MOFFAT & NEARY

[2017] FCCA 12

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOFFAT & NEARY [2017] FCCA 12

Catchwords:
FAMILY LAW – Interim parenting – best interests of children.

Legislation:

Family Law Act 1975, ss.61C, 60CC, 60B, 60CA, 61DA, 65DAA, 65D

Cases cited:
Banks v Banks (2015) FamCAFC 36
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MS MOFFAT

Respondent: MR NEARY

File Number: PAC 3001 of 2016

Judgment of: Judge Newbrun

Hearing date: 8 December 2016

Date of Last Submission: 21 December 2016

Delivered at: Parramatta

Delivered on: 20 January 2017

REPRESENTATION

Solicitors for the Applicant: Mr Hassan

Solicitors for the Respondent: Mr Coyle

ORDERS, PENDING FURTHER ORDER

1. Pursuant to section 61C of the Family Law Act 1975, each parent shall have parental responsibility for X born (omitted) 2009 and Y born (omitted) 2013 (the “children”) at such times as they are in their respective care.

2. The children shall live with the mother.

3. The children shall spend time with the father as agreed between the parties, but failing agreement as follows:

   (a)Every third weekend during school term times, from 6:00pm Friday until 6:00pm Sunday. Changeovers shall occur at McDonald’s restaurant, (omitted).

   (b)During each gazetted New South Wales school holiday period following terms 1, 2 and 3, from 10:00am on the first day of each school holiday until 6:00pm on the second Saturday of that holiday period. Changeovers shall occur at McDonald’s restaurant, (omitted).

   (c)During the Christmas school holiday period following term 4 each year:

   (i)In holidays that start in even-numbered years, from 10:00am on the first Saturday of the holiday until 5:00pm on 7 January; and

   (ii)In holidays that start in odd-numbered years, from 5:00pm on the 7 January until 5:00pm on the last Saturday of the holiday.

4. Notwithstanding any other order:

   (a)The children’s time with the father shall be suspended on the Mothers’ Day weekend.

   (b)The Fathers’ Day weekend shall be treated as an additional spending time weekend if that weekend is not a spending time weekend pursuant to order 3.

5. For the purpose of changeovers at the start and conclusion of the children’s time with the father during the longer school holidays, the father shall pick up the children from the mother’s residence and return them to her residence at the beginning and conclusion respectively of the children’s time with the father.

6. The parents must keep each other informed at all times of their respective mobile telephone numbers and/or E-mail addresses that each of them has available from time to time and they must each notify the other in writing or by text message of any change in such particulars within 48 hours of change.

7. If a child shall suffer an accident, injury or illness that requires medical attention when the child is with either parent, he or she must provide details of that event to the other parent as soon as possible on their respective mobile telephone numbers.

8. Each parent is entitled to obtain directly from all educational, health and welfare agencies and professionals involved in the care of the children all information regarding their education, health and welfare and for this purpose each of the parties shall keep the other informed of the names and contact details of all educational, health and welfare agencies and professionals involved in the welfare of the children.

9. Should either parent need the consent of the other parent to obtain information pursuant to the preceding order, he or she may hand deliver or post the form of authority together with a stamped return-addressed envelope to the other parent and that other parent must sign and return the requesting parent by hand or by post any form reasonably and necessarily submitted to him or her for that purpose.

10. The parties shall each be entitled to attend any and all appointments with the children’s general practitioner or any other professionals involved in the children’s educational, medical and/or psychological needs.

11. The parties are each entitled to obtain copies of school reports, notices, newsletter and school photograph order forms and are each entitled to attend school events to which all parents are invited.

12. The father communicate with the children by telephone or mobile or skype if they are not otherwise spending time with him as follows:

    (a)Between 6:00pm and 6:30pm each Tuesday,

    (b)Between 6:00pm and 6:30pm on Fathers’ Day,

    (c)Between 6:00pm and 6:30pm on each of the children’s birthdays, and

    (d)At such other times as may be agreed between the parties.

13. The mother communicate with the children by telephone or mobile or skype if they are not otherwise spending time with her as follows:

    (a)Between 6:00pm and 6:30pm each Tuesday,

    (b)Between 6:00pm and 6:30pm on Mothers’ Day,

    (c)Between 6:00pm and 6:30pm on each of the children’s birthdays, and

    (d)At such other times as may be agreed between the parties.

14. The children are permitted to telephone either parent whilst in the care of the other parent at all reasonable times and each parent shall facilitate such telephone calls.

