Papp & Myers
[2020] FamCA 127
•22 May 2020
FAMILY COURT OF AUSTRALIA
| PAPP & MYERS | [2020] FamCA 127 |
| FAMILY LAW – CHILD – Relocation – one child of a brief relationship – where the parents were not married or in a de facto relationship – where the mother moved to a town during her pregnancy and the early years of the child’s life – where the father did not have a relationship with the child for the first 16 to 17 months of the child’s life – where there is no dispute that the mother is the primary carer – where the mother returned to Sydney – where the child developed a secure attachment to the father –where the mother has unilaterally relocated back to the town – where there is about 670 kilometres between residences of the parents – where the father is in a stronger financial position – where the mother was an unreliable witness – where the father seeks an order that the child live with him – where the father does not seek a coercive order for the mother to return to Sydney – best interests of the child – where the COVID-19 pandemic broke before judgment was delivered – where parties were ordered to provide further written submissions in respect of the impact of the pandemic – where orders are made for the child to live with the mother – where orders are made for the child to spend substantial and significant time with the father. |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 62B, 65D, 65DA, 65DAA, 65DAB, 65DAC |
| Adamson & Adamson (2014) FLC 93–62 AMS v AIF (1999) 199 CLR 160 Banks & Banks (2015) FLC 93-637 Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 CDJ v VAJ (1998) 197 CLR 172 Chamness v Hanson (2009) FLC 93-407 Cox v Pedrana (2013) FLC 93–537 Fitzroy v Fitzroy [2009] FamCA 954 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders [2007] FamCA 102 In the marriage of A (1998) FLC 92-800 Jollie & Dysart [2014] FamCAFC 149 Kardos & Harmon [2020] FamCA 328 M & S (2007) FLC 93-313 Maldera & Orbel (2014) FLC 93-602 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Morgan & Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461 Papp & Myers (No. 2) [2019] FamCA 825 R & C (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) Ribeiro v Wright 2020 ONSC 1829; [2020] CarswellOnt 4090 Sayer v Radcliffe (2012) 48 Fam LR 298 Sigley & Evor (2011) 44 Fam LR 439 Tibb & Sheean (2018) 58 FamLR 351 U v U (2002) 211 CLR 238 Vallans & Vallans (2019) 60 Fam LR 193 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Papp |
| RESPONDENT: | Ms Myers |
| INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers |
| FILE NUMBER: | SYC | 5372 | of | 2018 |
| DATE DELIVERED: | 22 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 27 & 28 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPLICANT: | Michael Conley Lawyers |
| THE RESPONDENT IN PERSON: | Ms Myers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Greenway |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Newland |
Orders
That from 1 June 2020 all previous Orders be discharged and the following orders shall commence operation.
That MR PAPP (“the father”) and MS MYERS (“the mother”) (collectively known as “the parties”) have equal shared parental responsibility for all major long-term decisions concerning the care, welfare and development of X born 2015 (referred to as “the child”), including but not limited to:
(a) education, including choice of schooling;
(b) religious and cultural upbringing;
(c) health and medical issues; and
(d) changes to the child’s living arrangements that make it significantly more difficult for the child to live with or spend time with the other parent.
Each party has responsibility for making decisions for the child that are not major or long-term decisions during the periods in which the child is living or spending time with that party.
The child live with the mother.
Time with the father
Unless otherwise agreed between the parties in writing, the child spend time with the father as follows:
(a) Commencing from 1 June 2020 until the child commences school in 2021:
(i)From Saturday morning until Sunday evening on the second and fourth weekend of each month for two (2) consecutive months to commence on the second weekend of June 2020;
(ii)Thereafter, from Saturday morning until Monday afternoon on the second weekend and fourth weekend of each month for two (2) consecutive months;
(iii)Thereafter, from Friday morning to Tuesday afternoon on the second weekend and fourth weekend of each month for two (2) consecutive months; and
(iv)Thereafter, from Friday morning to Wednesday afternoon on the second weekend of each month.
(b) From 2:00 pm on Christmas Day, 25 December 2020 to Tuesday morning on 29 December 2020 at a time agreed between the parties, or in the absence of agreement as nominated by the father.
For the purposes of Order 5(a):
(a)Subject to Order 6(b), the child’s time with the father shall occur in the immediate area of Town B or the Gold Coast; and
(b)if the father gives the mother no less than 7 days’ notice, at his discretion, that he wishes to spend time with the child on the second weekend of each month in Sydney, the child’s time with the father shall occur in Sydney.
School Term
Unless otherwise agreed between the parties in writing, upon the child commencing school in 2021, during school terms the child shall spend time with the father on the second and fourth weekend of each month from after school on Friday afternoon until Sunday before 5:00 pm, in the immediate area of Town B or the Gold Coast at the sole discretion of the father.
Notwithstanding Order 7, on no less than four weekends during term time each calendar year the child shall spend time with the father in Sydney, as agreed between the parties, and in the absence of agreement, as nominated by the father with no less than 21 days’ notice, with such nomination to coincide with a weekend of the father’s time specified in Order 7.
School Holidays
Unless otherwise agreed between the parties in writing, upon the child commencing school in 2021:
(a) during the school term holiday periods, the child shall spend time with the father from the end of school on the last day that the child is required to attend school until the afternoon of the second Wednesday of the school term holiday period, at a time to be agreed between the parties and in the absence of agreement at a time nominated by the father; and
(b) during Christmas holidays:
(i)In 2021 and all odd-numbered years thereafter, the child is to spend time with the father from the afternoon of the last day the child is required to attend school for term four, until the middle day of the Christmas school holiday period; and
(ii)In 2022 and all even-numbered years thereafter, the child is to spend time with the father from the middle day of the Christmas school holiday day period until the afternoon of the day before the commencement of term 1 of the school terms the following year.
Special Occasions and Long Weekends
Notwithstanding any other order, the child shall spend time with the parties on special occasions and long weekends as follows, unless otherwise agreed between the parties in writing:
(a) Upon the child commencing school, the child spend time with the father from Friday afternoon to Monday afternoon on the Queen’s Birthday and Labour Day long weekend in each year where that weekend does not fall in the school term holiday period.
(b) For Easter:
(i)In 2021 and all odd-numbered years thereafter, if the child is not already spending time with the father, the child is to spend time with the father from 10:00 am Good Friday until 10:00 am Easter Sunday; and
(ii)In 2021 and all odd-numbered years thereafter, if the child is not already in the care of the mother, the child is to spend time with the mother from 10:00 am Easter Sunday until 10:00 am Easter Tuesday (or at the commencement of school on the Tuesday after Easter);
(iii)In 2022 and all even-numbered years thereafter, if the child is not already in the care of the mother, the child is to spend time with the mother from 10:00 am Good Friday until 10:00 am Easter Sunday; and
(iv)In 2022 and all even-numbered years thereafter, if the child is not already spending time with the father, the child is to spend time with the father from 10:00 am Easter Sunday until 10:00 am Easter Tuesday (or at the commencement of school on the Tuesday after Easter).
Mother’s Day and Father’s Day:
(a) If the child is not otherwise scheduled to spend time with the mother on Mother's Day, the parties will otherwise take all necessary steps to ensure that the child will spend time with the mother for a six (6) hour block on the Mother’s Day weekend; and
(b) If the child is not otherwise scheduled to spend time with the father on Father's Day, the parties will otherwise take all necessary steps to ensure that the child will spend time with the father for a six (6) hour block on the Father’s Day weekend.
The father’s birthday:
(a) If the father’s birthday falls on a weekend that the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, the child shall spend time with the father for a six (6) hour block as elected by the father on the father’s birthday in the immediate area of Town B or the Gold Coast.
(b) If the father’s birthday falls on a weekday, notwithstanding any other order, at the father’s discretion, the child shall spend time with the father for a six (6) hour block as elected by the father in the immediate area of Town B or the Gold Coast the Sunday immediately after his birthday.
If the mother’s birthday falls on a weekend on which the child would otherwise be in the father’s care in accordance with these orders, at the mother’s discretion the child shall spend time with the mother for a six (6) hour block as elected by the mother, in in the immediate area of Town B.
The child’s birthday:
(a) If the child’s birthday falls on a weekend in which the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, the child shall spend time with the father as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time as elected by the father in the immediate area of Town B.
(b) If the child’s birthday falls on a weekend in which the child would otherwise be in the father’s care in accordance with these orders, at the mother’s discretion, the child shall spend time with the mother as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time as elected by the mother.
(c) If the child’s birthday falls on a weekday in which the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, if the child would not otherwise be spending time with the father in accordance with these order, the child shall spend time with the father as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time the following weekend as nominated by the father in the immediate area of Town B.
COVID-19
At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.
In addition to any statutory obligations for consultation to reach consensus about major long-term issues in relation to the child, both parties shall use their best endeavours to communicate regularly by phone, text message, email or other means, to seek agreement on the management of issues affecting the child arising from the COVID-19 pandemic.
Changeover
That, unless otherwise agreed between the parties in writing, changeovers shall occur as follows:
(a) That, prior to the child commencing school, for the purpose of Orders herein where it is specified that the father’s time with the child is to occur in the immediate area of Town B or the Gold Coast, changeover shall occur by way of the father collecting and returning the child from and to the mother’s residence at a time agreed between the parties, or in the absence of agreement as nominated by the father;
(b) That the purpose of Order 5(b) changeover shall occur by way of the father collecting and returning the child from and to the mother’s residence;
(c) That for the purpose of Order 6(b) herein, in the event the father gives notice for his time with the child to take place in Sydney in accordance with Order 6(b), changeover shall occur by way of the mother causing the child to be delivered to the father, and collected from the father, at Sydney Airport at the mother’s expense at a time agreed between the parties, or in the absence of agreement at a time nominated by the mother, or at such other time and place as the parties may agree in writing;
(d) Upon the child commencing school, unless otherwise agreed between the parties in writing, during school terms:
(i)when the father’s time is to take place in the immediate area of Town B or the Gold Coast:
(a)if his time commences or concludes on a school day, changeover shall take place at the child’s school;
(b)For the purpose of Order 7 the father shall deliver the child to the mother’s residence at the conclusion of his time;
(c)if his time does not commence or conclude on a school day, changeover shall take place at Town A Airport or at a location in the immediate area of Town B or the Gold Coast nominated by the father at his sole discretion, at a time agreed between the parties, or in the absence of agreement, at a time nominated by the father. For the avoidance of doubt, each party is to pay their own expense to travel to Town A Airport or such other location nominated by the father.
(ii)when the father’s time is to take place in Sydney, changeover shall occur by way of the mother causing the child to be delivered to the father, and collected from the father, at Sydney Airport at the mother’s expense at a time agreed between the parties, or in the absence of agreement at a time nominated by the mother, or at such other time and place as the parties may agree in writing.
(e) Upon the child commencing school, unless otherwise agreed between the parties in writing, during school holidays:
(i)where the father’s time commences or concludes on a school day, changeover shall take place at the child’s school; and
(ii)where the father’s time does not commence or conclude on a school day changeover shall take place at Town A Airport or at a location in the immediate area of Town B or the Gold Coast as nominated by the father in his sole discretion, at a time agreed between the parties, or in the absence of agreement, at a time nominated by the father.
