ROCHFORD & FITZHUGH
[2021] FCCA 451
•10 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROCHFORD & FITZHUGH | [2021] FCCA 451 |
| Catchwords: FAMILY LAW – Parenting – relocation – five year old child. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC Evidence Act 1995 (Cth) s.140 |
| Cases cited: B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 Godfrey & Saunders [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 M & S [2007] FamCA 1408; (2007) FLC 93-313 Mazorski v Albright (2008) 37 Fam LR 518 at 526 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 MRR v GR [2010] HCA 4 Sigley & Evor (2011) FamLR 239 Taylor & Barker (2008) 37 Fam LR 461 |
| Applicant: | MS ROCHFORD |
| Respondent: | MR FITZHUGH |
| File Number: | BRC 3717 of 2018 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 6 & 7 August 2020 |
| Date of Last Submission: | 1 September 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 10 March 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Ms Hawkshaw on a direct brief |
| Solicitors for the Respondent: | Self represented |
ORDERS
That the Mother and the Father have equal shared parental responsibility in relation to the child, X born in 2016 ("the child") including, but not limited to:
(a)the child's future education / choice of school;
(b)the child's cultural and religious upbringing;
(c)the child's name; and
(d)the child's health.
That notwithstanding the provisions of order 1 above:
(a)the Mother shall be responsible for the day to day care, welfare and development of the child whilst she is in her care; and
(b)the Father shall be responsible for the day to day care, welfare and development of the child whilst she is in his care.
That the child live with the Mother.
That, unless otherwise agreed in writing between the parties, the Mother be restrained from relocating the child’s residence beyond a distance 70 kilometres north of the Suburb E Post Office in Queensland, no further south of the Suburb E Post Office than the New South Wales/Queensland Border and no further west of the boundary of the Region F City Council.
That the parties do all things necessary to enrol the child in a school agreed to in writing between them and failing agreement at a Queensland public school no further than 40 kilometres from the Suburb E Post Office.
That, unless otherwise agreed in writing between the parties, the child spend time with the Father as follows:
(a)In week one of a two week cycle:
(i) from after school Wednesday to before school Thursday;
(ii) From after school Friday to before school Monday; and
(b)In week two of a two week cycle:
(i) from after school Wednesday to before school Thursday.
(c)For one half of all school holidays being the first half in even numbered years and the second half in odd numbered years.
That for the purposes of calculating school holiday time the following will apply:
(a)School holidays are deemed to commence at the conclusion of school on the last day of term and conclude at the commencement of school on the first day of the new school term;
(b)Changeover time during the school holidays will be at 3.00pm on the mid-point day and in the event that there is an uneven number of nights in any school holiday period, the Father will have the additional night in even-numbered years and the Mother will have the additional night in odd-numbered years.
That in the event the child has spent time with the father for the first half of the school holidays, Order (6)(a)(ii) will resume on the first weekend after the school term resumes and in the event the child has spent time with the father for the second half of the school holidays Order (6)(a)(ii) will resume on the second weekend after the school term resumes.
That, notwithstanding any order herein, the child spend the Father's Day weekend with the Father from after school on the Friday until before school on the Monday.
That, notwithstanding any order herein, the child spend time the Mother's Day weekend with the Mother from after school on the Friday until before school on the Monday.
That for the child's birthday, the child spend time with each parent as follows:
(a)in even numbered years with the Father:
(i)If a school day, from after school on the child's birthday until before school the next day; and
(ii)If a weekend, then from 3.00pm on the child's birthday until 9.00am the following morning.
(b)in odd numbered years with the Mother:
(i)If a school day, then from after school on the child's birthday until before school next day; and
(ii)If a weekend, then from 3.00pm on the child's birthday until 9.00am the following morning.
That the child be at liberty to telephone/Skype/Facetime the parent she is not living with or spending time with in accordance with these orders at any reasonable time and the parent with whom the child is living with or spending time with will facilitate the call.
That the parent the child is living with or spending time with in accordance with these orders must facilitate the child speaking to the other parent by telephone/Skype/Facetime:
(a)At any reasonable time requested by the child;
(b)Each Wednesday and Saturday between 6.00pm and 6.30pm;
(c)Each Easter Sunday between 9.00am and 9.30am;
(d)Each Christmas Day between 9.00am and 9.30am; and
(e)On the child’s birthday between 7.00pm and 7.30pm.
That each parent must use their best endeavours to ensure that the child has uninterrupted time during the child's call with each parent doing all that is necessary to ensure that the child is not distracted by background television noise and other background noises or persons during the child's telephone or video call with the other parent.
That by virtue of these orders, each parent is hereby authorised to obtain directly from the child's school and/or daycare all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited, and to be registered onto any school computer platforms for the child's schooling.
That each parent keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child, from time to time.
That by virtue of these orders, each parent is hereby authorised to obtain directly from the child's treating doctor/s, treating hospital, psychologist, counsellor, allied health worker, specialist or otherwise any information, reports and/or clinical records pertaining to the child.
That a parent shall inform the other parent, as soon as is reasonably practicable of any significant medical condition, significant health issue or illness suffered by the child and in the event of the child being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, and shall immediately and by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment;
(b)the medical or other complaint for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the prescribing or provision of such medication and/or treatment.
That each parent advise the other parent of any change of residential address, telephone number, including mobile number, email address and video conferencing ID for video calls for any other applications, within 48 hours of such change occurring by way of email or SMS text message to the other party.
That each parent must not criticise or denigrate the other parent or the other parent's family in the presence of or within hearing of the child. In the event that a third party is denigrating the other parent or other parent's family in presence of or within hearing of the child then that parent will immediately remove the child from that location to prevent the child hearing any denigrating statements regarding the other parent.
That the parents are to communicate and exchange information by SMS text or email in relation to parenting issues in a child focused manner.
That within seven (7) days of the date of these Orders, the Mother will do all that is necessary to complete and sign a Medicare application form with the Father to authorise the Father to also obtain a Medicare card for the child that the Father will retain for the child.
That the parents shall do all that is necessary and sign all documents as necessary in order to obtain or renew Australian Passports for the child and equally share the costs of the application.
