Moore & Moore
[2022] FedCFamC1F 826
Federal Circuit and Family Court of Australia
(DIVISION 1)
Moore & Moore [2022] FedCFamC1F 826
File number(s): BRC 11347 of 2019 Judgment of: HOWARD J Catchwords: FAMILY LAW – PARENTING – Where the parties entered into negotiations – Where a psychologist who is assisting the family recommended the making of an order which allowed the matter to be revisited (if necessary) within the next 12 months – Where the Court is satisfied that such an order is in the best interests of the child. Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 10, 11 October 2022 Date of judgment: 11 October 2022 Place: Brisbane Counsel for the Applicant: Ms Wardle Solicitor for the Applicant: Ferrall & Co Lawyers Counsel for the Respondent: Mr van der Weegen Solicitor for the Respondent: Freedom Law Counsel for the Independent Children’s Lawyer: Mr Bunning Solicitor for the Independent Children’s Lawyer: SJP Law ORDERS
BRC 11347 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MOORE
Applicant
AND: MS MOORE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
11 OCTOBER 2022
THE COURT NOTES THAT:
A.On 10 October 2022, the parties attended at the Court for the commencement of a five (5) day trial.
B.The parties and the Independent Children’s Lawyer entered into negotiations in an attempt to reach a final agreement.
C.During the course of those negotiations, Ms B provided her opinion to the Independent Children’s Lawyer and stated her preference for the making of an interim order rather than a final order at this stage.
D.Ms B’s opinion was conveyed verbally to the parties on 10 and 11 October 2022 and to the Court (in part) on 11 October 2022.
E.A memorandum containing a summary of Ms B’s opinion shall be drafted by the Independent Children’s Lawyer and a copy of the same provided to the parties and tendered to the Court to be marked Exhibit 1.
F.It is the intention of the father, the mother and the Independent Children’s Lawyer that these interim Orders shall become final Orders at 4.00pm on 10 October 2023 if the matter is not reactivated under Order 36.
G.For clarity, the Court has stipulated a time (4:00pm on 10 October 2023) as the time that the liberty to apply clause lapses.
H.Despite the fact that the parties (initially) referred to the Order as an “interim” order – the Order is, to all intents and purposes, a final order which, for the first 12 months, contains a liberty to apply clause. This appeared to be the import of the submission made by the counsel on behalf of the Independent Children’s Lawyer.
I.Notations G and H were added by the Court at the time of the publication of this Order.
J.In the event that the Independent Children’s Lawyer or one of the parties wishes to make a submission concerning the inclusion of the time of day and the date (4:00pm on 10 October 2023) in this Order – they should do so no later than 31 October 2022.
THE COURT ORDERS BY CONSENT:
1.That all previous Orders shall be discharged.
Parental Responsibilities
2.That the parents shall have equal shared parental responsibility for X born 2014 (“the child”) in relation to the major long-term decisions for the care, welfare and development involving the child, including, but not limited to:
(a)The education of the child – both current and future;
(b)The religion of the child;
(c)The health of the child;
(d)Any change to the child’s living arrangements, including their residence that may make it significantly more difficult for the child to spend time with any parent.
3.That at least four (4) weeks prior to making any significant decision (unless it is an emergency or as soon as possible if it is not possible to allow this timeframe) the parent proposing the issue shall:
(a)contact the other parent in writing setting out the decision to be made and any other information relevant to that decision along with what they believe is their position in relation to the issue and seek the other parents views on the subject;
(b)Within two weeks the other parent shall respond in writing setting out their views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe);
(c)The parents shall then make their best endeavours to make a joint decision taking into account the views of the other parent; and,
(d)If the parents are unable to reach a joint decision then they shall undertake mediation at equal cost to resolve the issue.
4.That the parents shall have sole responsibility for making decisions about the day to day care, welfare and development of the child during the times when the child is living them.
5.That the child live with the mother.
Time with the father
6.That the child shall spend time with the father as agreed between the parents in writing but failing an agreement as follows:
Stage one
(a)The child will spend time with the father for four (4) visits occurring fortnightly following the making of these orders from after school Friday until 7.00pm.
Stage two
(b)On and from 10 December 2022 the child will spend time with the father for six (6) visits occurring fortnightly from Saturday from 9.00am to 5.00pm.
Stage three
(c)On and from 3 March 2023 the child will spend time the father for twelve (12) visits occurring fortnightly from after school Friday to Saturday at 5.00pm.
Stage four
(d)On and from 18 August 2023 the child will spend time with the father for twelve (12) visits occurring fortnightly from after school Friday to Sunday at 5.00pm.