15. Each parent be restrained from discussing the Court proceedings, past or present with the children save and except for any counsellor/psychologist appointed by the Court.

16. Each parent be restrained from denigrating the other parent or any member of their household and shall not allow any other person including their current partner to do so at any time.

17. The parents communicate with each other by text messages or written correspondence in relation to any issue pertaining to the children or either of them and all such communication shall be conducted in a polite and civil manner if any such issue arises requiring urgent attention.

18. To the extent that the above orders are inconsistent with the orders of the Court of 23 August 2016, the above orders shall prevail; otherwise the orders of 23 August 2016 remain in force.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3001 of 2016

MS MOFFAT

Applicant

And

MR NEARY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing, held on 8 December 2016, with further oral submissions (by telephone) by the parties’ solicitors on 21 December 2016, related to the children X born (omitted) 2009 and Y born (omitted) 2013 (the “children”).

2. At this interim hearing, the parties agreed to various further interim parenting orders but requested the Court to make a judicial determination as to the changeover location; the father lives at (omitted), near (omitted), and the mother lives at (omitted) near (omitted). On 21 December 2016 the mother’s solicitor pressed certain parental responsibility orders set out at page 2 of her Case Outline, with the father’s solicitor repeating the father’s proposal for equal shared parental responsibility.

3. As to changeover, the father proposed that the mother deliver the children to the father’s address at (omitted) at the start of the children’s time with the father, with the father to return the children to the mother’s residence at (omitted) at the conclusion of the children’s time with him, exhibit D.

4. On enquiry by the Court on 21 December 2016, the father’s solicitor submitted that he would not oppose an interim order that changeover occurs at an approximate half-way point between the parties’ respective residences, at McDonalds (omitted).

5. For the mother’s part, she proposed that the father collect the children from, and return the children to, the mother’s home at the commencement and conclusion of his time. On enquiry by the Court on 21 December 2016 as to a possible changeover at a place between the parties’ respective residences, the mother maintained her above proposal.

6. The approximate drive time from (omitted) to (omitted) is about 3 hours 41 minutes.

7. The parties had agreed, inter alia, to the children living with the mother; the children spending time with the father, during school term times, every third weekend from 6:00pm Friday until 6:00pm Sunday; and the equal sharing of both short and long school holidays.

8. The mother relied upon her Case Outline filed 30 November 2016, together with a chronology and submissions under section 60 CC of the Family Law Act (the Act), Exhibit A. She also relied upon her Affidavits filed 30 June 2016, 9 September 2016 and 25 November 2016.

9. The father relied upon his Case Outline filed 2 December 2016 (excluding the proposed parenting orders in that document), exhibit B, together with his Affidavits filed 11 August 2016, and 28 September 2016, and an Affidavit of his partner, Ms K filed 11 August 2016.

10. The Fathers proposed minute of order was Exhibit D.

11. A letter from Mr G, clinical psychologist, dated 14 September 2016, addressed to the father’s solicitors, was tendered in evidence, exhibit C.

12. Two letters from the mother’s solicitors to the father in 2012 were tendered in evidence, exhibit E.

Submissions

1. The Court informed the parties at the interim hearing that it would only have regard to relevant submissions that were supported by evidence.

2. As to the changeover question, the mother placed reliance upon the evidence relating to her financial circumstances. It was submitted that the mother was a single parent with no real income and she was financially reliant upon her parents. The father was in arrears of Child Support to her in a sum of about $12,000. If the mother had to drive the children to the father’s residence at (omitted), there would be significant travel costs, and the mother could not afford this expense.

3. The father submitted that he was a pensioner and that Child Support was determined by the Child Support Agency. The arrears of Child Support of some $12,000 was disputed; it was claimed that a compensation sum payable to the father had been treated incorrectly as income. The mother had failed to adequately particularise exactly why she could not afford the cost of driving the children to the father’s residence at (omitted).

4. The mother submitted that since 2014 and the father’s diagnosis of PTSD, the children had been delivered to the mother’s premises at (omitted) by the father.

Agreed or undisputed relevant facts

1. The mother is aged about 36 years. The father is aged about 42 years.

2. The parties’ relationship was from about October 2008 to May 2012.

3. The mother has been the primary carer of the children all their lives.

4. The child X has been diagnosed with autism, and was recommended by his treating psychologist to be enrolled at a special school where school fees amount to $623 per term. The mother has expenses of school uniforms and shoes, $900 per annum, as well as sports uniforms, the mother spent $600 for medical expenses when this child’s grommets were removed and another $500 for his glasses. The mother paid (omitted) registration of $200 a year and regular medications of $30 per month. The mother asserts that the father made no contributions to any of these expenses.