Electronic Communication
The father communicate by Facetime, Skype or voice calls with the child when the child is in the mother’s care pursuant to these Orders as follows:
(a) Each Monday, Wednesday and Friday from 7:00 pm to 7:30 pm;
(b) On the child’s birthday from 7:00 pm to 7:30 pm;
(c) On the father’s birthday from 7:00 pm to 7:30 pm; and
(d) On Christmas Day from 9:00 am to 9:30 am.
The mother communicate by Facetime, Skype or voice calls with the child when the child is in the father’s care pursuant to these Orders as follows:
(a) Each Sunday 7:00 pm to 7:30 pm;
(b) On the child’s birthday from 7:00 pm to 7:30 pm;
(c) On the mother’s birthday from 7:00 pm to 7:30 pm; and
(d) On Christmas Day from 9:00 am to 9:30 am.
In the event the child is unable to spend time with either parent as a result of any government restrictions, the parent with whom the child was meant to spend time with shall be at liberty to speak with the child on two occasions per day between 9:00 am and 11:00 am and 4:00 pm and 8:00 pm using Facetime, Skype or voice calls.
Parenting Program
That within three (3) months from the date of these Orders (or otherwise the first available opening), the mother shall complete the program known as “Parenting After Separation” program pursuant to her current enrolment and upon completion, the mother is to provide to the father with a copy of her completion certificate by email.
Travel
Neither party shall remove the child from the Commonwealth of Australia without having first obtained the consent of the other parent in writing.
That, subject to any state or federal government restrictions, the mother and father shall be at liberty to travel domestically or internationally with the child for the purpose of a holiday during their time with the child in accordance with these Orders, or at such other times that the parties may agree in writing, provided that the following occurs:
(a) the party proposing to travel with the child shall give the other party at least eight (8) weeks’ notice in writing of their intention to travel with the child, which shall include the proposed destination and dates;
(b) the party proposing to travel with the child shall give the other party with copies of all confirmed airline bookings, detailed itinerary including accommodation details and dates, and contact numbers for the child for the duration of the holiday; and
(c) the child’s passport is to be retained in the first instance by the mother and thereafter by the party who last travelled with the child and the party who holds the child’s passport is to provide such passport to the travelling party if required two (2) weeks prior to any international travel with the child after compliance with Orders 24(a) and (b) herein.
Both parties will as soon as practicable do all things necessary to apply for and thereafter renew the child’s Australian Passport from time to time and shall not unreasonably withhold consent for such renewal. Each party shall pay one half of the cost associated with the issuing and renewal of the child’s Australian Passport.
Other Orders
That each party, to the best of their ability, is to do all things necessary to ensure that while in their respective care, the child shall attend any extracurricular, sporting or cultural activities in which he may be participating from time to time including any training or tuition relating to that activity, and both parents are at liberty to attend such activity as a spectator if the activity allows such attendance.
Except with the written consent of the other parent both the mother and father are restrained from enrolling the child into any extracurricular activity which is to take place at a time when the child is to spend with the other parent pursuant to these Orders.
Information
Both parties shall keep the other informed as to their respective residential addresses and contact numbers at all times. If either party plans to change their residential address, that party shall give the other party at least twenty-one (21) days’ written notice of such intention and details of the proposed new address and accommodation.
Each of the mother and the father shall provide the other with information as soon as practicable upon the happening of the following:
(a)events related to the general health of the child including but not limited to medical appointments, tests results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointments); and
(b)matters related to the child’s education including but not limited to parent/teacher interviews, disciplinary matters, achievements, awards, concerts and special events, sports days, newsletters and notices.
Each parent shall inform the other immediately or if not possible, three (3) hours upon the happening of any medical emergency involving the child including but not limited to serious illness, accident or hospitalisation.
The parties will in a timely manner:
(a) provide a copy of these Orders to any school which the child may from time to time attend and authorise same to provide particulars to the other party of the child’s welfare, progress at school, education, special needs of the child, details of upcoming functions or activities and to provide copies of school reports and like information.
(b) provide to the other parent copies of all notices received from the school and details of any social, school or religious functions which the child is to attend.
Non-denigration
Each party is hereby restrained from:
(a) denigrating the other parent within the presence or hearing of the child or causing any other person with whom they reside to denigrate the other parent within the presence or hearing of the child.
(b) discussing with the child or with any other person in the child’s presence details of these proceedings.
(c) discussing the implementation and mechanisms of these Orders with the child. All organisation and planning in relation to the child must be made between the parties.
Disputes or Variations
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Pursuant to sections 65DA(2) and 62B of the Act, 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Papp & Myers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5372 of 2018
| Mr Papp |
Applicant
And
| Ms Myers |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between the applicant father, Mr Papp (“the father”) and the respondent mother, Ms Myers (“the mother”) in relation to the child of the relationship, X born … 2015, and presently four years of age (“the child”). The mother is currently unemployed and the father is employed as a manager in a family owned business.
There was no dispute that the mother has been the primary carer of the child at all times up to the trial. There was also no dispute the child has a secure attachment to the father. The child currently resides with the mother and the maternal grandparents in Town B. The mother relocated to Town B in June 2018, stating this was on a final basis. The father lives in Suburb C, Sydney. There is an approximate driving distance of 670 kilometres between the residences of the parties. This is a central cause of contention between the parties. At the time of the final hearing, there was no direct flight from Sydney to Town B. Rather, travel from Sydney to Town B required a flight to Town A Airport or Town GG Airport, taking approximately 1 hour and 15 minutes, followed by a further one to one and a half hours’ drive from the airport by car.
The mother claims she intends to remain living in Town B. As well as her parents, she claims she has a network of support there. She proposes the child spend time with the father, primarily in Town B but also on a few occasions in Sydney. She argues that the father should bear the bulk of the burden of cost and travel because he has greater access to financial resources.
The father has proposed orders that the child live with him in Sydney and spend time with the mother. He had previously proposed orders that the child live with the mother and spend time with him. He gave evidence that he changed his mind because of the mother’s persistent breach of interim orders and rejection of “every proposal” put by him. His proposed orders in practice would give the mother a choice about the time she spends with the child, depending where she chooses to live, Sydney or Town B. In the event the mother chooses to reside in Sydney, the father has offered an undertaking to pay child support, private health insurance for the child, day care costs for up to three days of attendance and/or private school fees and all unrelated school extra-curricular expenses. The father has also offered for two years, on a conditional basis, to pay up to $750 per week for a two bedroom apartment within a 15 kilometres radius of School R in Suburb C, and will provide a bond for the rental premise.
The mother advised the Court that this proffered arrangement would not work for her and the child. She maintained that orders should be made for the child to continue to live with her in Town B.
This is a regrettable case in which, as the expert expressed it, there were problems with both parents, neither was actually prioritising the child, and both were caught in “some massive control battle”, which both “intended to win”. The mother’s conduct, in particular, leading up to the trial was surprising, to say the least. It was the subject of extensive scrutiny by the father, requiring in turn detailed consideration in the judgment, as disclosed later in these reasons.
The attitude of both parents disclosed by the evidence in this case prompts a strong reminder that the legislative intent of Part VII of the Family Law Act 1975 (Cth) (“the Act”) is to focus on “the rights of children, on the one hand, and the duties, obligations and responsibilities of parents on the other” (original emphasis): per Kent J sitting as the Full Court in Vallans & Vallans [2019] FamCAFC 260; (2019) 60 Fam LR 193 at [39], following Blaze & Anor & Grady & Anor [2015] FamCA 1064; (2015) 54 Fam LR 172 at [101]. In proceedings under Part VII, unlike civil litigation based on causes of action for the enforcement of rights, parents do not prove a case to enforce their rights; “Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character”: per Austin J in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 at [134], citing CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at 231. As the following reasons explain, both parents revealed a tendency to think in terms of their rights as a parent to control outcomes.
Despite the father’s, at times, legitimate criticism of the mother, for the reasons which follow, I am satisfied the child should continue to live with the mother and spend substantial and significant time with the father. I will discuss the practicalities of this later in these reasons. While this outcome is reached in the face of disappointing conduct of the mother which is criticised in the reasons which follow, and may dissatisfy the father, I am satisfied it is in the best interests of the child.
Some further introductory remarks should be made. After the final hearing had been completed and judgment had been prepared, but not finalised and delivered, the COVID-19 pandemic broke out. This has seriously disrupted the ordinary patterns of life in Australia. It was clearly not in the contemplation of either the Court or the parties at the time of final hearing. The Court sought and received further submissions from the parties and the Independent Children’s Lawyer because of the pandemic. The delivery of judgment was delayed as a result.
More importantly, travel between the homes of the each parent, between Sydney and Town B, has been a consistent problem in these proceedings. Quite obviously, the pandemic has done nothing to make the practicalities of such travel any less problematic.
It is worth repeating certain recent statements from the Canadian decision in Ribeiro v Wright 2020 ONSC 1829; [2020] CarswellOnt 4090, regarding the challenges thrown up by COVID-19 in litigation about parental access. Justice Pazaratz said at [18] “But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely” (original emphasis). And at [30] “None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children”. Justice Pazaratz was referring in particular to the need for parents to seek co-operative outcomes for the sake of their children.
The further submissions from the parties illustrate both parents, but especially the mother, tried harder, but not in the way Justice Pazaratz suggested. The father pointed to the pandemic as further support for his contention the child should live with him. The mother took the opportunity to make submissions which contained reference to further factual matters, which do not form part of the evidence, to suggest the father’s time with the child should be further limited. For example, the mother gave factual detail of her present understanding of flight timetables between Sydney and Town A Airport and Town GG Airport.
It is extremely difficult to take this sort of material into account. Putting aside the fact that this material was not available at the final hearing, I take judicial notice of the fact that the situation regarding travel in NSW is constantly changing. No one sought to re-open to tender further evidence. No Application in a Case has been filed by the mother. As a self-represented litigant, it might be thought the mother may not have understood the requirements for applying to re-open. However at page 4 of her further submissions the mother states “I am currently seeking advice in relation to submitting an Application in a Case to reopen evidence” to reflect a number of assertions that the father poses a risk to the child. This statement, together with the matters set out below at [79] to [82], satisfy me the mother was aware of the correct procedure but has chosen not to use it.
I propose to take judicial notice of the restrictions on travel in NSW presently in operation, published on the NSW Government website at One permissible exception to the requirement that people do not travel is to “continue existing arrangements for access to, and contact between, parents and children for children who do not live in the same household as their parents or one of their parents”. I am satisfied that the orders made on the basis of these reasons, although they do not entirely “continue” existing arrangements, do so up to a point, will create continuing arrangements for access to the child, and will fall within the stated exception. I further note that travel restrictions for travel within New South Wales are to be substantially lifted as at 1 June 2020.