Stage five
(e)On and from the commencement of the school year in 2024 the child will spend from after school Friday until before school Monday occurring fortnightly.
7.That unless otherwise agreed in writing:
(a)For the purposes of change over that do not occur at school then it shall be at McDonalds at Suburb C after 5.30 pm and Suburb D Car Park before 5.30pm;
(b)On a changeover day the mother shall not attend the child’s school during the school day.
8.That from Stage five, should the time spending arrangement be preceded or followed by a non-school day then the child will spend that time with the parent who is due to have the child that weekend.
9.That from Stage one to four, the father will offer the mother the first right of refusal if he is not available to care for the child for any overnight period.
10.That from stage five, unless otherwise agreed, the parents will offer the other parent the right to care for the child if the other parent is not available to care for the child for more than three nights.
Telephone Time
11.That unless otherwise agreed in writing, that when the child is not spending time with the mother, the mother shall be permitted to call, skype or use any other electronic means
(a)When weekend time is occurring each Sunday morning at 10.00am and 11.00am;
(b)When school holiday time is occurring each Tuesday and Thursday between 6.00pm and 7.00pm.
12.That unless otherwise agreed in writing, that when the child is not spending time with the father, the father shall be permitted to call, skype, or use any other electronic means each Tuesday and Thursday between 6.00pm and 7.00pm.
13.That the parents are to facilitate communication at the child’s request at all reasonable times.
14.The parents shall afford the child privacy whilst communicating with the other parent.
15.The parents shall ensure that the communicating device is operational to allow such communication.
School Holidays
16.That unless otherwise agreed between the parents in writing but failing agreement for school holidays, the following provisions will apply in lieu of time spending arrangements unless expressed otherwise (and provided the father is not working until 2025):
(a)While the father is in stage one and four, there will be no special school holiday provisions for either parent and the time spending arrangements in Order 5 shall apply;
(b)In the Christmas period commencing at the end of 2022 the father shall spend time with the child at a time on two occasions nominated by him with sixty (60) days’ notice from 9.00am to 5.00pm;
(c)In the Christmas period commencing at the end of 2023 the father shall spend time with the child by nominating two periods of one week each at least two (2) months prior to the commencement of the Christmas holidays;
(d)In the Christmas period commencing at the end of 2024 onwards the father shall spend time with the child by nominating a two week period at least two (2) months prior to the commencement of the Christmas holidays;
(e)From Stage five, the father shall spend time with the child in the last week of Easter, June/July and September holiday periods each year;
17.That from Christmas school holidays 2025, the father be at liberty to request a further two (2) weeks of holiday time in the Christmas school holiday time, not more than once every two (2) years upon the father giving the mother sixty (60) days’ notice at least of whether he intends to activate this Order and what days he intends to activate the time for; (this time shall not interfere with the mothers Christmas time).
18.That in the event there is a special occasion that a parent seeks for the child to attend on a weekend or school holidays that the child is not otherwise spending time with them, that parent shall provide the other parent with seventy-two (72) hours’ notice of that request at a minimum, in writing via text, email or in a letter along with their proposal for make-up time. The other parent shall respond within twenty-four (24) hours of receiving the request in writing via text, email or in a letter. If no agreement can be reached in writing prior to the time spending period then the Orders of this Court will be adhered too.
Special Occasions
19.That unless otherwise agreed in writing, time spent on special occasions will be as follows:
Christmas
(a)The father shall spend time with the child on Christmas Day
(i)2022 from 9.00am to 5.00pm;
(ii)Thereafter, from 2.00pm Christmas Eve to 2.00pm Christmas Day in odd years and from 2pm Christmas Day to 2.00pm Boxing Day in even years.
(b)The mother shall spend time with the child from 2023 from 2.00pm on Christmas Day to 2.00pm on Boxing Day in odd years and on even years from 2.00pm Christmas Eve to 2.00pm on Christmas Day.
Easter
(c)From 2024, the father shall spend time with the child from 2.00pm Easter Saturday to 2.00pm Easter Sunday in even years and from 2.00pm Easter Sunday to 2.00pm Easter Monday in odd years.
(d)The Mother shall spend time with the child from 2.00pm Easter Sunday to 2.00pm Easter Monday in even years and from 2.00pm Easter Saturday to2.00pm Easter Sunday in odd years.
Mother’s Day/Father’s Day
(e)The mother shall spend time with the child from after school on the Friday before Mother’s Day to before school Monday the day after Mother’s Day if the children would ordinarily be in the father’s care.
(f)The father shall spend time with the child:
(i)From after school on the Friday before Father’s Day to 5pm Sunday on Father’s Day in 2023;
(ii)Thereafter from after school on the Friday before Father’s Day to before school on the Monday after until Father’s Day if the child would ordinarily be in the mother’s care;
And that there be make-up time if it interferes with the other parents time.
