMENCEMENT OF TERM 3, 2016 AND THEREAFTER

1. The ICL proposes that alternate weekend time with the father should be extended from Friday until the commencement of school on Monday morning during term time and that the children should continue to spend time with their father each Tuesday until the commencement of school on Wednesday. The father supports the proposal of the ICL. The mother proposes that the Tuesday time spent with the children should be on each alternate Tuesday and not on each Tuesday.

2. The mother, in support of her proposal, suggests to the Court that for the children to spend time with their father each Tuesday would be disruptive.

3. I am unable to ascertain the logic of the mother’s submission. She relies upon paragraph 108 of her affidavit sworn in January 2015, where she deposes that the father’s older brother is married to his first cousin and that there are other instances of first cousin marriages throughout the extended paternal family. How that can be relevant to the issue of whether the children spend each Tuesday night or each second Tuesday night with their father is not apparent.

4. The mother also relies upon specified paragraphs of an affidavit sworn by her in June 2015. Specifically, she points to the fact that when the children commenced spending overnight time with their father in March 2015 there was some disruption for them. As the ICL submitted, some disruption was to be expected in circumstances where the children had not spent overnight time with the father since about January 2012 and C had but recently started school. The introduction of overnight time was a significant change for the children.

5. The mother describes the children being clingy towards her after they return from time with the father and being unsettled. Again it is not clear why the children would be less settled if they spent every Tuesday night with their father rather than every alternate Tuesday night.

6. The mother also relies upon the fact that C has been diagnosed with a heart condition as a basis for opposing the children spending each Tuesday night with the father. Tendered in evidence were two reports from C’s paediatric cardiologist, Dr O. In her report dated 2 June 2015 Dr O says:

   [C] has complete heart block. Her average heart rate over the 24hrs at 49bpm is just less than 50 which would be one of the indications for pacemaker. Her heart rate also gets quite low during her sleep. I have referred [C] and her mother and father to Dr P at the [Q Hospital] to discuss indications for a pacemaker which I think [C] probably requires.

7. It was the father who initially took C to see a general practitioner as a result of which she was referred to see Dr O on a suspicion that she might have a heart murmur. The father told the mother about the referral. The mother reacted to this information by taking C to see another doctor and sending an email to the father’s solicitor and to the ICL in which she said (bold emphasis in original):

   I have therefore decided that the children will not be available to the Father this week as per the Consent Orders because I have attend (sic) to [C’s] condition with the specialist and get a better understanding of her condition. I do not trust him to keep me informed on her condition if there is (sic) any other issues or make the right judgment as to when to take her to the doctor whilst she is in his care overnight.

8. On 14 April 2015 the general practitioner provided a letter which read, inter alia:

   [C Minjarez], age 5 yrs, presented with her father yesterday giving the history of abdominal pain, , (sic) no thing (sic) was found in examination apart from incidental systolic heart murmur, after discussion with the father he was assured that this is not urgent or serous (sic) condition and may be trivial ,[the father] requested further investigation by cardiologist and [C] was referred to see [Dr O] [cardiologist]

9. On 14 April 2015 the father attended with the mother when she consulted a paediatrician who also suggested a referral to Dr O.

10. Nothing in the evidence relating to the manner in which the father dealt with the diagnosis of C’s heart condition and the subsequent management of that condition suggests that the father is either incapable or unwilling to properly deal with C’s condition. There is nothing in the evidence which has been presented to the Court which supports the mother’s contention that, because of C’s heart condition, it is inappropriate for C to spend each Tuesday with her father. The basis of the submission that each alternate Tuesday would be appropriate, whereas each Tuesday is not, is not clear.

11. The proposal of the ICL that the children spend each Tuesday with their father has the advantage of routine and consistency. The children are already accustomed to spending overnight time with their father. If, at the appropriate time, that overnight time is extended to include an overnight each week on Tuesday then the children will know from that time, and in the foreseeable future, that Tuesday nights are the nights they spend with their father. They will not have to accustom themselves to spending some Tuesday nights with him and some not.

12. It could not be suggested that having the children spend Tuesday nights with their father would in any way interfere with the strong and primary relationship they already have with their mother. This arrangement would have the advantage of the children spending time with their father during the school week and experiencing him as a father with the responsibility of collecting them from school, ensuring their homework is done and getting them to school the next day rather than simply as a “good time” father.

13. Orders will be made in accordance with the proposal of the ICL.

SCHOOL HOLIDAYS IN 2016

1. The ICL proposes that in the school holidays at the end of term 1 of 2016 the children have four nights with their father in the first week of the holidays and an overnight on Tuesday night in the second week of the holidays. The mother agrees.

2. In the holidays at the conclusion of term 2, the ICL proposes that the children would have five nights with their father in the first week and one night in the second week. The mother agrees.

3. In the school holidays at the end of term 3, the ICL proposes that the children would have seven nights with the father in the first week of the holidays and no time in the second week. The mother agrees.

4. The father, in relation to the holidays at the conclusion of term 3, proposes that he should have one half of the holiday period. In my view, the progression proposed by the ICL to a seven night period with the father is appropriate and has the advantage of certainty, there being no room for dispute about what constitutes one half of the school holiday period in circumstances where the parents already dispute whether or not pupil free days should be included in the holiday period.