In Kardos & Harmon [2020] FamCA 328 McClelland DCJ took account of a number of publically recorded documents concerning COVID-19 and the pandemic. McClelland DCJ gave the parties notice that he proposed to take judicial notice of these documents, for the purposes of s 144 of the Evidence Act 1995 (Cth). Sub-section 144(1) obliges the Court to give the parties an opportunity to make submissions. In the present matter, I invited further submissions. No party referred specifically to a government announcement, or proscriptions on travel particularly. I am satisfied the parties have been given sufficient opportunity to make submissions for the purposes of s 144(4) of the Evidence Act 1995 (Cth) so that no party could be unfairly prejudiced by the judicial notice I propose to take.
As the reasons make clear, both parents will have to try harder. The mother will have to move the need for the child to spend substantial time with his father to the forefront of her thinking, and accept she will have to try very hard to make such time take place. The father will have to accept the limitations of the situation, his relative inexperience in parenting and the burden of travel to spend time with his child.
Background
The parties initially lived together as house mates after the mother moved into the father’s apartment at Suburb C in 2013. At the time they were both in relationships with other people. They later entered into an intimate relationship in about November 2013 (according to the mother) or June 2014 (according to the father). The father contends the relationship was not a “committed one”. According to his own evidence the mother wanted a more committed relationship (His Trial Affidavit, [53]).
The relationship ended in November 2014. It appears that close to the end of the relationship the mother fell pregnant with the child. It appears she informed the father of her pregnancy in January 2015.
At the request of the father, the mother moved out of his apartment in or around January 2015. The mother then relocated to Town B to live with her parents who had retired there from Sydney almost twelve years ago. The child was born on … 2015.
The mother alleges that she did not have any communication with the father from the date she moved out of the father’s apartment up until 25 April 2016 when the child was fifteen months old. The mother says she reached out to the father so that he could meet the child. The father agreed in his evidence that he was “not ready to be fully involved” in the child’s life until late July 2016.
On 23 December 2016, the father first met the child with the mother in Suburb DD. The child was then between 16 to 17 months’ old.
From February 2017, the father began spending more time with the child. According to the father, in February 2017, or March 2017, according to the mother, the mother returned to Sydney to rent a one bedroom apartment in Suburb C. The rent was $450 per week. According to her evidence, the mother made the move so that the child could have a relationship with the father. At the time the father was paying $2,000 per month in child support. The administrative assessment was $1,811.08 per month. The Child Support Agency retained the surplus of $188.92 and the father authorised release of extra money from time to time.
The mother alleges that she was unemployed at that time and paid the rent with money received from child support and from social security payments. According to the mother she found it very difficult, after paying rent, to meet the living expenses for herself and the child. As a consequence, she claims she incurred debts, even with financial assistance from her parents. There was no clear evidence about these alleged debts.
In May 2017, the father offered to send the child to School R, Suburb C or School U, Suburb HH and to pay for all of the child’s enrolment, school fees and school related expenses. In late May 2017, the father completed applications for the enrolment of the child at both schools, and later received confirmation that the child had been added to the waiting list at School U. Both parties attended an interview with the principal of the Early Learning Centre at School R. The mother sent a text message to the father saying:
Ms S (my best friend…) just sent me this message…Her husband is Mr AA and went to School R and so did Ms S’s brother Mr BB…they’re sending their little boy CC to School R too so it’s perfect.
According to the father, from 8 June 2017 the mother commenced paying the sum of $1,995.35 per month in rent.
Also according to the father, in July 2017, he began to see the mother and the child regularly each Sunday for several hours and on odd occasions during the week which increased even further, after July 2017, when he started visiting the child regularly for dinner and before his bedtime.
On 9 August 2017, the father paid a holding deposit of $5,000 to the Early Learning Centre at School R for the child’s position to commence in early 2019 for three days a week with the intention that the child would move into the junior school full time commencing Kindergarten in early 2021.
According to the father on 17 September 2017, he spent his first full day with the child without the mother present from 11:00 am to 5:00 pm and his brother and his brother’s girlfriend were also present.
In late September 2017, the father commenced paying for the child to attend day care at JJ Childcare Centre twice a week. The mother alleges that the father did so unilaterally.
On 27 December 2017, the father states that he had his first dinner alone with the child from 5:30 pm to 9:00 pm, and further that from early 2018 he commenced seeing the child regularly without the mother present during the week on Wednesdays or Thursdays from 5:00 pm until approximately 8:30 pm.
According to the father his first overnight time with the child occurred on 10 February 2018 from approximately 6:00 pm until the following Sunday at twelve noon. Following this, from early 2018 he commenced spending regular overnight time with the child every Wednesday or Thursday from 5:00 pm until 7:30 am the next day, every Saturday from 8:30 am till noon and every Sunday from 8:30 am until 6:00 pm.
In March 2018, the mother signed a 12 month lease for a two bedroom apartment in Suburb T at a weekly rental of $1,000 per week. The father claims the rent was $950 per week. This factual dispute does not require resolution for the purposes of this judgment.
The father alleges that on 10, 13, 19 and 24 March 2018 the child spent overnight time with him and that in May 2018, by agreement with the mother, they increased the number of overnights to two nights per week, with the child spending time with him on 2 May 2018 and 4 May 2018.
The mother went to Town B with the child on 7 May 2018 and returned to Sydney with the child on 7 June 2018. The father claims that from 10 June 2018 to 27 June 2018 he saw the child approximately seven times which included two overnights.
The mother unilaterally relocated to Town B with the child to live with the maternal grandparents on 28 June 2018. This move took place while the father was overseas. According to his evidence, the father learnt of the relocation on 29 June 2018.
As at … June 2018, the child was about 6 weeks short of his third birthday. According to the evidence he had lived from August 2015 until March 2017, about 19 months, in Town B and then in Sydney until June 2018, about 15 months. So at the time of the second relocation to Town B the child had lived almost half his life in Sydney.
The evidence satisfies me that prior to the mother’s move back to Town B in June 2018, the child was spending substantial and significant time with the father including overnight time. The father gave evidence that since June 2018 he has experienced significant difficulties in spending time with the child, and has not spent any time with the child since 1 September 2019, which was Father’s Day, in Town B.
On 27 September 2018, the mother states she wrote to School R informing them that the child would not be attending the school.
The mother presently receives child support in the amount of $1,870.75 per month and social security payments in relation to single parent income and family tax benefit on an alternate weekly basis comprising of $744.40 and $161.40 respectively.
Some Procedural History
The father commenced parenting proceedings in the Family Court of Australia on 23 August 2018 seeking interim and final orders.
Interim orders by consent were made on 3 September 2018 by Loughnan J for the father to spend time with the child for that month alone.
On 5 December 2018, orders were made by Senior Registrar Campbell which permitted the mother to relocate the child’s residence to Town B without provision for the child to spend time with the father, with the proceedings being part-heard and adjourned to 27 February 2019.
On that date, Senior Registrar Campbell made orders for the child to spend time with the father commencing from 23 March 2019 as follows:
2. The child shall spend time with the father as follows:
2.1 From the date of these orders until 15 August 2019, every second weekend commencing 23 March 2019 as follows:
2.1.1 From 10 am Saturday to 5pm Saturday; and
2.1.2 From10am Sunday to 5pm Sunday; provided
2.1.3 For the purposes of Orders 2.1.1 and 2.1.2 the father shall collect the child from the mother’s residence at Town B at the commencement of the child’s time with the father, and the father shall return the child to the mother’s residence at Town B at the conclusion of the child’s time with the father; or
2.1.4 As otherwise agreed between the parties in writing and signed by each of them.
2.2 From 16 August 2019, every second weekend commencing on the first weekend that the child would have spent time with the father pursuant to Order 2.1, had that order extended beyond 15 August 2019, as follows:
2.2.1 From 10am Saturday to 6pm Sunday; provided
2.2.2 For the purposes of Order 2.2.1 the father shall collect the child from the mother’s residence at Town B at the commencement of the child’s time with the father, and the father shall return the child to the mother’s residence at Town B at the conclusion of the child’s time with the father.
2.2.3 As otherwise agreed between the parties in writing and signed by each of them
On 20 March 2019, the father filed an Application in a Case seeking review of those orders. This first came before me on 30 May 2019.
Orders were made by me on 16 August 2019, modifying the orders of Senior Registrar Campbell on 27 February 2019. These embodied the parenting arrangements operating at the time of trial. They provide that the child live with the mother and spend time with the father “each alternate weekend from 9:00 am Saturday until 4:00 pm Sunday, with changeover of the child to occur at Town A Airport, commencing on 24 August 2019”. The Orders further provided that “the father be at liberty to travel with the child by air either to the Gold Coast or Sydney and that all the associated costs of the travel be paid for by the father”.
These orders also required the mother to provide evidence of enrolment in, and completion of, a parenting after separation program.
Parenting After Separation program
As at the first day of the final hearing, the mother had not provided written confirmation of enrolment and a certificate of completion in the program “Parenting After Separation” or such other similar program as recommended by E Group or F Group, pursuant to Orders made on 16 August 2019. Orders were made on 27 November 2019 that she provide to the father’s solicitor details of the family therapy course which she had indicated that she had enrolled in.
During the trial on 27 November 2019, the mother stated that she had made an appointment for a parenting after separation course. Under questioning on 28 November 2019 she conceded the appointment was originally in Melbourne. This according to the mother, was not viable because of the travel involved and all her expenses. So she stated she had made an “appointment” to undertake a course online. She had only done so on 27 November 2019, despite the orders of 16 August 2019.
At the conclusion of the final hearing the mother had not produced evidence of her enrolment.
The father gave evidence that he has undertaken a parenting after separation course.
Issues in dispute
By the completion of the trial the central question was with whom the child should live, and where he should live. Upon the answer to that question depended the answer as to what time each of the parents should spend with the child, in the event he did not live with that parent, and the practicalities of bringing this about.
Proposals
As set out in Exhibit “ICL1”, and as amended by Further Written Submissions filed 4 May 2020, the ICL’s proposal is as follows:
1. That all previous Orders for the parenting of X born … 2014 (‘the child [sic]) be discharged.
2. That the parents have equal shared parental responsibility for the child.
3. That the child live with the mother.
4. That the child spend time with the father as follows:-
a. That the father’s time with the child pursuant to the Orders below shall including the Father’s Day weekend and the weekend on which the father would otherwise have spent time with the child pursuant to these Orders where changeover is to occur at Town A Airport in September shall be suspended;
From the commencement of these Orders until
31 December 2020until the child commences school in 2021:-b. From Saturday morning until Sunday evening on the second and fourth weekend of each month for two consecutive months to commence on the second weekend of the first month after the making of these Orders with the time to occur in the immediate area of Town B; and then
c. From Saturday morning until Monday afternoon on the second weekend of each month for two consecutive months; and thereafter
d. From Friday morning to Tuesday afternoon on the second weekend of each month for two consecutive months; and thereafter
e. From Friday morning to Wednesday afternoon on the second weekend of each month; and thereafter;
Upon the child commencing school in 2021
f. During school terms, on the second weekend of each month from Friday afternoon until Sunday afternoon;
g. During school terms, on the fourth weekend of each month from after school Friday until before school Monday with the time to occur in the immediate area of Town B;
h. From Friday afternoon to Monday afternoon on the Queen’s Birthday and Labour Day long weekend in each year where that weekend does not fall in school holiday period with the father’s time pursuant to Order 4 f suspended during those months;
i. In the term school holiday periods, from the afternoon on the last day that the child is required to attend school until the afternoon of the second Wednesday of the school holiday period;
j. For half of all Christmas school holiday periods commencing from the afternoon of the last day the child is required to attend school for term four in 2021 and each alternate year thereafter and commencing from the afternoon of the middle day of the Christmas school holiday period until the afternoon of the day prior to the child being required to attend school in 2022 and each alternate year thereafter.