That in the event that either parent wishes to take the child overseas for a holiday, then that parent will provide an itinerary to the other parent by way of email providing details of the dates of travel, destination, location of accommodation and contact number during the overseas trip and copies of flight or cruise tickets and accommodation bookings, and also proof of purchase of travel insurance for the child.
That the parent wishing to travel overseas with the child shall provide no less than 30 days for normal travel and in the event of an emergency such as a death of a significant family member of the child then a minimum of 72 hours notice to the other parent in writing by way of email or SMS text message.
That the other parent shall not unreasonably refuse overseas travel for the child with the other parent.
That the parent intending to travel with the child overseas will return the child to Australia pursuant to the intended travel itinerary, with the exception of any reschedule flights as rescheduled by the airline provider.
That the parent seeking to take the child overseas are restrained from taking the child to any non-Hague Convention country.
That the parents are each restrained from taking the child overseas to a country that is deemed by the Department of Foreign Affairs (DFAT) travel warning as being a high risk destination in the travel warning prior to the intended travel dates.
That the overseas trip for the child not exceed 21 days block of time, and the overseas trips will not exceed two (2) overseas trips per year, unless otherwise agreed to by the parents in writing.
That each parent travelling with the child maintain regular telephone contact with the other parent whilst overseas of no less than a telephone call within 2 hours of arrival at a destination, and at least twice in any seven (7) day period.
That in the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend private family dispute resolution (FDR) with a private FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute.
That failing agreement as to that appointment the party raising the dispute shall nominate three (3) private FDR practitioners, one of whom shall be chosen by the other party within 14 days. In the event that the other party fails, neglects or refuses to select a mediator then the other party shall select the mediator from the three nominated private FDR practitioners.
That the costs of the private mediator shall be equally shared by the parties.
That each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within seven (7) days of being requested to do so.
If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court is hereby appointed under Section 106A of the Family Law Act1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party or by the requesting party as to the said neglect or refusal.
The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt.
IT IS NOTED that publication of this judgment under the pseudonym Rochford & Fitzhugh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3717 of 2018
| MS ROCHFORD |
Applicant
And
| MR FITZHUGH |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of five year old X are unable to reach agreement as to her future parenting arrangements. Her mother, Ms Rochford, seeks orders that permit her to relocate with the child to Adelaide. Her father, Mr Fitzhugh, opposes her moving away from the Region F/Brisbane region.
After a final hearing conducted on 6 December 2018 orders were made on 1 February 2019 for the child to live with the mother and restraining her from moving the child’s residence further than 70 kilometres from Suburb A on the Region F. Upon appeal those orders were set aside and the matter remitted for rehearing. This is the judgment of the rehearing. Throughout this judgment I will refer to Ms Rochford as the mother and Mr Fitzhugh as the father or collectively as the parties and X as the child. I mean no disrespect in doing so.
Material relied on
The mother relied on:
a)Her Initiating Application filed 6 April 2018;
b)Her Notice of Risk filed 6 April 2018;
c)Her trial affidavit filed 29 June 2020;
d)Her further affidavit filed 29 June 2020 annexing the transcript of the proceedings of the previous final hearing on 6 December 2018;
e)The affidavits of:
i)Ms G filed 29 June 2020;
ii)Mr C filed 29 June 2020; and
f)The orders and reasons for judgment of Ainslie-Wallace, Aldridge JJ and Carew J delivered 21 November 2019.
The father relied on:
a)His Amended Response filed 23 July 2018;
b)His Notice of Risk filed 9 May 2018;
c)His trial affidavit filed 29 June 2020;
d)His further affidavit filed 30 July 2020 including the audio files annexed thereto;
e)The affidavits of:
i)Mr H filed 29 June 2020;
ii)Ms J filed 29 June 2020.
The Court had the benefit of two family reports prepared for the parties. The first was prepared by Family Consultant Ms K on 5 August 2018 and the second by Family Consultant Ms L on 17 June 2020. They were received into evidence and given exhibit markings C1 and C2 respectively. A family report prepared in the mother’s earlier proceedings with Mr C was also received as an exhibit and became exhibit F1. That report was prepared by Family Consultant Ms M and was dated 3 January 2009. A number of other documents were also tendered into evidence.[1]
[1]Exhibit M1 Transcript of Proceedings
The parties gave evidence and were cross examined. I found them to be honest and forthright witnesses who gave their evidence to the best of their ability. When their evidence differed I was satisfied it was not as a result of one party trying to mislead the court but as a result of their perceptions of events having being influenced by this ongoing dispute and the level of distrust between them. I will address any incidences where I have rejected a party’s evidence if that has had an influence on my decision making.
The other witnesses to give evidence were the paternal grandparents, Mr H and Ms J, the maternal grandmother, Ms G, and the mother’s former partner Mr C. All were impressive and honest witnesses. Ms L, the family report writer was cross-examined but Ms K was not required.
In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given. In order to avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[2]
[2] Section 140 Evidence Act 1995
Background
The mother is 44 years of age and hails from South Australia. The father was born in the United Kingdom and is 54 years of age. They met on an internet dating site in 2014 and commenced living together the following year. The child is five years old having been born in 2016. In January 2018 they separated under the same roof and two months later commenced living in separate premises.
Both parties have older sons from previous relationships. The mother’s son, Y is 14 years of age. In 2009, the mother entered into consent orders with her former partner, Mr C, in relation to Y. Those orders made provision for Y to live with his mother on the Region F and to spend time with his father two weekends per school term split between the Region F and Adelaide and half the school holidays, with the mother to meet the costs of the travel to facilitate those time arrangements. The mother’s evidence is that she and Y’s father “maintain a very effective co-parenting relationship”.
The father’s son, Z is currently 15 years old. The father, his former wife and Z emigrated from the United Kingdom to the Region F in 2008. Z lives with his mother and spends time with the father each weekend from Friday to Monday and for half the school holidays. The father described having a very easy co-parenting arrangement with his former wife.