Child’s birthday
(g)If the child’s birthday falls on a weekend or non-school day and is in the Fathers care then the children will spend time with the Mother from 9.00am to 3.00pm in odd numbered years and in alternate years thereafter from 3.00pm to 7.00pm.
(h)If the child’s birthday falls on a weekend or non-school day and is in the Mothers care then the children will spend time with the Father from 3.00pm to 7.00pm in odd numbered years and 9.00am to 3.00pm in even numbered years.
(i)If the child’s birthday falls on a school day and is in the Mothers care then the Father shall spend time with the child from after school to 7.00pm and if the children is in the Fathers care then the Mother shall spend time with the child from after school to 7.00pm.
Fathers/Mothers Birthday
(j)That the child will spend time with the Father from 9.00am to 5.00pm if the father’s birthday falls on a weekend when the mother is due to spend time with the child. That the child will spend time with the Father from after school to 7.00pm if the father’s birthday falls on a weekday and the children is in the mother’s care.
(k)That the child will spend time with the Mother from 9.00am to 5.00pm if the mother’s birthday falls on a weekend when the father is due to spend time with the child. That the child will spend time with the Mother from after school to 7.00pm if the mother’s birthday falls on a weekday and the child is in the father’s care.
(l)And that there be make-up time if it interferes with the other parents time.
Exchange of Information
20.That all parents shall ensure the other parents are kept informed as soon as is reasonably practicable, via email, SMS, or WhatsApp of:-
(a)Any serious medical problems/emergencies or illness suffered by the child, whilst in the care of that parent (notification is to be provided forthwith with details of the illness/injury as well as the treating Doctor/hospital if applicable) and both parents are able to attend upon the service providing medical care;
(b)Any medication that has been prescribed for the child;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)The residential address of the parent (within at least forty-eight (48) hours of the change);
(e)The telephone contact numbers of the parent (within at least forty-eight (48) hours of the change);
(f)The email address of the parent (within at least forty-eight (48) hours of the change);
(g)Any other matter relevant to the welfare of the child including but not limited to matters like sporting activities, special school events (e.g. sporting award being presented) and any special days for extra curriculum activities (e.g. trophy day).
21.That this order operates as an authority for any professional care provider of the child (whether school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child at their own expense.
22.That either parent shall be permitted to liaise directly with the child’s providers, school and sporting and extra curriculum bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the child, at the requesting parents’ expense.
23.That this order authorizes the parents to liaise with, attend appointments with and obtain any information and documents regarding the child from any medical or other health care provider.
24.That each parent is at liberty to attend at the said child’s school, sporting event or extra curriculum activity for the purposes of any function or activity normally attended by parents.
25.That the parents shall with seven (7) days of this order, sign all documents and submit all documents to have the fathers name recorded as a parent on any school or activity that the child is enrolled in and also name the father as an emergency contact.
Restraint
26.That the parents shall not denigrate the other in the presence or sight of the children and shall immediately remove the child from the presence of anyone who engages in that sort of conversation.
27.That the parents shall not discuss issues of adult conflict arising from the Court Orders in the presence or sight of the children and shall immediately remove the child from the presence of anyone who engages in that sort of conversation.
Sports or Extracurricular activity
28.That the mother shall notify the father of all sports or extracurricular activity that the child is currently enrolled in within seven (7) days of this Order;
29.That no parent shall enrol the child in an activity that impacts upon the other parent’s time without the prior written consent of that parent. Should the child be enrolled in an activity by consent both parents shall bear the cost equally unless otherwise agreed in writing.
30.That the parents are at liberty to enrol the child in any sport or extracurricular activity in their own time at their own cost.
Passport and Overseas Travel
31.That the mother shall retain the passport during non-travelling periods.