5. That changeovers shall occur as follows:-
a. That for the purpose of Orders herein where it is specified that the father’s time with the child is to occur in the immediate area of Town B then changeover shall occur by way of the father collecting and returning the child from and to the mother’s residence;
b. That for the purpose of Order 4 h herein, changeover shall occur by way of the mother causing the child to be delivered to the father and collected from the father at Sydney Airport at the mother’s expense;
c. That for the purpose of all other Orders herein which haven’t been specifically dealt with above, the changeover shall occur at Town A Airport.
6. That should the Easter period fall outside of the school holiday period then the father shall spend time with X from Easter Sunday afternoon until Easter Monday afternoon in the immediate area of Town B.
7. That the father have Skype time with the child as follows:-
a. Each Monday, Wednesday and Friday from 7pm to 7.30pm;
b. On the child’s birthday from 7pm to 7.30pm;
c. On Christmas Day in the years that the child is in the Mother’s care pursuant to these Orders from 9am to 9.30am.
8. That the mother have Skype time with the child when the child is in the father’s care pursuant to these Orders as follows:-
a. Each Wednesday 7pm to 7.30pm;
b. On the child’s birthday from 7pm to 7.30pm;
c. On Christmas Day in the years that the child is in the Father’s care pursuant to these Orders from 9am to 9.30am on Christmas Day.
9. The [sic] should the child require urgent medical care or hospitalization, the parent with care of the child at the time pursuant to these Orders shall notify the other parent by text message and both parents are at liberty to attend upon the medical facility or hospital where the child is receiving urgent medical care.
10. That the parents communicate all issues in relation to the welfare of the child by text message and all non-urgent issues by way of email.
11. That within three days of the date of these Orders, the parents shall provide to each other their current email address, mobile phone number and residential address and shall thereafter provide to each other any changes thereto within 24 hours of any such change occurring.
12. That the parents hereby each authorise the other parent to access all information usually available to parents from any of the child’s schools or preschools or day care facilities and both parents are at liberty to attend any events at the child’s school, preschool or day care facility that are usually open to parents.
13. That both parents are at liberty to attend any extracurricular activities that the child may be involved in.
14. That within three months from the date of these Orders (or otherwise the first available opening), the mother shall complete the program known as Parenting After Separation Program pursuant to her current enrolment [sic] and upon completion the mother is to provide to the father a copy of her completion certificate by email.
15. That the parents are restrained from making derogatory comments about the other parent or a member of the other parent’s household or family in the presence of or hearing or [sic] the child.
As set out in “Annexure A” to the father’s Case Outline filed 25 November 2019, and Exhibit “B” being the Addendum to the father’s orders sought pursuant to “Annexure A”, and as amended by the father’s Further Written Submissions filed 7 April 2020, the father’s proposal is as follows:
“Annexure A”
1. That all previous Orders be discharged.
2. That MR PAPP ("the father") and MS MYERS ("the mother") (collectively known as "the parties") have equal shared parental responsibility for all major long-term decisions concerning the care, welfare and development of X born 2015 (referred to as "the child'), including but not limited to:
2.1 education, including choice of schooling;
2.2 religious and cultural upbringing;
2.3 health and medical issues; and
2.4 changes to the child’s living arrangements that make it significantly more difficult for the child to live with or spend time with the other parent.
3. Each party has responsibility for making decisions for the child that are not major or long-term decisions during the periods in which the child is living or spending time with that party.
TIME
4. That the child live with the father in Sydney.
5. That the child spend time with the mother from the date of these Orders until the child commences school as follows:
5.1 If the mother chooses to reside in Sydney then:
5.1.1 each alternate week from 8.00am on Thursday until 8.00am on Monday, with the mother collecting the child from the father’s residence at the commencement of her time and the mother delivering the child at the conclusion of her time to the child’s day care (or the father’s residence in the event that the child is not attending day care that day); and
5.1.2 each other alternate Thursday from 8.00am until 6.00pm on Friday with the mother collecting the child from the father’s residence at the commencement of her time and the mother delivering the child at the conclusion of her time to the child’s day care (or the father’s residence in the event that the child is not attending day care that day);
5.2 If the mother chooses not to reside in Sydney then each alternate weekend from 11.30am on Friday until 5.30pm on Sunday.
6. That the child spend time with the mother from the time he commences school onwards as follows:
6.1 If the mother chooses to reside in Sydney then in a two-week cycle as follows:
6.1.1 in week one from the conclusion of school on Monday (or 3.30pm should the child not attend school that day) with the father until the commencement of school on the following Monday (or 8.30am should the child not attend school that day) and each alternate week thereafter, with the father collecting the child at the commencement of his time from school and delivering the child at the conclusion of his time to school.
6.1.2 in week two from the conclusion of school on Monday (or 3.30pm should the child not attend school that day) with the mother until the commencement of school on the following Monday (or 8.30am should the child not attend school that day) and each alternate week thereafter, with the mother collecting the child at the commencement of her time from school and delivering the child at the conclusion of her time to school.
6.2 If the mother chooses not to reside in Sydney then each alternate weekend from 11.30am on Saturday until 5.30pm on Sunday.
7. That Orders 5.1 and 6.1 herein are conditional upon the mother providing to the father proof of residency in Sydney at least seven days prior to the commencement of time with the child.
8. For the purpose of Orders 5.2 and 6.2 herein:
8.1 changeover of the child is to occur at Town A airport (or the mother’s residence in the event that commercial airlines are not flying to Town A airport) and Sydney airport (or the father’s residence in the event that commercial airlines are not flying to Sydney airport);
8.2 at the conclusion of the father’s time with the child, the father shall deliver the child to Town A airport (or the mother’s residence in the event that commercial airlines are not flying to Town A airport) and subsequently at the conclusion of the mother’s time with the child, the mother shall deliver the child back to Sydney airport (or the father’s residence in the event that commercial airlines are not flying to Sydney airport);
8.3 the father shall do all acts and things necessary to purchase airfares for the child and the mother one week prior to the commencement of the child's time with the mother and provide a copy of the tax invoice to the mother within 24 hours of purchase;
8.4 upon the receipt of the tax invoice by the mother pursuant to the Order 8.3 herein, the mother will reimburse the father for 50% of the cost of the invoice within 24 hours;
8.5 upon the receipt of the payment by the mother, the father shall provide the mother with a copy of the airfare tickets pursuant to Order 8.3 herein.
SPECIAL OCCASIONS
9. Unless otherwise agreed between the parties in writing, the child shall spend time with the father as follows, in the event the child is already not spending time with the father on that day:
9.1 on Father’s Day from 9.00am until 6.00pm that day;
9.2 on the father’s birthday, from the conclusion of school (if the father’s birthday falls on a school day) until 6.00pm in Sydney, and if the father’s birthday does not fall on a school day from 9.00am until 6.000pm that day;
9.3 on the child’s birthday from 3.00pm on the day of his birthday until 6.00pm in Sydney, if the child’s birthday does not fall on a school day from 2.00pm on his birthday until 6.00pm that day.
10. Unless otherwise agreed between the parties in writing, the child shall spend time with the mother as follows, in the event the child is not already spending time with the mother on that day:
10.1 on Mother’s Day from 9.00am until 6.00pm that day;
10.2 on the mother’s birthday, from the conclusion of school (if the mother’s birthday falls on a school day) until 6.00pm in Sydney, and if the mother’s birthday does not fall on a school day from 9.00am until 6.00pm that day;
10.3 on the child’s birthday from 3.00pm on the day of his birthday until 6.00pm, if the child’s birthday does not fall on a school day from 2.00pm on his birthday until 6.00pm that day.
EASTER
11. Unless otherwise agreed between the parties in writing, in relation to the period from 10.00am Good Friday until 10.00am Easter Sunday with the provisions of the Order 4, 5, 6 and 13 herein suspended at those times:
11.1 the child shall live with the mother for the said period in each even numbered year commencing in 2020; and
11.2 the child shall live with the father for the said period in each odd numbered year commencing in 2021.
12. Unless otherwise agreed between the parties in writing, in relation to the period from 10.00am Easter Sunday until 10.00am Easter Tuesday (or at the commencement of school on the Tuesday after Easter)
:, with the provisions of Order 4, 5, 6 and 13 herein suspended at those times:12.1 the child shall live with the father for the said period in each even numbered year commencing in 2020; and
12.2 the child shall live with the mother for the said period in each odd numbered year commencing in 2021.
DURING THE APRIL, JUNE/JULY AND SEPTEMBER SCHOOL HOLIDAYS PERIODS
13. Unless otherwise agreed between the parties in writing, the child shall spend time with both the mother and the father during April, June/July and September school holiday periods as follows, with the provision of Orders 4, 5 and 6 herein suspended at those times:
13.1 If the mother chooses to reside in Sydney:
13.1.1 with the father for the first half of all school holiday periods in each year ending in an even number commencing in 2020, such period to commence from the conclusion of school on the last day of the school term (or 3.30pm should the child not attend school that day) and conclude at 6.00pm on the middle day of the school holiday period, with the father collecting the child from school at the commencement of his time;
13.1.2 with the mother for the second half of all school holiday periods in each year ending in an even number commencing in 2020, such period to commence at 6.00pm on the middle day of the school holiday period and to conclude at the commencement of school on the first day of the new school term (or 8.30am should the child not attend school that day), with the mother collecting the child from the father’s care at the commencement of her time and delivering the child at the conclusion of her time to school (or into the father’s care pursuant to Order 4 herein should the child not attend school that day);
13.1.3with the mother for the first half of all school holiday periods in each year ending in an odd number commencing in 2021, such period to commence from the conclusion of school on the last day of the school term (or 3.30pm should the child not attend school that day) and conclude at 6.00pm on the middle day of the school holiday period, with the mother collecting the child from school at the commencement of her time; and
13.1.4with the father for the second half of all school holiday periods in each year ending in an odd number commencing in 2021, such period to commence at 6.00pm on the middle day of the school holiday period, and to conclude at the commencement of school on the first day of the new school term (or 8.30am should the child not attend school that day), with the father collecting the child from the mother’s care at the commencement of his time and delivering the child at the conclusion of his time at school (or with the father keeping the child in his care pursuant to Order 4 herein should the child not attend school that day).
13.2If the mother chooses not to reside in Sydney:
13.2.1 with the mother for the entire school holiday period, with the mother collecting the child at the commencement of her time at conclusion of school on the last day of the school term (or 3.30pm should the child not attend school that day) and the mother delivering the child to the father’s residence at the conclusion of her time at 12noon two days prior to the child’s first day of the new school term.