Both parties alleged being the victim of the other’s abusive and controlling behaviours. The father also alleged that the mother was abusive towards his parents and Z. An argument between the parties on 1 March 2018 escalated to the father calling the police. The police attended but no action was taken and they recommended that he stay at alternate accommodation that night - the father did not return to the home. Following this incident, the mother applied for and was granted a temporary domestic violence protection order. The father refuted the mother’s claims asserting that they were totally fabricated and embellished accusations and in support referred to an audio recording he had made of the incident. At the domestic violence hearing in November 2018 the mother withdrew her allegations and the temporary protection order was dismissed. For reasons that will become clear later in this judgment I do not propose to address all of the allegations of family violence.
Prior to the birth of the child, the mother was employed by a company but was made redundant during her maternity leave. At the hearing, she was unemployed and receiving government benefits. Prior to emigrating from the United Kingdom, the father was a public servant and since arriving in Australia he has run a business. At the time of the hearing he was receiving Job Keeper allowance and his business qualified for some government assistance due to the COVID 19 pandemic.
The father lives above his business premises in Suburb E which is rented. At the time of the hearing the mother was living in a holiday unit. There have been times when she has had to vacate this property when it was required for holidaying tourists. In the orders made February 2019 provision was made for the father to pay the mother monies in order for her to secure accommodation in the Region F / Brisbane area. The orders provided:
[11] That the father shall pay an amount of $2,000.00, by way of contribution to her securing accommodation in the Region F/Brisbane area, and such payment shall be made as follows:
a. The mother shall notify the father in writing, by email, upon her having identified proposed rental accommodation in the Region F/Brisbane area, and the address of same;
b. The father shall within twenty-four (24) hours pay the sum of $2,000.00 into an account nominated by the mother for that purpose;
c. The mother shall forthwith apply for a tenancy of the property, in her own name and shall pay to the agent such amounts by way of bond and rent in advance as are necessary to secure that property for rental;
d. The mother shall notify the father forthwith upon securing the tenancy;
e. In the event that the mother is unsuccessful in securing the tenancy, the mother shall forthwith notify the father, and shall hold the amount of $2,000.00, pending identification of another property and application for a tenancy for same.
[12] That commencing Tuesday, 5 February 2019 and continuing for two years thereafter, the father shall pay to the mother the sum of $250.00 per week, such sum to be paid into an account nominated by the mother for that purpose.
These sums were paid by the father but the mother did not move into a long term rental which has placed a strain on her financial resources given she has had to pay a higher rent for the holiday unit and has had to move out and find other accommodation at times.
By the time the matter came on for hearing before me the child was living primarily with the mother and spending time with the father from 9.00am Thursday to 5.30pm Friday in one week and from 9.00am Friday to 5.30pm Sunday in the second week and every Wednesday from 9.00am to 5.30pm.
Applications
At the commencement of the hearing the parties invited the court to make the orders set out in their Outline of Case Documents. Annexed at the end of this judgment and marked with the letter A is a copy the mother’s proposed orders and marked with the letter B is a copy of the orders sought by the father.
In her submissions at the end of the hearing the mother maintained her desire to relocate to Adelaide with the child and proposed that the father would spend time with the child as follows:
in 2021;
i)Three weekends per school term with such weekends to coincide with a long weekend (if possible) and to include that public holiday, X will travel to Queensland on two occasions, and the Respondent father to travel to Adelaide on one occasion.
ii)For one half of the short term school holiday period’s; and
iii)For the longer Christmas holiday period commencing December 2021,
Christmas School Holidays Commencing 2021
iv)The child spend time with the father for the first two (2) weeks of the school holiday period and;
v)The child spend time with the mother for the following two week block – that being Christmas with the mother and;
vi)The following two (2) week block the child spend time with the father; and
vii)The final two week block of the December 2021 school holiday period the child spend with the mother
Commencing 2022 and every even numbered year thereafter
viii)X spend time with the father for the Christmas school holidays commencing on the last day of the school term for the first half of the school holidays; and
ix)X spend time with the Mother for the second half of the Christmas school holidays
Commencing 2023 and every odd numbered year thereafter:
x)X spend time with the Mother for the Christmas school holidays commencing on the last day of school term for the first half of the school holidays; and
xi)For the second half of the school holidays X spend time with the Father.
If the mother was not permitted to relocate with the child to Adelaide she proposed that she be able to live in the Brisbane area and that the child spend time with the father from after school Thursday until after school Friday in week one of a two week cycle and in week two from afterschool Friday until before school Monday. She proposed that the school holidays would be as set out above.
When making submissions at the conclusion of the hearing, the father’s counsel submitted that the mother should be restrained from changing the child’s residence away from the Region F and that the child should live with the parties in an equal time arrangement to be built up to a week about arrangement once the child is seven years of age. In the event that the court permitted the mother to move away from the Region F it was submitted that there should be a limit of 70km north of the Suburb E Office and that the child’s school should be no further than 35km from Suburb E.
Procedural history
The mother commenced proceedings on 6 April 2018 seeking inter alia to relocate with the child to Adelaide and for a property settlement. On 9 May 2018 the father filed his Response opposing the mother’s move to Adelaide.
On 21 June 2018 the parties reached an agreement on a final basis in relation to the property proceedings and a family report was ordered for the parenting proceedings. The family report of Ms K was released to the parties on 8 August 2018 and the matter proceeded to final hearing on 6 December 2018.
On 18 December ex tempore reasons for judgment were delivered which restrained the mother from relocating the child’s residence outside of the Region F area and the matter was adjourned to the following month in respect of the finalisation of the wording of the orders. The final orders in line with the reasons for judgment were issued on 1 February 2019.
In March 2019 the mother filed an appeal which was heard on 30 July. On 21 November 2019 Ainslie-Wallace and Aldridge JJ and Carew J (dissenting) delivered judgment allowing the appeal, discharging the orders made 1 February 2019 and remitting the matter for rehearing.
On 12 February 2020 I ordered an updated family report and adjourned the matter for a one day final rehearing. On 4 June 2020 I vacated the one day trial date and listed the matter for a two day hearing in August 2020. The updated family report was released to the parties on 18 June 2020 and the final rehearing proceeded on 6 and 7 August and 1 September 2020.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]
[3] S.60B
[4] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
i)Children have a right to know and be cared for by both their parents;
ii)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
iii)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
iv)Parents should agree about the future parenting of their children; and
v)Children have a right to enjoy their culture.