32.That that the parents agree either parent should be permitted to take the child out of Australia for holidays and in relation to the other parent taking the child out of Australia the parents agree as follows:
(a)The child may only travel to Hague Convention Countries and not to any destination listed by the Australian Department of Foreign Affairs as “advised not to travel” or “reconsider your need to travel” (save for any airport stopovers, and unless otherwise agreed by the other parent);
(b)As far as practical the occasions on which the travelling parent takes the child out of Australia is to coincide with the child’s school holidays;
(c)That in the event that the overseas travel includes time during the non-travelling parents school holiday period the parents will reach agreement on make-up time to be arranged for the non-travelling parent, equivalent to the time which was missed as part of the agreement to travel;
(d)That the travelling parent may only takeover up two weeks of the non-travelling parents school holiday period at Christmas time;
(e)The travelling parent will give the non-travelling parent as much notification as possible of the intention to take the child out of Australia and in any event will give not less than sixty (60) days written notice of such intention;
(f)The travelling parent, at least sixty (60) days prior to departure, furnish to the non-travelling parent an accurate itinerary to include departure and return dates, the country or countries the travelling parent and the child will be travelling to, the approximate dates on which the child will arrive and depart each country and a landline/mobile communication device and address at which the travelling parent and the child can be contacted in each country;
(g)Upon receipt of same the mother shall immediately give the father if he is the travelling parent the passport for the child;
(h)The traveling parent shall then as soon as possible provide the other parent with a copy of the return air tickets for the child;
(i)During the trip the travelling parent shall arrange for the child to telephone/communicate with the other parent twice per week;
(j)The travelling parent will as soon as possible inform the other parent of any changes to the itinerary; and
(k)That upon their return to Australia, the father will return the passport to the mother at the next changeover day.
Other
33.That Ms B shall explain the orders of this Court to the child and specifically that the parents have agreed and support the order and the regime of time for X and his father.
34.That the child shall attend counselling with Ms B on a monthly basis or as can be accommodated for the next twelve months, the cost of which shall be borne equally and thereafter as recommended by the psychologist. If Ms B is not able to continue to provide psychological care to the child then the parents shall agree another psychologist.
35.That the child’s treating doctor, Dr E and Dr F and Dr G shall remain the same unless otherwise agreed in writing or if those professionals refuse to consult with or provide information to the father or allow the father to attend appointments.
36.That the parents and the Independent Children’s Lawyer are at liberty to apply upon the giving of seven (7) days’ notice to each party at or before 4.00pm on 10 October 2023.
37.That these interim Orders shall become final orders at 4.00pm on 10 October 2023 if the matter is not reactivated under Order 36.
38.The Independent Children’s Lawyer shall be discharged on 10 October 2023 at midnight if the matter is not reactivated under Order 36.
39.That the child attend H School.
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 Moore & Moore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
The matter before the Court relates to one child, X, born 2014. X is the child of Mr Moore and Ms Moore. The parties commenced cohabitation in early 2013, and separated on a final basis more than six years later in August 2019. There seems to have been a dispute over X’s care since that time. The parents have made quite significant allegations, one against the other. Some of the allegations relate to family violence. Some of the allegations relate to alienation. It is apparent from the notations contained in the order, the parties attended at the Court for a final hearing to commence before me on Monday, 10 October 2022.
Each party is represented by counsel. The applicant father by Ms Wardle, the respondent mother by Mr van der Weegen, and Mr Bunning of counsel appears for the Independent Children’s Lawyer, Mr Shearer. It is also apparent, from the notations, the parties commenced negotiations with the intention of reaching a final agreement, but during the course of those negotiations, Ms B provided a verbal opinion to the Independent Children’s Lawyer, and to his counsel.
And in that opinion, Ms B stated her preference for the making of an interim order in terms similar to the orders made today. Her preference was for an interim order at this stage, rather than a final order, to give the parents a chance to make this order work. Clearly, the intent behind the order is to produce an outcome for X which is less disruptive than other possible outcomes.
Once Ms B’s verbal opinion was conveyed to the parties and to the Court, it became apparent that an interim order in the terms as executed at this point in time is in the best interests of X. I am satisfied that is the case. Mr Shearer will be providing to the Court, and to the parties, a memorandum, which will be a summary of the verbal opinion provided by Ms B. That particular memorandum will be tendered to the Court, and will be marked Exhibit 1.
Importantly, I note that it is the intention of the father and the mother and the Independent Children’s Lawyer that these interim orders shall become final orders on 10 October 2023. The order made today will, through the mere effluxion of time, become a final order at 4.00pm on 10 October 2023 unless the matter has been reactivated under Order 36 prior to that time.
The intention is that either the mother or the father or the Independent Children’s Lawyer will be at liberty to apply with the Court to relist the matter at or before 4.00pm on 10 October 2023. This will avoid the need to comply with the rule in Rice & Asplund (1979) FLC 90-725. I made it clear to the parents today, when the matter was mentioned on day 2 for the making of these orders, that the Court fully expects that the parents will use their absolute best endeavours, and aim at all times towards the implementation of these orders in as smooth a manner as possible, with a view to these orders becoming final on 10 October 2023.
In the particular circumstances as outlined to the Court by Mr Bunning of counsel and having heard from the other counsel as well, the view of the Court is that the orders are in the best interests of X and that it is in the best interests of X, at this point in time, for these orders to be interim orders with a view to them becoming final orders on 10 October 2023.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 25 October 2022
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