DECEMBER/JANUARY SCHOOL HOLIDAY
14. In relation to the December/January 2019 holiday period, unless otherwise agreed between the parties in writing and with the provision of Orders 5 and 6 herein being suspended at those times:14.1 the child shall live with the mother from 9.00am on 1 December 2019 for a period of three weeks concluding at 12noon three weeks later, with the mother collecting X from Town A airport or an otherwise agreed location at the commencement of her time (if X is not otherwise already in her case) and delivering X to Town A airport at the conclusion of her time;14.2 the child shall live with the father from 12noon on 23 December 2019 until 2.00pm on 25 December 2019, with the father collecting X from Town A airport at the commencement of his time and delivering X to Town A airport at the conclusion of his time;14.3 the child shall live with the mother from 2.00pm on 25 December 2019 until 12noon on 27 December 2019, with the mother collecting X from Town A airport at the commencement of her time and delivering X to Town A airport at the conclusion of her time;14.4 the child shall live with the father from 12noon on 27 December 2019 until 2.00pm on 29 December 2019, with the father collecting X from Town A airport at the commencement of his time and delivering X to Town A airport at the conclusion of his time;14.5 the child live with the mother from 2.00pm on 29 December 2019 for a period of three weeks concluding at 12noon three weeks later, with the mother collecting X from Town A airport or an otherwise agreed location at the commencement of her time (if X is not otherwise already in her care) and delivering X to the father’s residence at the conclusion of her time.15. In relation to the period from 5.00pm Christmas Eve to 7.00pm Boxing Day each year thereafter, and unless otherwise agreed between the parties in writing and with the provision of Orders 4, 5, 6 and 16 herein suspended at those times:
15.1 if the mother lives in Sydney:
15.1.1 the child shall live with the mother for the first half of such period (5.00pm Christmas Eve to 7.00pm Christmas Day) in even numbered years, commencing in 2020 with the father delivering the child to the mother’s residence if she lives in Sydney or at an otherwise agreed location, in writing, at the commencement of her time;
15.1.2 the child shall live with the father for the second half of such period (7.00pm Christmas Day to 7.00pm Boxing Day) in even numbered years, commencing in 2020 with the mother delivering X to the father’s residence at the commencement of his time;
15.1.3 the child shall live with the father for the first half of such period (5.00pm Christmas Eve to 7.00pm Christmas Day) in odd numbered years, commencing in 2021 with the mother delivering X to the father’s residence at the commencement of his time; and
15.1.4 the child shall live with the mother for the second half of such period (7.00pm Christmas Day to 7.00pm Boxing Day) in odd numbered years, commencing in 2021 with the father delivering X to the mother’s residence if she lives in Sydney or at an otherwise agreed location at the commencement of her time.
15.2 If the mother does not live in Sydney:
15.2.1 the child shall live with the mother for the entire period (5.00pm Christmas Eve to 7.00pm Christmas Day) in even numbered years, commencing in 2020 with the mother collecting the child from the father’s care (if the child is not already in the mother’s care) at the commence of her time; and
15.2.2 the child shall live with the father for the entire period (5.00pm Christmas Eve to 7.00pm Christmas Day) in odd numbered years, commencing in 2021 with the mother delivering the child to the father’s residence (if the child is not already in the
mother’sfather’s care) at the commencement ofthishis time.16. Unless otherwise agreed between the parties in writing, the child shall spend time with both the mother and the father during the December/January school holiday period as follows, with the provision of Orders 4, 5, 6 and 15 herein being suspended at those times:
16.1If the mother lives in Sydney:
16.1.1 with the father for the first half of all school holiday period in each year ending in an even number commencing in 2020, such period to commence from the conclusion of school on the last day of the school term (or 3:30pm should the child does [sic] not attend school that day) and conclude at 6.00pm on the middle day of the school holiday period with the father collecting the child from school at the commencement of his time;
16.1.2 with the mother for the second half of all school holiday period in each year ending in an even number commencing in 2020, such period to commence at 6.00pm on the middle day of the school holiday period, and to conclude at the commencement of school on the first day of the new school term
,(or 8.30am if the child does not attend school that day), with the mother collecting the child from the father’s care and delivering the child to school on the first day of the school term (or into the father’s care pursuant to Order 4 herein should the child not attend school that day);16.1.3with the mother for the first half of all school holiday periods in each year ending in an odd number commencing in 2021, such period to commence from the conclusion of school on the last day of the school term (or 3.30pm should the child not attend school that day) and conclude at 6.00pm on the middle day of the school holiday period, with the mother collecting the child from school at the commencement of her time unless the child is already in the father’s care; and
16.1.4with the father for the second half of all school holiday periods in each year ending in an odd number commencing in 2021, such period to commence at 6.00pm on the middle of the school holiday period, and to conclude at the commencement of school on the first day of the new school term (or 8.30am if the child does not attend school that day), with the father collecting the child from the mother’s care and delivering the child to school on the first day of the school term (or with the father keeping the child in his care pursuant to Order 4 herein should the child not attend school that day).
16.2 If the mother does not live in Sydney:
16.2.1 with the mother for the first four weeks of the school holiday period in each year, such period to commence from the conclusion of school on the last day of the school term (or 3:30pm should the child not attend school) and conclude at 9.00am on the day that is two weeks prior to the child’s first day of the new school term
s(or the intended school term), with the mother collecting the child from school at the commencement of her time and delivering the child to the father’s residence at the conclusion of her time;16.2.2 with the father for the last two weeks of the school holiday period in each year, such a period to commence at 9.00am on the day that is two weeks prior to the child’s first day of the new school term (or the intended school term), with the father collecting the child from the mother’s care at the commencement of his time and delivering the child at the commencement of school on the first day of the new school term at the conclusion of his time (or with the father keeping the child in his care pursuant to Order 4 herein should the child not attend school that day).
TELEPHONE COMMUNICATION
17. Unless otherwise agreed between the parties, during the period X is in the care of one parent, the other parent is permitted to speak with X of an afternoon/evening on one occasion between 4.00pm and 8.00pm using Facetime, Skype or voice calls through the carer parents’ mobile phone.
18. In the event the child is unable to spend time with either parent pursuant to the Orders herein as a result of any government lockdown, the parent with who the child was meant to spend time with shall be at liberty to speak with the child on two occasions per day between 9.00am and 11.00am and 4.00pm and 8.00pm using Facetime, Skype or voice calls through the carer parent’s mobile phone and the other parent shall do all acts and things necessary to ensure that the child is available to participate in that communication.
TRAVEL
19. Neither party shall remove the child from the Commonwealth of Australia without having first obtained the consent of the other parent in writing.
20. That the mother and father shall be at liberty to travel domestically or internationally with the child for the purpose of a holiday during their time with the child in accordance with these Orders, or at such other times that the parties may agree in writing, provided that the following occurs:
20.1. the party proposing to travel with the child shall give the other party at least eight weeks’ notice in writing of their intention to travel with the child, which shall include the proposed destination and dates;
20.2. the party proposing to travel with the child shall give the other party with copies of all confirmed airline bookings, detailed itinerary including accommodation details and dates, and contact numbers for the child for the duration of the holiday.
20.3. the child’s passport is to be retained by the party who last travelled with the child and the party who hold [sic] the child’ [sic] passport is to provide those passports to the travelling part [sic] if required two weeks prior to any international travel with the child after compliance with Orders 26.1 and 26.2 herein.
21. Both parties will do all things necessary to apply for and thereafter renew the child’s Australian Passport from time to time and shall not unreasonably withhold consent for such renewal. Each party shall pay one half of the cost associated with the issuing and renewal of the child’s Australian Passport.
OTHER ORDERS
22.
Except as otherwise agreed between the parties in writing, for the purpose of these Orders, School Holidays shall be deemed to have commenced at 9.00am on the day following the last day of school and shall be deemed to have concluded at 6.00pm the day prior to the commencement of school whether or not that day is a pupil free day.23. For the purposes of Orders 6.1, 9, 10, 11, 12, 13.1.1, 13.1.2, 13.2.1, 16.1 and 16.2 herein, for changeovers that do not occur at the child’s school, the parent with whom the child is to spend time with shall collect the child from the other parent’s residence at the commencement of their time (should the child not already be in their care) and deliver the child to the other parent’s residence at the conclusion of their time.
24. That each party, to the best of their ability, is to do all things necessary to ensure that while in their respective care, the child shall attend any extracurricular, sporting or cultural activities in which he may be participating from time to time including any training or tuition relating to that activity, and both parents are at liberty to attend such activity as a spectator if the activity allows such attendance.
25. Except with the written consent of the other parent both the mother and father are restrained from enrolling the child into any extracurricular activity which is to take place at a time when X is to spend with the other parent pursuant to these Orders.
INFORMATION
26. Both parties shall keep the other informed as to their respective residential addresses and contact numbers at all times. If either party plan to change their residential address, that party shall give the other party at least 21 days’ written notice of such intention and details of the proposed new address and accommodation.
27. Each of the mother and the father shall provide each other with information as soon as practicable upon the happening of the following:
27.1. events related to the general health of X including but not limited to medical appointments, tests results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointments); and
27.2. matters related to X’s education including but not limited to parent/teacher interviews, disciplinary matters, achievements, awards, concerts and special events, sports days, newsletters and notices.
28. Each parent shall inform the other immediately or if not possible, three (3) hours upon the happening of any medical emergency involving X including but not limited to serious illness, accident or hospitalisation.
29. The parties will in a timely manner:
29.1 provide a copy of these Orders to any school which the child may from time to time attend and authorise same to provide particulars to the other party of the child’s welfare, progress at school, education, special needs of the child, details of upcoming functions or activities and to provide copies of school reports and like information.
29.2 provide to the other parent copies of all notices received from the school and details of any social, school or religious functions which the child is to attend.
30. Each party is hereby restrained from:
30.1. denigrating the other parent within the presence or hearing of the child or causing any other person with whom they reside to denigrate the other parent within the presence or hearing of the child.
30.2. discussing with the child or with any other person in the child’s presence details of these proceedings.
30.3. discussing the implementation and mechanisms of these Orders with the child. All organisation and planning in relation to the child must be made between the parties.
“Addendum to Father’s orders as sought pursuant to Annexure A”
1. If the mother chooses to live in Sydney the father undertakes to pay the following sums:
1.1. Child Support as assessed by the Child Support Agency;
1.2. Direct to the relevant agent or landlord, rental assistance of such two bedroom apartment as the mother may select of a rental of up to $750 per week, but within a radius of 15 kilometres from School R, Suburb C;
1.3. Bond for a rental premise with any refund to be paid to the father;
1.4. Private Health Insurance for X;
1.5. Day care costs for up to three days of attendance and/or private school fees at such school as agreed between the parties in writing and all school associated expenses; and
1.6 All extra curricula [sic] expenses not associated with the private school X attends as agreed between the parties in writing.
2. The payments referred to in Orders 1.2 to 1.6 are to be paid by the father directly to the applicable third party.
3. The payments referred to in Orders 1.2 and 1.3 will terminate within two years from the date of these Orders or upon the mother obtaining full time employment or entering into a de-facto relationship or marriage, whichever is first.