[5] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] S.61DA
[8] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[10] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[11] A major long-term issue in relation to a child means an issue:
[9] S.61B
[10] S.61C
[11] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[12]
[12] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[13] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[14]
[13] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[14] S.65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[15] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[16] In Taylor v Barker[17] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.[18]
[15] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[16] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[17] (2008) 37 Fam LR 461 at page 475
[18] U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and KB v TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships[19]
[19] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
There is no doubt that this child has a close and positive relationship with each of her parents. Neither party suggested otherwise.
Ms K observed the child with each of the parents in 2018 when she was only 2 years of age. She concluded that the child was primarily attached to her mother, having been in her daily care almost all of her life but that she also had a secure attachment with the father. At the time of the observation the child had been away from her mother for about a fortnight and Ms K was concerned that the child was somewhat confused when seeing the mother and then again when returning to the father’s care. Ms K suggested a natural reaction for a child of her age would have been to object more strenuously when being returned to the father. The report writer concluded that there may have been some damage to the child’s sense of trust and predictability by being away from her primary carer for two weeks at such a young age. Notwithstanding this concern Ms K observed both parents to encourage her gently and she considered that any confusion would resolve once her stays with each parent returned to routine.
Neither parent raised any issue about the child’s relationship with the other parent when the matter was heard before me. In light of this, and taking into account the impact of COVID on how interviews were to be conducted at the time Ms L interviewed the parties, the report writer elected not to observe the child with either party. The interviews were conducted electronically. Whilst it is always desirable for the court to have evidence of a family report writer’s observations of a child with each of the parents, in the circumstances of this case I am satisfied that Ms L made the right call and her report was not compromised by that decision.
Currently the child lives primarily with the mother but spends seven days with the father each fortnight which include three nights. His proposal would see the parties living in relative close proximity such that the child would live ultimately in an equal time arrangement but certainly in a substantial and significant time arrangement. An equal time arrangement was not supported by either family report writer. I will address this aspect of the father’s case later in this judgment. I am however satisfied that if the parents were living in close proximity the child would be able to have more frequent time with each of them such that she would be able to continue to develop and maintain her relationships with each of her parents and her brothers.
Section 60CC(2)(a) requires the court to assess as one of the primary considerations, the benefit of the child having a meaningful relationship with both of the parents. The father submitted that if the mother is allowed to relocate the child’s residence to Adelaide she will be deprived of an opportunity to have a meaningful relationship with him. The mother on the other hand argued that she would still be able to maintain a meaningful relationship by frequent visits to the Region F and by the father visiting Adelaide.
The authorities have made it clear that the legislation aspires to promote a meaningful relationship, not an optimal relationship.[20] In considering s.60CC(2)(a) the court should weigh the evidence and determine how orders can be framed to ensure that, subject to the child’s best interests, the child has a meaningful relationship with both parents. In doing so and having regard to s.60CC(3)(b) the court should assess the evidence of the nature of the child’s relationships at the date of hearing.[21]
[20] See M & S [2007] FamCA 1408; (2007) FLC 93-313; Godfrey & Saunders [2007] FamCA 102 and Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407.
[21] Sigley & Evor (2011) FamLR 239
The term “meaningful relationship” in the context of the legislation is a legal construct not a psychological one.[22] In Mazorski v Albright[23] Brown J held that: a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
[22] Sigley & Evor (2011) FamLR 239
[23] (2008) 37 Fam LR 518 at 526 at [26]
It was the mother’s case that even though her plan involved the child seeing the father less regularly she would still be able to maintain a meaningful relationship with him. She acknowledged that if the parents lived in different states the time the child could spend with her non-primary carer would not be optimal but submitted it would nonetheless be meaningful. She argued that as the child already has a close and positive relationship with the father, the relationship could be maintained by regular visits to the Region F or by seeing the father in Adelaide. In support of that argument she invited me to accept she would comply with orders to bring the child to Queensland as she complied with the orders to take Y to Adelaide to see his father. If the past is to be any guide to the future it could be said that the mother would comply with court orders and would promote an ongoing relationship.
The father argued that a move away from the Region F would significantly affect the child’s relationship with him, her brother and her grand-parents when they visit from overseas. The effect of such a move would see the child only spend time with her father once a month and during school holidays rather than her current arrangement which sees her spend time with him seven days a fortnight, albeit only three overnights. He argued that the time taken to travel interstate would eat into the weekend time he would have with the child, impinge on his ability to be involved in the child’s schooling, and compromise the quality of their relationship. There is much merit in his arguments.
Neither report writer supported the mother’s proposal. In the more recent report Ms L said it was important for the child to spend regular time with each of her parents and her brothers. She considered them to be her closest family members. Ms L opined that the child will not be able to maintain the connection she has with her father and Z if she lived so far away at this stage in her life. She was also concerned about the impact on extensive travel such a move would impose on the young child.
When giving her oral evidence I suggested to Ms L that many children in Australia lived in different states to one of their parents and managed to maintain their relationships. Although this was accepted by her, she was concerned about X’s young age. She considered that a move at this stage could have a negative impact on her relationship with her father. Ms L opined that older children, around seven or eight years of age are more able to adjust to a significant change of residence such as is proposed here. She said that by that stage children would have experienced time away from parents whilst they are at school and developing friendships. They would have started doing extra-curricular activities so their lives would have evolved differently to their experiences at four or five years of age. They would also be able to express their own views and have a better understanding of who they are and better able to articulate that. Ms L conceded that her recommendation against moving might have been different if X was older.
I accept the mother’s assertions that she intends to comply with orders to bring the child back to the Region F to see the father regularly. I saw nothing in the evidence to lead me to conclude that the mother was wanting to diminish the child’s relationship with the father. However when considering the evidence of the family report writers, especially the more recent report, I find that there would be a negative impact on the child’s relationship with the father if she was to move to Adelaide at this point in time. There is no doubt the mother’s proposal would not provide an optimal arrangement for the child’s time with the father but the question is will it take away from her the opportunity to have a meaningful relationship with him. At this point in her life I am satisfied that it will. My finding may have been different if X was three years older.