5. The mother is also spending $80 per fortnight for the child Y’s family day care, her (omitted) lessons of $450 per year, and (omitted) uniforms of $100 per year. No contributions have been received from the father.

6. The mother states that when possible she works casually from home as a (occupation omitted).

7. The father was an (occupation omitted) until he was discharged in 2014 for Post-traumatic stress disorder (PTSD).

8. The mother asserts that the father is now paying $106 per month in Child Support. In response, the father states that he is now unable to work and is living on a pension from the (employer omitted).

9. The mother’s Affidavit filed 9 September 2016 refers to the child X’s eligibility to access the Autism Spectrum Disorder Early Intervention Package of the Australian Government; the eligibility start date was 12 November 2012 and the eligibility end date was 28 August 2016 with a maximum funding available of $12,000, with no more than $6000 paid in a single financial year. The Affidavit also refers to the child’s eligibility to become a National Disability Insurance Scheme participant from 5 January 2015.

10. In the Brighter Kids Occupational Therapy letter of October 2015, it is stated, inter alia, that the child X will come back from his visits unsettled and out of sorts causing behavioural and emotional outbursts. It is stated that the mother reports that it usually takes a week to resettle the child after an access visit. In the child X’s semester one 2016 school report from (omitted) Primary School, it is stated, inter alia that the child X is a student who needs to be encouraged and supported in the classroom.

11. The mother states in her Affidavit filed 25 November 2016, that the father visited the mother in (omitted) every weekend to spend time with the children, soon after the younger child Y was born. (She was born on (omitted) 2013).

12. The mother refers to the father attending the (omitted) event every year, camping there for a whole week. She states that it is a big, busy, noisy event.

13. The mother refers to being aware that in 2014 the father was diagnosed with PTSD and went on long service leave with pay.

14. The mother states that she is now aware that the father’s new partner Ms K has moved out of the father’s residence with her younger son A aged about seven years.

15. The mother states that when the Child Support Agency took over the father’s case in February 2013 there were arrears of Child Support contributions of about $12,000. The mother states that the father’s non-compliance with his liability to pay Child Support has impacted severely on her financial capacity to provide for the children’s welfare and development. She states that she had to work part-time to make ends meet. She states that she would have been “out in the street with my children” but for her parents assisting her with housing and finances.

16. The mother states that the NDIS funding in respect of the child X covers all his therapies and consultations, however the total amount provided under the scheme is capped and any excess is to be paid by the parent.

17. In relation to the father complying with previous consent order 1j of 23 August 2016, relating to the father being responsible for equally paying with the mother certain child related expenses, the mother states that she sent the father two invoices for the child X’s summer school uniform of about $78 and a dancing fee for the younger child of about $72, being respectively half the price of such items. The father did not respond nor make any payment thereof.

18. In the father’s Affidavit filed 11 August 2016, he states that he has always paid Child Support. He states that he pays Child Support as assessed by the Child Support Agency.

19. In Exhibit C, the letter from the father’s treating clinical psychologist to the father’s solicitors, dated 14 September 2016, it is stated, inter alia, that the father continues to be treated for PTSD. It is stated that the father’s recovery is going to be a protracted one. It is stated that contact with the mother continues to be a significant stressor for his PTSD.

20. Exhibit E, letter from other solicitors to the father of 24 July 2012 notes that the father is presently picking up the child X from the (omitted) McDonalds.

21. At mediation in September 2012, the parties agreed that the children would live with the mother and spent time with the father each second weekend and half of the school holidays. Changeover was to occur at McDonald’s at (omitted). That arrangement was in place for about four weeks. The mother then told the father that it was too far to her to travel to (omitted). The parties then arranged that the father would collect the children from the McDonald’s/KFC location at (omitted). This arrangement continued for about eight weeks. Then the father told the mother that this was too far for him. The parties then agreed to meet at (omitted). (omitted) arrangement continued until April 2016. The mother ultimately objected to driving to (omitted), in the context however of the children spending fortnightly weekends with the father. Then the father drove to the mother’s residence to pick up the children and returned them to her there.

22. The above mentioned psychologist has been treating the father for PTSD since 2014. There is a very brief report from the father’s treating psychiatrist of 19 July 2016 which refers to the father’s symptoms of PTSD, anxiety and depression

23. The father states that he does not agree to do all of the driving as driving causes him stress. The Court interpolates here that there is no health professional evidence that this is the case.