As set out in Exhibit “3”, the mother’s proposal is as follows:
Monthly time between Town B and Sydney.
That X reside with me in Town B.
That the father spend time with X on a monthly basis.
· That the father travel to Town B to spend time with X with changeover at Street KK, at our home.
· That X and I travel to Sydney 2-4 times per year where X stays at the father’s home. Between now and until X is 5 years of age he spend between 10am – 5pm on Saturdays and 10am – 2pm on Sundays or 5pm if the father prefers.
When X is 5 years of age, the time spent in Town B and Sydney increases to overnight time between 10am Sat – 2pm Sun
When X is 6 years of age, the time spent between Town B and Sydney increases to two consecutive nights between 5pm Friday to 4pm Sunday.
That this time continues throughout X’s [sic] childhood.
Holiday time – X commences schooling at School J in 2021.
In 2022 – the father spend 3 nights with X.
In 2023 – Increase holiday time
Christmas – That X spend the Christmas period at home in Town B
OR – X spends Christmas at home in Town B until he is 8 years of age.
As of 8 years of age the father travel to Town B to spend between 12pm – 5 pm with X
OR As of 7 years of age the father travels to Town B and spends between [sic]
Birthdays – That X spend his birthday at home in Town B as of 8 years – share birthdays – both spend time
Changeover – In Town B mother’s home
In Sydney Father’s home
The mother’s proposal in her Written Submissions emailed 30 April 2020 in summary, and paraphrased, additionally sought:
a)That the child live with her in Town B;
b)That she have sole parental responsibility;
c)That while the current restrictions in NSW with respect to the COVID-19 pandemic remain in place, the father Facetime the child 2:00 pm on Tuesdays, Thursdays and Saturdays;
d)That if the Court makes orders for the father to have face-to-face contact with the child during the pandemic, then the father spend time with the child in Town B once a month during the day on two consecutive days, and as current travel arrangements allow from 10:00 am to 4:00 pm on a Wednesday and Thursday;
e)That once the restrictions have eased, and the original airline schedules are back in force, the father have day time with the child, in a three month cycle arrangement being one weekend a month in Town B for two consecutive months, with the third month being one weekend in Sydney;
f)That when the mother travels to Sydney with the child to effect the father’s time with the child in Sydney that the father assist with their airfare and her accommodation costs;
g)That alternatively, if the father assists with expenses related to the child and mother’s airfare and the mother’s accommodation with respect to the father spending time in Sydney, that instead, the father spend time with the child during the day, one weekend a month alternating in Town B and Sydney;
h)That any graduated increases in the father’s time with the child be determined on a year-to-year basis;
i)That if the Court makes orders for the father to spend time with the child in the Gold Coast that changeover take place at Town GG Airport;
j)That the father attend and become involved with the child’s extra-curricular activities;
k)That the child attend School J’s transitional program commencing 4 September 2020;
l)That the child attend School J commencing in 2021;
m)That the father undergo psychiatric assessment during the COVID-19 pandemic; and
n)That should the father travel with the child, that upon the child’s return to her care and at all other times, she have the child’s passport in her possession.
I bear in mind the court is bound to consider carefully the proposals of the parties but, in making final parenting orders, it is not bound by the parties’ proposals; the Court has an obligation to formulate (subject to procedural fairness considerations) orders considered to best meet the best interests of the subject children: AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238.
Evidence
The father relied on the following documents:
a)His Further Written Submissions in reply filed 7 May 2020;
b)His Further Written Submissions filed 7 April 2020;
c)His Further Amended Initiating Application filed 28 October 2019;
d)His Affidavit filed 28 October 2019 (“father’s Trial Affidavit”);
e)His Case Outline filed 25 November 2019;
f)His Proposed Minute of Order (“Annexure A” to His Case Outline) and Addendum (Exhibit “B”).
The mother did not comply with orders to prepare her Consolidated Trial Affidavit prior to the final hearing despite having been afforded three extensions. I discuss this in more detail below at [79] to [82].
Her evidence in draft form and her Proposed Minute of Order respectively became Exhibit “1” and Exhibit “3”, supplemented by Written Submissions emailed 30 April 2020.
The father and the mother were both cross-examined. The father’s cross-examination was conducted by the mother.
The Independent Children’s Lawyer (“ICL”) relied on the following documents:
a)Further Written Submissions filed 4 May 2020;
b)Case Outline filed 25 November 2019; and
c)Proposed Minute of Order (Exhibit “ICL1”).
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
Court 1
Family Report of Ms D dated 13 February 2019
Court
A
Letter from the Applicant Father’s solicitors dated 26 November 2019, listing the minor typographical corrections to the Applicant Father’s Affidavit filed 28 October 2019
Applicant father
B
Addendum to the Orders sought by the Applicant Father in Annexure “A” of his Case Outline
Applicant father
C
Tender bundle to the Affidavit of Mr Papp filed 28 October 2019
Applicant father
E
Two pages of screenshots of the mother’s Facebook post titled “Birthday Weekend @ Restaurant EE” dated 8 September 2019, 9:14pm containing photographs of the mother with Mr L
Applicant father
F
Larger text version of page 52 of the Tender bundle to the Affidavit of Mr Papp filed 28 October 2019
Applicant father
G
Notice to Admit Facts of the Applicant Father dated 13 November 2019
Applicant father
1
Affidavit of the Respondent Mother in draft form
Respondent mother
2
Tender bundle to the Respondent Mother’s Affidavit in draft form
Respondent mother
3
Handwritten Final Orders sought by the Respondent Mother
Respondent mother
ICL 1
Orders sought by the Independent Children’s Lawyer
Independent Children’s Lawyer
Expert evidence
A Family Report dated 13 February 2019 was prepared in this matter by Ms D and as noted above, was marked Exhibit “Court 1”. The Family Report was based on interviews and material as set out at pages 2-3 of Ms D’s report.
It is important to note two matters regarding the report. First, the report was prepared at a time when residence was not in issue and the father had not proposed that the child should live with him. Secondly, Ms D was also under the impression the father’s family owned a property in Town LL, which was not the case. The evidence was undisputed that his parents live primarily on the Gold Coast but have purchased a property in Sydney.
I will refer to the content of the report as necessary during the course of these reasons.
Ms D was cross-examined.
Ms D’s recommendations
In her report Ms D recommended the following:
74. It is recommended that Ms Myers be permitted to remain with X in Town B.
75. It is recommended that X spend time with his father at as great a frequency as is practicable and that such time include overnight time, in the first instance on a non-consecutive basis, at those times when X is brought to Sydney to spend time with his father or when the father spend time with him in his family’s Town LL home, particularly if other paternal family members are also there so that their relationships with the child might also be maintained.
Ms D’s oral evidence
In her oral evidence, Ms D continued to support the child living with the mother at her choice of residence but equally was clear that the child should be spending significant and substantial time with the father increasing on a graduating basis up until the end of 2020.
Ms D further proposed that a third party such as the maternal grandparents could assist with changeover, in place of the mother, providing that they are available and willing.
Ms D opined that since the child was developing a significant relationship with the father up to September 2019, if he does not continue to spend regular time with the father, a later adverse reaction is likely, with unbalanced identity formation and sense of abandonment. There is also a real risk that even if the mother does not present a negative view of the father, that the child may form one.
Ms D agreed it would be much easier from the child’s view if he was to reside in Sydney. However the impact of coercive relocation upon the mother may manifest as depression making her emotionally less available to the child.
If an order is made for the child to continue to reside with the mother in Town B, to ensure that the relationship of the father with the child continues to develop, Ms D supported the arrangement of the father collecting the child from the mother’s residence and spending time with the child on a graduating basis starting off with a couple of nights a month in Sydney or the Gold Coast, progressing to four nights or even longer per month towards the end of 2020 with the father perhaps spending time with the child between times. Ms D proposes that the child should spend time with the father on a monthly basis starting in 2020 with one night to move fairly quickly into two and then to progress over time so that by the end of 2020 the child is spending five consecutive nights with the father. In this way at the time of commencing school the child will be able to spend a week of the holiday time with the father.
The Child
The child is very young. He does not suffer any health issues. Both parents told Ms D that the child is healthy, aside from an allergic reaction to insect bites, which is improving. Both parents also viewed the child as confident, very intelligent with advanced verbal skills, and generally happy. The mother described the child as “strong” and as knowing what he wants, and not being an overly sensitive or fragile child.
Since 2018 the child has attended K Day Care on Tuesdays and Thursdays since 2018 and is also enrolled there for 2020. The child is due to commence his schooling in 2021. It is the mother’s intention that the child attend School J in 2021.
The father’s evidence
The father presented as an earnest witness with a sincere approach to giving evidence. Apart from an unrealistic perception of his responsibilities if the child lived with him, which I discuss later in these reasons, I found his evidence generally convincing.
The mother’s evidence
It is unfortunately necessary to make a closer assessment of the mother’s evidence and discuss factual matters bearing upon it in some detail because, as will become apparent, they reflect upon her reliability as a witness, and are relevant to several other matters such as her continuing pursuit of a social life in Sydney and her commitment to promoting the child’s relationship with his father.
The mother represented herself. She stated a number of times that she was nervous and did not really understand the process. I accept both statements up to a point. Having said that, the mother presented as an intelligent and articulate person, who could communicate her arguments with some coherence. As described below, the mother did appear to have a reasonable understanding of the process.
The mother had, during the course of the proceedings, made several applications to adjourn the final hearing dates and extend time to file her evidence. I gave ex tempore reasons for judgment dealing with some relevant parts of the history of the proceedings in Papp & Myers (No. 2) [2019] FamCA 825. Those reasons should be read with this judgment.
To recap for ease of reference, on 30 May 2019 the proceedings were provisionally listed for final hearing on 27 and 28 November 2019. Directions were made for preparation for final hearing, including that each party file and serve a Trial Affidavit. The final hearing dates were confirmed on 14 August 2019 and again on 31 October 2019. The mother applied to adjourn the trial on 14 August 2019, on the basis she needed further time to prepare an Affidavit. On that occasion the mother was represented by a solicitor through Legal Aid who initially appeared for her, but whose retainer was terminated by the mother during the morning, on the basis the mother believed she herself could do a “better” job. At [3] in Papp & Myers (supra) I noted:
On 14 August 2019, the mother, a number of times, stated that she had Affidavit evidence which was almost complete, and that she just needed a lawyer to put the evidence together. At one point, for example, she told me that she had her draft Affidavit ready on her phone and was therefore in a position to finalise it very quickly.
After 14 August 2019, G Lawyers went on the record for the mother, and advised the solicitors for the father on 25 October 2019 that the mother’s evidence would be served on 28 October 2019. However, between 25 and 31 October 2019, the mother’s then existing grant of Legal Aid was terminated and G Lawyers ceased to represent her. No Affidavit was filed or served. On 31 October 2019, the mother made a further adjournment application, again on the basis that she needed time to prepare a Trial Affidavit. This application was also refused, although an extension of time to file her Trial Affidavit was granted. On 18 November 2019, the matter was listed for a compliance check. On that occasion, the mother told me that there was a draft Trial Affidavit and that she was seeking advice from a lawyer in Town MM. On that basis I granted a further extension of time to file a Trial Affidavit. On 21 November 2019 orders were made in chambers further extending the time for the mother to file her Trial Affidavit and for the parties to file their Case Outlines.