5. Orders will be made in accordance with the proposal of the ICL.

SCHOOL HOLIDAY PERIODS AT THE CONCLUSION OF TERM 4, 2016

1. The ICL proposes and the parties both agree that there should be a week about arrangement for the Christmas 2016 holidays.

2. The parties ultimately both agree that Christmas should be shared between them on the basis that one parent has the children from 11 am on Christmas Eve to 11 am on Christmas Day. The children would then be with the other parent from 11 am on Christmas Day until 11 am on Boxing Day (as proposed by the father) or 5 pm on Boxing Day (as proposed by the mother). There is merit in the longer period which is proposed by the mother and orders will be made accordingly.

3. In 2016, the last day of term before the Christmas holidays is 16 December. The orders proposed by the mother would have the effect that the children live with the father from the first day of the holidays until 11 am on Christmas Eve and then from 2 January 2017. Thus the children would not spend the significant days of Christmas with the father.

4. The father’s proposal is that the time with him starts at 11 am on Christmas Day so that the children spend Christmas Eve and Christmas morning with the mother and the remainder of Christmas Day with the father. That proposal is reasonable and involves less changeovers than the proposal of the ICL.

5. Orders will be made in accordance with the father’s proposal.

SCHOOL HOLIDAY PERIODS FROM THE CONCLUSION OF TERM 1, 2017

1. The ICL proposes that the children spend the first half of each of the holidays after terms 1, 2 and 3 with the father. The parents both agree.

2. In relation to the term 4 holidays (including the Christmas holidays), the parents agree that the children should spend half of the holidays with each parent but they disagree as to the way in which the time should be divided.

3. There is a dispute between the parties about whether or not pupil free days should be included as part of the holidays. The mother proposes the pupil free day should not be included in the calculation of holidays because, she argues, she needs to have the pupil free day available to her in order to prepare the children to go back to school.

4. There is merit in the children being with the mother for the period leading up to them going back to school at the beginning of the term and therefore the orders will provide that the children will always spend the last day of the holiday period with their mother. However, there is no merit for reducing the father’s time with the children by excluding pupil free days. School holidays will be defined to include the day immediately following the last day the children attend school and the day immediately before the first day upon which the children return to school.

5. The Orders will provide for the father’s half of the holidays, when he has the children for the second half, to conclude on the day before the last day that the children are at home, whether that day is a day of the gazetted holidays or a pupil free day.

RELOCATION

1. The ICL and the father seek an order that neither party relocate their place of residence further than 15km from the children’s school without the prior written consent of the other.

2. The mother and her new partner live in a home which they own which is proximate to the children’s school. The father has purchased a property which is also proximate to the children’s school. There is no evidence that either of them intends to change their place of residence.

3. The orders which have already been made by consent require the parents to ensure that the children remain enrolled at their present schools and there is no basis upon which the order preventing change of residence should be made.

COMMUNICATION

1. The ICL has proposed that the parties communicate by SMS, telephone or email and be restrained from using either of the children as a messenger. Both parents agree to the making of that order. The mother seeks to impose in the orders a requirement that the receiving parent responds to the message within a reasonable timeframe. The father opposes the insertion of that condition, suggesting that such a condition will only lead to further conflict between the parents.

2. It is apparent from the affidavit material that these parents have different views about what might be appropriate timeframes for responses and I do not propose to make any order that allows either of them to criticise the other for the time period in which they respond to each other’s communications.

3. Orders will be made in accordance with the proposal of the ICL.

THE CHILDREN’S GENERAL PRACTITIONER

1. The ICL and the mother seek orders that the children attend upon only one general practitioner, being Dr M. The father agrees that it is appropriate for the children to only attend upon one general practitioner but proposes that the general practitioner should be Dr R.

2. Dr M is the general practitioner to whom the mother takes the children. The children live primarily with her. The records produced by Medicare suggest that, at least since 2013, Dr M is the doctor who has most usually seen the children.

3. The father will be living within a very short distance from the mother’s home. There can be no suggestion that it is not convenient for him to take the children to see Dr M if they need to see a doctor and the orders will require both of the parties, other than in an emergency, to ensure that the children are seen by Dr M if they need the assistance of a general practitioner.

EASTER HOLIDAYS

1. The parties agree that the Easter holidays should be shared between them in accordance with the father’s proposals.

MOTHERS’ DAY AND FATHERS’ DAY

1. Both parties agree that the children should spend those special days with the relevant parent. They disagree about the way in which the orders should be structured. I propose to order that the weekend time that the children might ordinarily spend with their father is to be suspended on the weekend of Mothers’ Day. Similarly, in the event that the children would not normally spend the weekend of Fathers’ Day with their father, then they should spend that weekend with him. This may have the effect that the children will spend two consecutive weekends with one parent.

THE CHILDREN’S AND PARENTS’ BIRTHDAYS

1. The mother does not propose that there should be any specific orders for the children to spend periods of time on their birthdays or on the parent’s birthday with that parent. The father proposes that he should see the children on their birthdays and on his own birthday.