The child also has a relationship with her extended families. Her paternal grandparents live in Country N and prior to the Covid pandemic travelled to Australia on a regular basis. Although in their evidence they suggested seeing the child if she lived in Adelaide would be problematic for them I find that they would be able to make arrangements to see her there or in Queensland. The mother argued that if she lived in Adelaide the child would see her maternal grandparents more regularly. They live some ninety minutes from Adelaide and I am satisfied that the child would have more opportunities to develop her relationship with the maternal extended family if she lived in Adelaide.
Risk of harm[24]
[24] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Although there were issues between the parties that led to the mother obtaining a temporary protection order in 2018 she did not pursue her application. Both parents told Ms L that they were not fearful of the other, although the father was concerned that the mother may make false allegations of family violence against him. I am satisfied that the parties experienced situational violence at the end of their relationship but this is not a current concern and is unlikely to be so in the future. For that reason I will not address the evidence in relation to the historic acts of controlling behaviour alleged by the mother against the father.
There are no child safety concerns in either household although the parties agreed that they have different parenting styles. The father was concerned that the mother has used illicit substances such as cocaine. Whilst he thought this was historical he was concerned that the mother wanted to move to Adelaide to resume what he described as a ‘partying lifestyle’. I assessed the mother as one who would be protective of their child and would not use drugs that would impact her ability to parent. I am satisfied that this chid is safe in each parent’s care.
The child’s views[25]
[25] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Given X’s young age she was not interviewed by the report writer. I am satisfied that that was appropriate. The child was too young to express views that would be given any weight in determining this matter.
Practical difficulties[26]
[26] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
A significant issue for families living in different states are the practical difficulties of ensuring a child maintains a relationship with her non-primary carer despite the distance. If the mother and child move to South Australia there will be cost implications for the parents in ensuring the child sees the father regularly. There will also be issues associated with the effects of travel and how the travel would impact the time available for the parent and child.
At the time of the final hearing the mother was not in paid employment and relied on Centrelink benefits, child support and the $250 per week that the father has paid her pursuant to the order made 1 February 2019. By the time this judgment is delivered the father’s obligation to make those payments will have expired. The mother claimed that she has been unable to obtain work in her field whilst living on the Region F. It is her plan, if she moves to Adelaide, to set up a business in this field particularly aimed at the primary industry sectors. She did not provide any evidence of having a job to go to in Adelaide or evidence of a business plan that would enable me to find that she will be able to afford to pay for or contribute to the cost of sending the child to the Region F on a regular basis to see the father. Whilst I don’t doubt her desire to do so, I am not satisfied the mother would be able to realistically achieve the desired outcome if she was to pay for the travel or contribute to it.
There would be both time and costs implications for the father if he was to travel to Adelaide to spend time with the child. He currently runs his business from the Region F and I accept his evidence that his client base is in south east Queensland. I also accept that he would not be able to arrive into Adelaide until the evening of the Friday of a weekend and would need to leave by lunch time on the Sunday. This would in real terms mean that he would only get to spend one whole day with the child. If the child was to travel to the Region F the situation would be the same now that she would be attending school and would need to fly after school on a Friday and return Sunday afternoon to be ready for school on the Monday. Long weekends would of course afford one extra day.
The mother submitted that if the court found it was not in the child’s best interests to relocate to Adelaide then the court should consider making orders enabling her to move to the Brisbane area or within 70km of the father’s current residence. This option would alleviate the cost and time issues associated with travel. The father submitted that if such an order was to be made I should make an order requiring the parties to enrol the child in a school that was no more than 35km from the father’s residence to enable him to be more easily available to attend the child’s school. I will address this in more detail later in the judgment, however I accept, at least from a practical perspective, there is some merit in what the father submitted.
Parental capacity and responsibility[27]
[27] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (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.
There are no issues surrounding the capacity of the parents to meet this child’s day to day needs. They will continue to nurture her emotional and developmental needs and there is no suggestion they would not be able to attend her educational needs. The mother’s decision to stay in holiday accommodation rather than obtaining a more permanent rental property is suggestive of her focusing on her own desires rather than on the needs of this child and her older brother. The mother has on occasion been required to leave the unit for periods of time to allow tourists to stay there. This arrangement is not ideal especially in providing stability for the child.
Limiting further proceedings[28]
[28] S.60CC(3)(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.
There is some risk that if the mother was to move to Adelaide the parties might find themselves before the courts again if she is unable to afford the costs of flying the child to Queensland to spend time with her father. The mother argued that she has complied with the orders put in place for Y to spend time with his father in Adelaide and I should see this as an indication of her commitment to making the move work and for this child to see her father. I do not doubt her sincerity in that regard. The maternal grandmother also indicated that she would help her daughter out if she needed financial support to comply with the orders.
On balance I am not satisfied that there is any significant risk of further litigation if the child was to move interstate.
Any other fact or circumstance that the court thinks is relevant.[29]
[29] S.60CC(3)(m)
The mother gave evidence of desiring a closer relationship with her parents and family in South Australia. That is understandable. She also has a church community near her parent’s property that she would like to engage with more fully. The mother gave evidence that her family would be able to help out with child care as would Mr C, Y’s father. Whilst I accept this may be possible from time to time I am not satisfied that the mother will always be able to rely on people, especially at short notice. Mr C starts work at 6am and would rely on his mother to help in caring for Y and X if the mother needed his assistance. The maternal grandmother would be able to come to Adelaide from time to time but she is not living in close proximity to the mother. If the mother was living on the Region F she would be able to rely on the father to help out at short notice but I also accept she has no one else who could help her. The situation in Brisbane would be similar.
The father’s counsel argued that the mother did not need to live in Adelaide for her to conduct her business. The evidence is that the mother previously had clients in New South Wales, Western Australia and Queensland whilst she was living in South Australia. The mother said her main contacts were in South Australia and therefore it would be preferable for her to work from that state. I am satisfied that the mother’s proposed business would be able to be conducted by her in most major cities in Australia where she had good internet connection and access to an airport to enable her to travel to remote locations. I am satisfied that the Region F, Brisbane and Adelaide would all fall within that category. Having said that, it is important to emphasise that a person proposing a move does not have to show a compelling reason for desiring to do so.