When the matter was called on for trial on 27 November 2019, the mother had filed no Trial Affidavit. Representing herself, she told me again that she had the Trial Affidavit on her phone. She conceded that she had three different lawyers representing her for short periods, pursuant to Legal Aid funding, since 14 August 2019. I gave the mother the opportunity to print out her Trial Affidavit and have it sworn. This did not happen. Rather the mother printed out a lengthy document which was patently a disorganised, unrefined and prolix draft, very far from ready to be sworn as an Affidavit, containing much irrelevant commentary. Ultimately, by consent of all parties, this became Exhibit “1”, and formed part of the evidence in her case. On the second day of final hearing the mother conceded that, regarding Exhibit 1, “there’s a whole lot of – lot of inaccuracies, they’re only minor, they’re not huge, but I have noticed that there is a lot of accurate – inaccuracies in that document.”
The purpose of reciting in detail these parts of the procedural history is twofold. First, I am satisfied the mother, as a self-represented litigant, was given ample, indeed considerable, procedural generosity to prepare her case and, in particular, to file and rely upon Affidavit evidence. She had no less than three different lawyers to assist in preparing her evidence, but apparently retained none of them long enough for it to be completed. Secondly, the mother’s conduct between 14 August 2019 and the final hearing on 27 November 2019 raised the inference that she was prepared to make representations to the Court, which involved a promise of compliance and readiness for hearing which was consistently disappointed. The mother’s conduct in the months leading up to the final hearing not only showed a reluctance, if not recalcitrance, in engaging with the processes and orders of the Court, but also some indifference to the accuracy of her statements.
There were also other aspects of the mother’s evidence which gave cause for concern about her reliability as a witness, particularly events between 16 August 2019 and 31 October 2019, which were close to the final hearing. It is again necessary to record some of these here in detail. I also refer to other aspects of the mother’s evidence as necessary later in these reasons.
The first occasion on which there was to be contact with the father following the 16 August 2019 orders was the weekend commencing Saturday, 24 August 2019, with changeover at Town A Airport. The night before, the mother advised the father she was unable to travel both on the Saturday and Sunday “due to financial and transport issues”. She did not elaborate on these issues. Consequently, the father did not spend time with the child on 24 August 2019. I point out here that, according to the mother she does not have a car and requires the use of her parent’s car. The drive to Town A Airport is between 90 minutes and two hours each way, depending on traffic, from her residence in Town B. However there was evidence, some of which is discussed below, that the mother regularly received transport assistance from her parents, including assistance driving her to the airport.
The next occasion when the father was to spend time with the child was the weekend commencing … September 2019. On 3 September 2019, the mother through her then solicitors told the father that she had made plans prior to 16 August 2019 for the child to attend a celebration with her and her maternal family in Town B for her birthday. She requested the father forego his time with the child and offered make-up time on Saturday, 14 September 2019.
The father responded by stating he would only consent to foregoing his time if he could have make-up time on the weekend of 9 and 10 November 2019 (which did not in fact eventuate) and to move the scheduled weekend of 2 and 3 November 2019 to 23 and 24 November 2019 (which also did not eventuate). The mother’s then solicitors replied on her behalf, signifying agreement and in cross-examination the mother conceded she knew they had done so.
In further cross-examination about the weekend of … September 2019, the mother initially confirmed that she has spent her birthday weekend with the child and her maternal family in Town B. But under questioning by the father’s senior counsel, she conceded she had in fact spent her birthday with a person called Mr L at Restaurant EE, Sydney on … September 2019. The mother tried to reconcile the obvious conflict in her evidence by claiming she had celebrated her birthday in Sydney with the child and her mother, which was close to what she told the father. She was unable to confirm whether they had in fact travelled to Sydney by car or plane, the day and time of travel, or the length of stay. The mother claimed it was only a one night or two night trip. She said it was a quick trip but could not confirm whether they travelled back to Town B on the Sunday. She said she had spent the whole day with the child and had a brief dinner with Mr L. She denied Mr L was her boyfriend, but rather someone she was meeting in person for the first time. However, Exhibit “E” was comprised of two pages of screenshots of the mother’s Facebook post titled “Birthday Weekend @ Restaurant EE” dated … September 2019, 9:14 pm containing photographs of the mother with Mr L in a pose of some intimacy.
The mother did not advise the father of the change of plans or offer the father time with the child while they were in Sydney. The mother made no reference to this occasion in Exhibit 1, her draft document.
Finally, the father’s evidence did not satisfy me that he has given sufficient attention to the impact on the child of a change of circumstances which would result in him living primarily with the father. The extreme distress and grief reaction adverted to by Ms D would require careful and constructive handling, with both parents giving it support. The evidence in this case shows such combined support is unlikely to be forthcoming. The mother would likely not be supportive. The father does not seem to have given adequate attention to this problem which would be very significant for the child. None of these remarks should be taken as a criticism of the father. I accept that the father would and should have spent more time with the child, were it not for the relocation by the mother and her history of non-compliance with Court orders. But my remarks are intended to highlight certain practical realities which appear upon an impartial assessment of the evidence, and a focus upon the best interests of the child.
In his further written submissions, the father states that despite the pandemic his circumstances have not changed, except that he works at present predominantly from home.
The best interests of the child are the paramount consideration. I am satisfied that, despite the mother’s conduct, and the likely enthusiasm for, as opposed to experience in, parenting by the father, he has not demonstrated that his parenting capacity is such that he can adequately meet the needs of the child, at least to an extent sufficient to conclude the child’s interests are on balance best served by the child living primarily with him, rather than the mother.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The evidence, while scant, satisfies me both paternal and maternal grandparents are likely to have some capacity to provide for the needs of the child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
Both parents have a warm and loving attitude to the child.
However, their attitude to the responsibilities of parenting has been compromised by their commitment to a power struggle over parenting outcomes. As already pointed out, Ms D commented that:
there were problems with both of [the parties], that neither of the [parties] was actually prioritising [the child], that both of [the parties] were caught in some massive control battle, where both of [the parties] intended to win. [Transcript of 27 November 2019, P-66.25-28]
Having considered the evidence of both parents closely, I am left with the clear impression that, while consistently referring to the best interests of the child, both parents were in truth more focussed on their own perceptions of their rights as a parent, rather than their responsibilities and duties. I should add here that this situation is likely to have been exacerbated, in the father’s case, by the conduct of the mother.
The father argued the mother especially demonstrated a poor attitude to the responsibilities of parenthood through an unwillingness to comply with Court orders for the child to spend time with the father. I agree. I refer to my discussion above at [82] to [99]. I am satisfied the mother’s attitude to her parental responsibilities is also compromised by a resistance to promoting the child’s relationship with his father, and by fairly consistent conduct having the effect of undermining the efficacy of Court orders designed to facilitate the development of a prospectively meaningful relationship between the father and his child.
I also agree with Ms D that the attitude of the father to the responsibilities of parenting was compromised by a desire to control parenting outcomes. Although the father gave evidence that he wished the child to live with him to preserve a meaningful relationship between father and son, he seemed to give inadequate consideration to the nature of the relationship he already has with the child, which has remained meaningful despite the mother’s move to Town B. He proposed orders that the child live with him, even if the mother chose to return to live in Sydney. There is also force in the mother’s submission that the father’s proposal was substantially directed to meeting his convenience. I accept this submission up to a point even though the father, for his part, justifiably pointed to the risk of the mother breaching Court orders and undermining his time with the child (see [82] to [99] and [190] below). I accept he father was more focussed on his relationship with the child, rather than the child’s relationship with him. There is a difference. However, it is also the case that the mother has likely exacerbated this tendency in the father by her own self-absorbed conduct which has, as already explained, interfered with the child’s time with his father.
Nonetheless, the best interests of the child are the paramount consideration and it is the child’s relationship with his father, not the other way around, which must be the focus. I am satisfied that the father’s proposal for the child to live primarily with him would likely involve the child in significant initial distress and confusion, which may result in longer term problems for the child, as suggested by Ms D. I am not satisfied his evidence explained the need for the child to live primarily with him, even if the mother chose to return to live in Sydney.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
While it is generally preferable to make orders that would be least likely to lead to the institution of further proceedings, the child is very young and this factor makes it more difficult to craft orders which could obviate further litigation. However, the consideration here is whether the orders proposed by the Court would be “least likely” to lead to the institution of further proceedings.
The father submitted that if orders are made for the child to continue living with the mother in Town B that she will not comply with the orders and will, contrary to her claims in these proceedings, not support the relationship between the father and the child, leading to further litigation.
There is some force in this argument. I have made findings above that the mother’s capacity to promote the child’s relationship with the father is compromised. There was evidence that the mother probably was unwilling to comply with the orders made on 16 August 2019. For example, the mother put to the father during cross-examination on 27 November 2019 “I advised you I would be breaching those orders from day 1”. This question contained an implied admission as to her intention. The mother conceded during her oral evidence that she had held the view that she “wouldn’t be able to logistically or financially be able to carry out those orders”.
However, despite the legitimate reservations about the mother, for the reasons given above at [171] to [180], I have concluded it is not in the child’s best interests for the child to live primarily with the father. As confirmed below at [201], I am persuaded it is in the best interests of the child to continue living with the mother. Therefore the Court is driven by the circumstances of this case to make orders which may risk further litigation, but in the balancing exercise between the rights of the child and the duties and responsibilities of the parents and the exercise of the broad discretion in making parenting orders, this is difficult to avoid.
It is clear that, in light of my conclusions, if the child lives primarily with the mother, orders are necessary facilitating the child’s time with the father. This will require travel. The evidence lead to the following conclusions about travel prior to the pandemic.
The burden of travel has fallen primarily on the father, because of the mother’s residence in Town B. The mother claimed that the brunt of the travel expenses in relation to the father spending time with the child should be borne by the father because she is “still on a pension and [has] significant debt” as do her parents. Further, she has indicated that she cannot afford accommodation and flights and a hire car. I do not accept this evidence.
The mother’s circumstances suggest she also has had flexibility to travel to Sydney. She has been unemployed since having the child and advised that she is not actively seeking employment as she wishes to study, but conceded she could find part-time employment. Prior to this she has worked in customer service at Company V and studied arts at College W and has worked for a brief time at Company Y and regional TV in Canberra. The mother stated that she has been accepted into a three year online course at University Z which she had put on hold because of her three melanoma surgeries and she proposes to resume the course, but was unable to provide further details.
Both parties made additional submissions about travel and the safety of the child in light of pandemic. As explained above at [14], I have taken judicial notice of the publically recorded travel restrictions imposed by the NSW government. These do not preclude travel by a child or parent for the purposes of continuing compliance with Court orders. Having considered the submissions carefully, I am not persuaded that the current travel restrictions imposed by the NSW government would prevent travel between Sydney and Town B, for compliance with the orders made by this Court. At present they may prevent travel to the Gold Coast, which was one destination put forward by the father. While it remains appropriate for the father to continue to spend time with the child in Town B, or the Gold Coast if restrictions lift, in my view the mother should shoulder a greater burden in travelling to Sydney. I am satisfied this is well within her capacity, in light of her frequent trips to Sydney in 2019 to pursue her social life.