24. The father states in his Affidavit filed 28 September 2016 that he is presently attempting to renovate a house for the benefit of the children.

25. The father states that the child X is currently attending a private school that the mother decided without any reference or consultation with him. He therefore does not consider that he is responsible for the child’s educational expenses as a result of this private education.

Legal Principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80,332:

   [80]. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

4. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

5. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

6. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

7. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

1. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. The parties agreed at the interim hearing that the children should spend time with the father each third weekend during the school term periods.

3. On the mother’s proposal, requiring the father to do all the driving between the parties’ respective residences, the father will be required to drive from (omitted) to the mother’s residence at (omitted) to pick up the children on a Friday, being a trip approaching 4 hours. He will then have to turn around, having picked up the children, and travel back to (omitted). That is a considerable amount of driving in one day for the father, and his ability to spend meaningful time with the children on the return trip home is likely to be adversely impacted by having previously driven on the same day for a time approaching 4 hours to the mother’s residence. A further trip from the father’s residence to the mother’s residence on the immediately following Sunday afternoon will result again in the children’s time with the father being somewhat compromised, in that they will spend a significant part of their weekend with the father driving.

4. Accordingly, on the mother’s proposal, there is a significant risk that the children’s meaningful relationship with the father may be adversely affected in that a significant portion of the children’s weekend time with the father during school term times (noting the parties have agreed to every third weekend during school term times) will be spent with the father whilst he is driving, and again, in circumstances where the father, at least on the trip down from (omitted) to pick up the children, has already spent driving time approaching 4 hours.

5. Similarly, changeovers during the short school holidays, noting that the parties have agreed that the children will spend equal time, representing 1 week, with each parent, an order requiring the father to do all the driving carries the significant risk that the children’s meaningful relationship with the father may be adversely affected. However this will probably not be the case with the longer school holidays.

6. The Court gives significant weight to this meaningful relationship primary consideration at this interim hearing.

7. The Court notes that the meaningful relationship consideration under section 60CC(2) of the Act is a primary consideration, when considered against the other additional considerations under section 60CC(3) of the Act.

60CC(3) ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother maintains that she will experience serious financial difficulties in driving the children to the father’s residence at (omitted) and returning to her own residence at (omitted). There is some evidence before the Court to support this assertion. The father agreed to an order on 23 August 2016 that he share equally the payment of certain expenses on behalf the children, yet there is evidence before the Court that he may not have complied with this order. The father maintains he is able to pay Child Support through the Child Support Agency.

2. The evidence and the submissions of the parties did not permit the court to meaningfully consider the remaining additional considerations under section 60CC(3) of the Act, and in any event they did not appear to be relevant at this interim hearing.

Parental responsibility:

1. The mother seeks an order for sole parental responsibility in the event that the parties cannot reach agreement in respect to making decisions about the children’s long-term care, welfare and development. The father seeks an order for equal shared parental responsibility.

2. There is some evidence before the Court that the father’s PTSD is exacerbated by contact with the mother. The father’s partner, Ms K, states that the father was finding it difficult to communicate with the mother so she stepped in to communicate with the mother by telephone and text message in about mid-2016, although ultimately that communication between Ms K and the mother broke down. It is not totally clear on the evidence before the Court as to whether the father’s PTSD is significantly exacerbated by having to communicate by email or text message with the mother, as opposed to speaking with her on the telephone or dealing with her face to face.

3. At this interim stage, based on the quite limited evidence before the Court in relation to this issue of parental responsibility, the Court is of the view that it will not be in the best interests of the children to make an express order in relation to parental responsibility; accordingly, the provisions of section 61C should apply, providing that each of the parents will have parental responsibility for the children at such times as they are in their respective care.

Evaluation

1. The Court is of the view, giving greater weight to the meaningful relationship primary consideration discussed above, whilst taking into account the evidence before the Court of the mother’s financial difficulties in transporting the children by car significant distances, that it will be in the best interests of the children that the changeover of the children, in respect of their time with the father during school term times and the shorter school holidays, take place at (omitted).  Such an arrangement for changeover will result in the mother travelling from (omitted) to (omitted) each third weekend (on the Friday afternoon and Sunday afternoon) a distance of about 122 km (one way), whereas the father will need to drive from (omitted) to (omitted) (on the Friday afternoon and Sunday afternoon) a distance of about 165 km. Such an arrangement, for the father’s part, as opposed to the mother’s proposal that he drive from (omitted) to (omitted) and return, will result, inter alia, in the father spending less of his allocated time with the children driving on the state’s roads.