Presumption of Equal Shared Parental Responsibility
The parties each sought an order for equal shared parental responsibility. Although there were allegations of historic controlling behaviour made by the mother against the father and a temporary family violence order I am satisfied that the presumption of equal shared parental responsibility applies. There is no evidence that would suggest that the parents would be unable to work together in making decisions for this child and I find that it is in her best interests for an order for equal shared parental responsibility to be made.
Consideration of Equal Time or Substantial and Significant Time
In light of my finding in regards to equal shared parental responsibility I must commence my assessment by determining if an equal time arrangement is both in this child’s best interests and reasonably practicable.
The father submitted that an equal time arrangement was in the child’s best interests and would be reasonably practicable if she remained living on the Region F. He said that the time should be gradually built up from the current arrangement until she is spending seven nights per fortnight with him.
The mother conceded that even if the court were to find that an equal time arrangement was in the child’s best interests, the court would not be able to find that under her proposal such an arrangement would be reasonably practicable. The mother however did not concede an equal time arrangement would be in the child’s best interests.
Both family report writers took the view that an equal time arrangement was not in the child’s best interests at the time the reports were written. Ms K’s report is somewhat dated and the child was only two years and four months old when those interviews were conducted. She considered an equal time arrangement would be disruptive for a child that age especially when the father was proposing handovers to take place every two or three days. Ms L in her report suggested the parents should review the child’s parenting arrangements when she had settled into school. She said that if the child became well settled and was coping well a shared care arrangement might work if a week about arrangement was implemented. In her oral evidence she did not support the father’s proposal for multiple changes over the fortnight.
In order for an equal time arrangement to be in a child’s best interests the court needs to be satisfied that the parents can work co-operatively together such that they can address issues that arise in a child focused way and that the child can feel comfortable in each parent’s home without losing a sense of stability. In this case the parents are now able to co-parent more effectively than they did soon after separation but they each hold different parenting styles and attitudes to life. After hearing their evidence I was left with the impression that they were not quite there in relation to making an equal time arrangement work. Whilst it is true that the child has been seeing the father for seven days a fortnight only three of them have been overnight. It may well be the case that when X is older and has settled into school a week about arrangement might be appropriate and in her best interests but I am not satisfied that now is the time to start that arrangement or the father’s proposal. Nor is it appropriate to make provision for such an arrangement in the future as it is not possible to predict how the child will adapt to spending more time with the father after settling into school.
If not satisfied that an equal time arrangement is in a child’s best interests the court must consider whether a substantial and significant time order is both in the child’s best interests and reasonably practicable. Substantial and significant time is defined in s.65DAA(3) as time that includes days that both fall on weekends and holidays and days that do not fall on weekends or holidays. The time should allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child as well has allowing the child to be involved in occasions and events that are of special significance to the parent.
The mother’s proposal would see some practical issues in achieving that as it would not be easy for the father to attend events at the child’s school mid-term and he would not be able to have regular mid-week time with the child. Therefore under her proposal a substantial and significant time order would not be reasonably practicable. Should the mother remain living on the Region F or in the southern area of Brisbane then such an arrangement would be reasonably practicable.
I am satisfied that a substantial and significant time order would be in this child’s best interests as it would allow each parent to be involved in the child’s schooling and extra-curricular activities. It would also give the child the opportunity to share with each of her parents days that are important to her and to them such as birthdays.
Discussion
This is a particularly difficult and finely balanced case. Two parents who care deeply for their child have asked me to make orders that would have a significant impact on the child’s relationship with the other parent.
I did not find any malevolent intent in either parent’s proposal. I well understand why the mother wishes to live in Adelaide. She wants to be closer to her family and, apart from one friend and her local church community, she does not have any family or supports on the Region F. The father does not have family in South Australia and has a long standing arrangement with the mother of his son, Z. He has an established business on the Region F that he cannot readily up root and move to Adelaide.
For the reasons set out in this judgment, I have come to the conclusion that X should continue to live with her primary carer, who has been her mother all of her life. Although each parent has a right of freedom of movement that right must give way if the child’s best interests will not be met by them exercising that freedom and also moving the child’s residence. Although she has a good relationship with him, I accept the evidence of Ms L that X is more likely to maintain that relationship from a distance if she was around seven or eight years of age. Although the mother’s proposal, if she is able to fulfil her offer to pay for the travel, would see the child spend time with the father a couple of weekends a school term and over the school holidays I am not satisfied that would be enough at this point in her life. I accept it is not the quantity of time that is important but the ability of a parent to ensure a quality experience for the child during the time spent but I find that that is unlikely to happen if the mother’s proposal is accepted. The father would not be able to take part in the child’s school activities or easily attend events, he would not be able to attend extra-curricular activities with her whilst living in a different state. These experiences are important for all children but especially young children. It helps them to develop their relationship with both their parents in a holistic way. It is these experiences that help develop the meaningful relationship. With older children a long distance arrangement may not be optimal but the child may well be able to maintain a meaningful relationship with the absent parent as their relationship has by that time developed in the context of sharing a number of varied experiences. They are also able to more easily use electronic devices to keep in touch. I find that this family is not yet at that point.
In coming to that conclusion I have not ignored the benefits this child would receive living in Adelaide. Her mother would be happier and that would have positive consequences for her parenting of X. Although I do not accept the mother would have the extent of the supports she has claimed, in that her parents will not be living close by, there would be times when they and other members of the family would be able to help out and the child would clearly benefit from having closer relationships with her extended maternal family.
It was difficult to assess what the mother’s financial position would be in Adelaide as she did not have a job to go to and her desire to re-start a business after an absence of a decade was lacking evidence as to viability. There remain real questions about the mother’s ability to afford the child’s travel back to Queensland. Although I accept the maternal grandmother’s evidence that she would help out, I have insufficient evidence as to the mother’s long term ability to fund this sort of arrangement.