2. The mother works full-time and the children are cared for by the mother’s parents after school. At paragraph 12 of his report dated 11 July 2014, Dr E reports the mother as telling him that the maternal grandfather collected the children from school and that she collected the children between 6 pm and 6.30pm from their grandparents.

3. The father is self-employed and has more flexibility in the time he is available. In circumstances where the mother is unavailable to spend time with the children on the afternoons of their birthdays until after she returns home from work, there could be no further disruption to the children (who would ordinarily be cared for by their grandparents), and no prejudice to the mother if the children spend that time with their father.

4. The orders will provide that, in the event that the children’s birthdays or the father’s birthday falls on a school day, when the children would not be with the father after school, then the children will spend time with the father on that day from the conclusion of school until 7 pm when the father will return them to the mother.

5. If the father’s birthday or the children’s birthdays fall on a day which is not a school day, then the existing orders in relation to weekends and school holidays will prevail and there will be no special arrangement.

THE FATHER’S RESIDENCE

1. The mother seeks an order that the children’s time with the father from the commencement of term 1 of 2016 is to be conditional upon the father moving into his own residence and that the children each have their own bedrooms. It is the father’s evidence that he has purchased a property and is shortly to move into that property.  

2. In support of her position the mother relies upon the recommendation of Dr E contained at paragraph 6 of his January 2015 report to the effect that the children should have their own bedrooms.

3. Dr E’s recommendation was conditional upon the overnight stays occurring in the home of the paternal grandparents, a recommendation with which the mother does not agree.

4. The evidence does not establish that there have been any difficulties created by the accommodation which is available to the children, whether in their grandparent’s home or in the home of the father and the mother does not point to any evidence which supports her position.

5. The orders sought by the mother will not be made.

TELEPHONE COMMUNICATION

1. The mother seeks an order that she be able to telephone the children once every day when they are in the father’s care. The father opposes that application. The father relies upon his own observations of the effect of the telephone calls on the children and the evidence of his sister-in-law (“the children’s aunt”) about telephone conversations between the mother and the children.

2. The children’s aunt, in her affidavit, refers to occasions when the mother’s telephone calls to the children were intrusive. Specifically, she refers to a telephone call on 23 May 2015 where the mother said to C, who was at the time in the care of her aunt, “Do you feel safe? Are you sad? Do you want me to come and pick you up?” On that day the mother made three separate phone calls to C.

3. The mother, in her affidavit, denies that she said to C the words which are attributed. In the absence of cross-examination, I am not in the position to make any finding of fact. It is however, apparent, that the issue of telephone calls has been the subject of extensive correspondence between the parties’ respective solicitors.

4. In her affidavit sworn 25 June 2015 the mother says, in relation to the weekend commencing on 10 April 2015, “During this weekend, I called the children every night. The conversations were very brief and I sensed that the children were not comfortable in speaking with me in the presence of their father.”

5. In relation to the weekend commencing on 24 April 2015, the mother says in her affidavit sworn 25 June 2015:

   That weekend, I called the children on Friday and Saturday. At both times my conversations with [C] and [B] are very brief and last no longer than 90 seconds. When I said to the children on the phone that I loved them, neither of them replied with ‘I love you’. This is very abnormal behaviour from both of them, where it has always come naturally for them to reciprocate the words ‘I love you’. I sense that both the children are not at ease to talk to me on the phone when they are with [the father].

6. Having regard to the long held hostility between the parents it is not surprising that the children would be uneasy about having telephone conversations with their mother whilst they are in their father’s home and there is no necessity for conversations to take place when the children are only separated from their mother for one night.

7. On occasions when the children are with their father for a weekend, they should have one telephone conversation with their mother in the course of the weekend and the orders will require the father to arrange for the children to telephone their mother on Saturday evening.

8. During school holiday periods when the children are with their father for more than three consecutive nights, the orders will require that he ensure that the children telephone their mother every second evening. The children may feel more comfortable speaking to their mother from their father’s household if the calls are instigated by the father.

THE COST OF THE REPORT OF DR L

1. The orders which were made for the preparation of the report by Dr L required that, in the first instance, the father pay the cost of the report. The father has paid $2,750 and asks the Court to make an order that the mother reimburse him for one half of that amount.

2. The mother opposes the making of that order.

3. The evidence before the Court is that the mother is in full-time employment as is her current partner. The father pays child support and those child support payments have been brought up-to-date by a recent payment of a lump sum.

4. There is no apparent reason why the mother should not equally share the cost of the report of Dr L. The orders will provide for a payment to reimburse the father for half of the amount.

PASSPORT

1. The mother wishes to be the person who holds the children’s passports. The father agrees and orders will be made accordingly.

CONCLUSION

1. Neither of the parents has suggested that the children should spend equal time with each of the parents and that is not an outcome that is recommended by any of the experts in the proceedings.

2. The orders will allow the children to transition to a stable arrangement whereby they spend time with their father both during weekends and school holiday periods and at the beginning and end of school days.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 July 2015.

Associate:

Date:  24/7/2015