2. Further, the Court notes that the following interim parenting orders are by consent, and will be in the best interests of the children:

   (1)Pursuant to section 61C of the Family Law Act 1975, each parent shall have parental responsibility for X born (omitted) 2009 and Y born (omitted) 2013 (the “children”) at such times as they are in their respective care.

   (2)The children shall live with the mother.

   (3)The children shall spend time with the father as agreed between the parties, but failing agreement as follows:

   a.Every third weekend during school term times, from 6:00pm Friday until 6:00pm Sunday. Changeovers shall occur at McDonald’s restaurant, (omitted).

   b.During each gazetted New South Wales school holiday period following terms 1, 2 and 3, from 10:00am on the first day of each school holiday until 6:00pm on the second Saturday of that holiday period. Changeovers shall occur at McDonald’s restaurant, (omitted).

   c. During the Christmas school holiday period following term 4 each year:

   i.In holidays that start in even-numbered years, from 10:00am on the first Saturday of the holiday until 5:00pm on 7 January; and

   ii.In holidays that start in odd-numbered years, from 5:00pm on the 7 January until 5:00pm on the last Saturday of the holiday.

   (4)Notwithstanding any other order:

   a.The children’s time with the father shall be suspended on the Mothers’ Day weekend.

   b.The Fathers’ Day weekend shall be treated as an additional spending time weekend if that weekend is not a spending time weekend pursuant to order 3.

   (5)For the purpose of changeovers at the start and conclusion of the children’s time with the father during the longer school holidays, the father shall pick up the children from the mother’s residence and return them to her residence at the beginning and conclusion respectively of the children’s time with the father.

   (6)The parents must keep each other informed at all times of their respective mobile telephone numbers and/or E-mail addresses that each of them has available from time to time and they must each notify the other in writing or by text message of any change in such particulars within 48 hours of change.

   (7)If a child shall suffer an accident, injury or illness that requires medical attention when the child is with either parent, he or she must provide details of that event to the other parent as soon as possible on their respective mobile telephone numbers.

   (8)Each parent is entitled to obtain directly from all educational, health and welfare agencies and professionals involved in the care of the children all information regarding their education, health and welfare and for this purpose each of the parties shall keep the other informed of the names and contact details of all educational, health and welfare agencies and professionals involved in the welfare of the children.

   (9)Should either parent need the consent of the other parent to obtain information pursuant to the preceding order, he or she may hand deliver or post the form of authority together with a stamped return-addressed envelope to the other parent and that other parent must sign and return the requesting parent by hand or by post any form reasonably and necessarily submitted to him or her for that purpose.

   (10)The parties shall each be entitled to attend any and all appointments with the children’s general practitioner or any other professionals involved in the children’s educational, medical and/or psychological needs.

   (11)The parties are each entitled to obtain copies of school reports, notices, newsletter and school photograph order forms and are each entitled to attend school events to which all parents are invited.

   (12)The father communicate with the children by telephone or mobile or skype if they are not otherwise spending time with him as follows:

   a.Between 6:00pm and 6:30pm each Tuesday,

   b.Between 6:00pm and 6:30pm on Fathers’ Day,

   c.Between 6:00pm and 6:30pm on each of the children’s birthdays, and

   d.At such other times as may be agreed between the parties.

   (13)The mother communicate with the children by telephone or mobile or skype if they are not otherwise spending time with her as follows:

   a.Between 6:00pm and 6:30pm each Tuesday,

   b.Between 6:00pm and 6:30pm on Mothers’ Day,

   c.Between 6:00pm and 6:30pm on each of the children’s birthdays, and

   d.At such other times as may be agreed between the parties.

   (14)The children are permitted to telephone either parent whilst in the care of the other parent at all reasonable times and each parent shall facilitate such telephone calls.

   (15)Each parent be restrained from discussing the Court proceedings, past or present with the children save and except for any counsellor/psychologist appointed by the Court.

   (16)Each parent be restrained from denigrating the other parent or any member of their household and shall not allow any other person including their current partner to do so at any time.

   (17)The parents communicate with each other by text messages or written correspondence in relation to any issue pertaining to the children or either of them and all such communication shall be conducted in a polite and civil manner if any such issue arises requiring urgent attention.

   (18)To the extent that the above orders are inconsistent with the orders of the Court of 23 August 2016, the above orders shall prevail; otherwise the orders of 23 August 2016 remain in force.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  20 January 2017