The mother’s alternate proposal would see her take up an opportunity to look for work in a larger city but also spend time with the father more regularly. This would not necessarily overcome the issues the mother has in having supports available to her, particularly from family, but with the father living on the Region F he would be able to assist more than he could if the mother lived in Adelaide. The parties suggested a distance of 70km from the Suburb E Post Office as an appropriate distance. The father sought orders that would limit that distance to a distance north of Suburb E rather than give the mother a radius south and west. It was clearly the mother’s intention to move to Brisbane if she could not move to Adelaide and therefore the making of the requirement that the living distance be to the north of Suburb E is appropriate. This would see the mother live in an area no further north than Suburb O and would enable her to more easily work in Brisbane and for the father to more easily spend time with the child. I am satisfied that this distance is manageable for the parents and in the child’s best interests.
The father proposed however that any school the child attended should be within 35km of Suburb E so that he is able to actively take part in the child’s schooling. The difficulty for the mother with that arrangement is that if she is living close to the 70km from Suburb E she would need to travel south to get the child to school and then head north again to get to work. The father would have to travel in peak hour on days he collects the child from school. The situation is not ideal for either parent. The mother will be making the majority of trips to and from the school but I am satisfied that there needs to be some assurance that the father can get to the school mid-week and on Mondays and Fridays without having an adverse impact on the child through excessive travel. On balance I am satisfied the distance from Suburb E for the child’s school should be no more than 40km from Suburb E unless the parties reach a mutual agreement otherwise. I was not presented with any evidence as to the schooling options available to the child and will make an order that she be enrolled in and attend a school agreed to between the parents and failing agreement a school no further distant than 40km north of Suburb E Post Office.
In light of my findings above I need to address the appropriate arrangement that would ensure X’s best interests are met in the context of the where the parents would be living. I will be making an order that the mother be restrained from removing the child’s residence to a place other than within a 70km road distance north of the Suburb E Post Office. I have found that it would be in this child’s best interests to have significant and substantial time with her father. To achieve this I have come to the conclusion that she should spend time with him each alternate weekend from after school Friday to before school Monday as well as every Wednesday evening from after school Wednesday to before school Thursday.
The father sought an order that the child’s passport be deposited by the mother with the Court’s registry in Brisbane. I am not satisfied there is any need for such an order. There is no evidence of either parent being a flight risk with the child.
The father also sought orders in relation to how overseas travel for the child should occur. Apart from the issue of the child’s passport considered above I am satisfied that the father’s orders are reasonable and in the child’s best interests. She would benefit from overseas travel as she gets older but the non-travelling party should be kept informed of any proposed itinerary.
The father also sought an order restraining either party from unilaterally changing the child’s name. There is no evidence of this having been done and therefore an order to this effect is not necessary. In any event the parties each agreed to have equal shared parental responsibility for X and therefore they would not be able to change the child’s name without the consent of the other.
The father sought an order requiring the mother to complete a form to enable him to obtain a Medicare card for the child. That is appropriate and I will order accordingly.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 10 March 2021
Annexure A - Mother’s proposed orders taken from her case outline document filed 30 July 2020
Parental Responsibility
That the Mother and the Father have equal shared parental responsibility in relation to the child, X born in 2016 ("the child") including, but not limited to:
(a)the child's future education / choice of school;
(b)the child's cultural and religious upbringing;
(c)the child's name; and
(d)the child's health.
Notwithstanding the provisions of order 1 above:
(a)the Mother shall be responsible for the day to day care, welfare and development of the child whilst she is in her care; and
(b)the Father shall be responsible for the day to day care, welfare and development of the child whilst she is in his care.
Live With
That the child lives with the Mother.
That the Mother be at liberty to permanently relocate the child's residence to live in Adelaide, South Australia forthwith.
Spend Time With
That the child spend time with the Father at all times agreed in writing but failing agreement:
(a)Until the child commences Prep/Reception:
(i)One (1) weekend in every four (4), on the Region F commencing on a Friday afternoon from 3:00pm and concluding at 9.00am on the following Monday;
(ii)One (1) weekend in every four (4), with the respondent father in Adelaide commencing on a Friday afternoon from 3:00pm and concluding at 9.00am on the following Monday;
(iii)That time in accordance with 5(a)(i) and 5(a)(ii) above take place such that the child is spending alternate weekends with her father.
(b)Upon the child Commencing Prep/Reception in 2021:
(i)For one (1) half of each school holiday period (being the first half in even numbered years and the second half in odd numbered years), on the Region F or such other location as the father nominates.
(ii)On one (1) Occasion per school term in Adelaide, from 3.00pm Friday (or Thursday if a public holiday) until 9.00am the following Monday (or Tuesday if a public holiday).
(iii)On one (1) Occasion per school term on the Region F, from 3.00pm Friday (or Thursday if a public holiday) until 5.00pm Sunday (or Monday if a public Holiday).
(iv) And at such other times as agreed between the parties.
(c)That the mother be responsible for the costs incurred for the child's travel to the Region F and return and including any costs incurred for her flights to accompany the child; and shall book such flights and provide the father with details of those flights not less than 60 days in advance of the flights.
(d)That the mother be responsible for the costs incurred for the father's airline travel to South Australia, Adelaide; for a period of twelve (12 months) and the mother shall book the father's flights to and from Adelaide and provide him with details of those flights not less than 60 days in advance of the flights.
(e)That the father be responsible for the cost of accommodation during his travel to South Australia, Adelaide; and
(f)That all handovers are to take place at the airport of the city (Adelaide, the Region F, or Brisbane) to which the child will be travelling or in which the child will be spending time.
Special Occasions
That notwithstanding the above the child shall spend from midday 24 December, until 5.00pm on 26 December, 2020 with the father, and in subsequent years starting 2021 with the mother the first half of the Summer School holidays being December, and in subsequent years thereafter the child shall spend Christmas with the parent with whom she is spending the first half of the Summer School holidays. (being with the father in 2022 the first half of the Summer School holidays).
Telephone and Electronic Communication
The child shall be at liberty to telephone/Skype/Facetime the other parent at any reasonable time and the parent who has the child shall facilitate any reasonable request to do so.
That each parent be at liberty to telephone skype or facetime X, between 6.00pm and 6.15pm each, Saturday, and Wednesday she is with the other parent.