I am alive to the possibility that a more equal division of responsibility for travel between the parents may create a greater scope for the mother to default in compliance. Her conduct in the months leading up to the final hearing does not engender confidence (see [82] to [99] above). However, I am satisfied the proposed orders go as far as possible to avoid this outcome. I am, on balance, satisfied that a more even-handed sharing, by the parents, of the travel between Town B (or possibly the Gold Coast) and Sydney is more likely to encourage co-operation and compliance in the longer term with the framework put in place by final orders. When the child commences school, the scope for travel will likely be affected by his school commitments and extra-curricular activities.
It is important to observe that the father proposed orders predicated upon the child living with him, with alternatives for time spent with the mother depending upon whether she chose to live in Town B or Sydney. The ICL proposed orders predicated upon the child living with the mother in Town B, as did the mother. No party proposed orders predicated upon the possibility that the child continue to live with the mother if she chose to return to Sydney to live. In light of my factual conclusions about the mother’s social life in Sydney in the months leading up to the trial, this could not be ruled out as a future possibility.
However, although he proposed no formal orders, the father did give oral evidence, under questioning by counsel for the ICL, that, if orders are made for the child to reside in Sydney in the primary care of the mother rather than him, it would be appropriate for him to spend time with the child on the same days and times, as he currently proposes the mother should, in accordance with his proposal. This would involve a two week cycle until the child commences school where in the first week the father would spend time with the child from Thursday morning until 8:00 am the following Monday and in the second week, Thursday overnight. Once the child starts school, as I understood the evidence of the father, he proposes the parties have equal time, if the child is ordered to live with the mother, and she chooses to live in Sydney.
Such orders would seem broadly appropriate. However, the mother made no proposal predicated upon her returning to live in Sydney. It is not feasible, on the present evidence, to craft orders which can now address this eventuality. The pandemic has increased to the difficulty. To do so, it would be necessary to have details of where the mother lived, the child’s schooling and other details of the then prevailing domestic circumstances of the parties. However, to take account of the possibility that the mother may return to live in Sydney, the parties should have liberty to apply to vary the orders in the event she does so. This should not be taken as an invitation to further litigation. By reason of the order for equal shared parental responsibility, the parties will under a statutory obligation to pursue consensus, and should not involve the Court until all such attempts have been exhausted.
(m) any other fact or circumstance that the court thinks is relevant;
It is important to record that in submissions filed after the COVID-19 pandemic commenced, the father stated that apart from working from home his circumstances have not changed. However, I infer that the father is not presently travelling as he used to. The current government restrictions would not permit this. I infer this may possibly allow him to devote more time to care of the child. However, no one can foretell how long the present restrictions arising from COVID-19 will remain or play out. As already noted, restrictions on travel within New South Wales will be lifted as at 1 June 2020.
Both parties made submissions about the relative merits of the healthcare in Sydney and Town B, and both made submissions to the effect the child’s safety would be greater in respective locations where they lived. In light of the constantly evolving impact of the COVID-19 pandemic, I find I am unable to accept either of these submissions. Without further evidence, it is not possible to know whether a large urban centre is preferable to a regional centre for the child’s health and safety. Both could offer benefits. For example, it could argued that the child may be more at risk of contracting the corona virus in a densely populated centre, but such a centre probably has better health care facilities. On the other hand it could be argued a regional centre poses lower risk of contracting the virus but would have possibly less health care resources. The necessary further evidence would require an adjournment and delay the delivery of judgment, which I do not consider to be in the best interests of the child.
Time with the Father
On balance I am satisfied the child should continue to live with the mother. Although the child has a secure attachment to the father, the mother has been and is the primary attachment figure and carer. The child is very young. If the child moved to the father as the primary residential parent, as already stated, I am concerned it would be disruptive and could be traumatic for him. I accept the expert evidence that the child would suffer a grief response which would be relived each time he separated from the mother to return to the father. I am also reinforced in this conclusion by my conclusion about the father’s unrealistic perception of the burden of parenting the child alone, if the child lived with him primarily.
Having said that, the expert evidence was clear that the child should spend time with the father with as great a frequency as is practicable and that such time include overnight time, in the first instance on a non-consecutive basis. The expert evidence supported this happening in Sydney as well as in the Town B region or the Gold Coast. As already noted, Ms D mentioned Town LL, under the mistaken belief that the father’s family had a home there. These recommendations were made before the pandemic.
I have given consideration to equal time with the father, as required by s 65DAA of the Act. However, my reasons stated in discussion of the s 60CC factors, particularly the geographic distance between Sydney and Town B, as well as the father’s work commitments, satisfy me that equal time is not reasonably practicable in the circumstances of this case. The impact of the pandemic, if anything, reinforces this view. I am however satisfied that substantial and significant time with each parent is in the best interests of the child and reasonably practicable, although it will require frequent travel.
I accept that the father has greater financial capacity to travel to spend time with the child, but also that his work commitments also have also made it more difficult for him to do so. The impact of the pandemic may have changed this, but I cannot determine if any change is temporary or permanent, and the father says his circumstances have not greatly changed. I take account of the mother’s claims about lack of financial resources. I am unable to form a clear view about the mother’s financial capacity, or incapacity, because of her unreliability as a witness. However, the evidence, discussed above at [84] to [99], leaves me in no doubt that the mother has been able to call upon financial support to travel to Sydney when it suits her.
The further submissions of the parties concentrated, for obvious reasons, on the impediments to travel presented by the pandemic and government restrictions. The father in his further submissions argued that in circumstances where travel between Sydney and Town B had been curtailed or extinguished, the only way in which the primary statutory consideration in s60CC(2)(a) can be “fulfilled” is by both parents living in the same location. I do not accept this submission. For one thing, the statutory considerations are, as the term connotes, matters to be “considered” (s 60CC(1)), “a mental process of analysis”, as pointed out at [107] above. Fulfilment is a different concept which does not seem apt for s 60CC, although the process of consideration is informed by the objects in s 60B(1) and the principles in s 60B(2): see [106] above.
On a more practical level, I understand the father to be arguing that travel restrictions directly interfere with the current and prospective relationship between him and the child. I can accept this may be true to some extent. The ICL’s further written submissions did not propose orders which were the subject of any great change from those proposed at the final hearing. In his written reply submissions, the father argued those proposed orders severely limit his ability to play a meaningful part in the child’s life on a day to day basis. This also has some truth to it. The mother argued that while travel restrictions were in place the child’s face to face time with the father should take place by electronic means, such as FaceTime.
But the obstacle of travel has been a constant problem in this case. Beyond that, the curtailment of travel is not total in the pandemic. Travel within NSW can take place by car and by plane in accordance with Court orders. Travel restrictions have been eased since their first imposition. Overall it seems to me that the restrictions arising from the pandemic have made issues of travel in this case more difficult. I cannot see that they have created a situation which would completely deny to the child time with the father or a meaningful relationship with him. They have made it more urgent that both parties try harder to support the child’s relationship with his father.
In her written submissions, the mother purported to give detail about the distress the child would suffer at greater travel. These submissions should be disregarded. Furthermore, even if taken into account, I would be unable to accept these submissions. As already pointed out at some length, the mother saw no real problem in bringing the child to Sydney when it suited her, apparently without any distress, in the months leading up to the final hearing.
Both parties submitted that the child should not be made to travel through airports, which were perceived to be high risk locations for contracting the corona virus. I have taken this into account, but I take judicial notice of the loosening of travel restrictions by the NSW government, and the fact that travel can take place by car.
While the father can continue to travel to the Town A Airport, or other airports, and Town B, I am satisfied that, before the child starts school, the mother should also deliver him on occasion to the father’s care in Sydney, at the father’s discretion. This is likely to be consistent with, and even conducive to her continuing social life in Sydney, described at some length earlier in these reasons, if she wishes to do so. This social life may have been curtailed by the pandemic, but even so the mother should take more responsibility for facilitating the child’s time with the father, and she should travel to Sydney for this reason alone. This will also allow the child to become acquainted more closely with the father’s home and life in Sydney. Consequently, I propose prior to starting school, a graduating arrangement that the child should spend two weekends each month with the father, with time to increase each two months to include surrounding weekdays. One weekend should take place in the Town B region, or possibly the Gold Coast, and, if the father chooses, one weekend can take place in Sydney, with the mother undertaking travel with the child. Once school commences, during term time there should be a similar arrangement which takes account of school days, with specific arrangements for school holidays.
In relation to Christmas each year after the child commences school, the evidence shows it is not practical for the child to spend time with each parent at Christmas, because of the distance between their respective homes. It would be disruptive and confusing for the child to have to move long distances between his parents. Consequently, I will order that commencing in 2021, the child spend half of Christmas school holidays on an alternating basis with each parent. When Christmas falls within a parent’s half of the holidays, the child will spend Christmas with that parent. Christmas 2020 shall be subject to a specific order.
Town A Airport has been during the proceedings a consistent place of changeover. The father proposed orders which provided for changeovers at Town A Airport or the residence of each parent in the event commercial airlines are not flying to Town A Airport. The mother has complained about Town A Airport, but my caution about her evidence leads me to place little weight on those complaints. She made mention of Town GG Airport in her written submissions. I do not know whether this is a viable alternative, but no doubt the father can give serious attention to this as a possible changeover location. Since the father will bear the greater burden of travel, I propose to make orders that he should enjoy a discretion about changeover locations, as well as a discretion not to take up time with the child by reason of the pandemic.
I also propose to make a specific order that both parents use their best endeavours to communicate about issues arising from the pandemic, including state and federal government restrictions.
The father’s orders propose both parents may travel domestically and internationally, upon giving the other parent notice and details of the proposed travel. As part of this the father proposes that the last parent travelling with the child be the holder of his passport. The mother resists this because “as …mother and primary carer” she should be the custodian of the child’s passport until required by either party, “to save any confusion”. I do not follow this submission and do not find it persuasive. As stated above at [102], I propose to make an order for equal shared parental responsibility. The mother may be the initial custodian of the child’s passport but thereafter it is convenient for the last travelling parent to hold the passport. I will make orders for domestic and international travel substantially as sought by the father.
I refer to [47] to [50] above. I am satisfied the mother would likely benefit from a Parenting After Separation course, and it appears she has not undertaken such a course despite previous orders that she do so. The orders will include a further order for her to do so.
Finally I note that interim orders were made on 6 December 2019, for the child to spend overnight, and other, time with the father over the Christmas period 2019. Reasons were to be given as part of this judgment. For the reasons discussed at length above, I formed the view there was no reason to prevent the child spending overnight time with the father. I also formed the view that the child should spend time with the father in the Christmas period 2019 while judgment was reserved.
Conclusion
For the reasons given I am satisfied the orders set out at the commencement of this judgment should be made.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 22 May 2020.
Associate: C.L
Date: 22 May 2020
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