General Matters
That neither parent is to abuse, demean or denigrate the other parent, nor a partner, relative or associate of the other parent within the presence and/or hearing of the child and that both parents use their best endeavours to ensure that no third parties denigrate either parent, their partner or a relative in the presence and/or hearing of the child.
That in the event of an emergency relating to X, the party whose care X is in at that time shall notify the other as soon as possible.
That each party will provide the other party with a current telephone number and/or current place of residence as soon as practicable should there be any change in those details at any time in the future.
That if the parties require assistance in negotiating arrangements in the future that they attend Family Dispute Resolution.
That in the event of the parties residing on a permanent basis in the same city, then such shall be a significant change of circumstances and arrangements in respect of X are to be reviewed.
Annexure B - Father’s proposed orders taken from his case outline document filed 3 August 2020
Relocation of Child
That the Mother's application to relocate the child from the Region F Queensland to Adelaide South Australia is dismissed.
That the Parents are each is retrained from unilaterally relocating the child further than 50km from Suburb E on the Region F in the State of Queelsland [sic] without the prior written consent of the other parent.
Shared Parental Responsibility
That MS ROCHFORD (hereafter referred to as "the Mother") and the MR FITZHUGH (hereafter referred to as "the Father") (collectively hereafter referred to as "the Parents") have equal shared parental responsibility of:
(a)X born in 2016 (hereafter referred to as "the child")
That the Parents consult with each other and jointly make all decisions about major long- term issues in relation to the child's health, welfare, and well-being of the child including decisions regarding:
(a)the enrolment of the child for schooling and decisions regarding the choice of daycare and schooling for the child, and
(b)major health issues regarding the child including significant surgeries and other major medical treatments; and
(c)the child's participation in extracurricular activities such as sport, music, swimming and/or hobbies.
That the Parents are each not required to consult the other parent when making daily decisions while the child is in their care under this order about issues that are relation to general day to day care and that are not major long-term issues such as dietary intake, grooming and other such day to day decisions.
Child Live With Each Parent - Shared Care
That the child spend substantial and significant time with each Parent as may be agreed in writing between the Mother and the Father, but failing agreement, as follows in these Orders.
That until the child attains the age of 7 years, that the child live with each parent in a shared care arrangement of each fortnight as follows:
(a)Week 1 -
(i)That the child live with the Mother from 9.00am on Monday until 9.00am on Wednesday; and from 9.00am Friday until 9.00am Monday; and
(ii)That the child live with the Father from from [sic] 9.00am on the Wednesday until 9.00am on the Friday
(b)Week 2 -
(i)That the child live with the Father from 9.00am on Monday until 9.00am on Wednesday; and from 9.00am Friday until 9.00am Monday;
(ii)That the child live with the Mother from from [sic] 9.00am on the Wednesday until 9.00am on the Friday
Upon the child attaining the the [sic] age of 7 years, that the child live with each parent in a shared care weekabout arrangment [sic] with changeover of the child to occur at 3.00pm each Friday during school terms as follows:
(a)In odd even numbered years:
i)Week 1 - that the child live with the Mother from 3.00pm Friday until 3.00pm the following Friday; and
ii)Week 2 - that the child live with the Father from 3.00pm Friday until 3.00pm the following Friday; and
iii)Each week alternating thereafter.
(b)In even numbered years:
(i)Week 1 - that the child live with the Father from 3.00pm Friday until 3.00pm the following Friday; and
(ii)Week 2 - that the child live with the Mothe [sic] from 3.00pm Friday until 3.00pm the following Friday; and
(iii) Each week alternating thereafter
Changeover Venue
That until the child attains the age of 7 years, that the changeover venue will be at McDonalds at Suburb E if the child is not at school, and if the child is at school then the changeover will be at the child's school.
In the event of public holidays or school holidays, then the changeover venue will be at McDonald's at Suburb E.
That changeover may be facilitated by an agent for each parent whereby the agent is a person significant in the life of the child such as a close known relative of the child, close friend known to the child or the spouse of the parent.
That the agent or spouse provide photo identification such as a current driver's license to the other parent to verify their identity prior to the first changeover of the child, upon request of the other parent.
That the Mother is restrained from unilaterally changing the changeover venue without the prior written consent of the Father.
Christmas School Holidays
Commencing 2020 and every even numbered year thereafter:
(a)The child spend time with the Father for Christmas school holidays commencing on the last day of school term for the first half of the school holidays; and
(b)The child spend time with the Mother for the second half of the Christmas school holidays
Commencing 2021 and every odd numbered year thereafter:
(a)The child spend time with the Mother for Christmas school holidays commencing on the last day of school term; and
(b)For the second half of the school holidays the child spent time with the Father.
Easter School Holidays
Commencing Easter 2021 and every odd numbered year thereafter:
(a)The child spend the first half of Easter school holidays with the Mother; and
(b)The child spend the second half of Easter school holidays with the Father
Commencing Easter 2022 and every even numbered year thereafter:
(a)The child spend the first half of Easter school holidays with the Father; and
(b)The child spend the second half of Easter school holidays with the Mother
June/July School Holidays
That the child spend the first half of the June/July school holidays with the Father, and the second half of the June/July school holidays with the Mother for each odd numbered year commencing 2021 onwards.
That the child spend the first half of the June/July school holidays with the Mother, and the second half of the June/July school holidays with the Father for each even numbered year commencing 2022 onwards.
September/October School Holidays
That the child spend the first half of the September/October school holidays with the Father, and the second half of the September/October school holidays with the Mother for each even numbered year commencing 2020 onwards
That the child spend the first half of the September/October school holidays with the Mother, and the second half of the September/October school holidays with the Father for each odd numbered year commencing 2021 onwards
School Holiday Period and Additional School Holiday Time
That the school holidays are calculated as per the public school holiday calendar by the Queensland Department of Education if the child is attending a public school. If the child is attending a private school then the school holidays are calculated as per the dates and length of that private school.
For all school holiday periods, that any additional school holiday time provided in High School or by a private school be equally shared between the Parents, whereby the time with each Parent in these Orders is extended for the balance of the extra school holiday time.
Special Days - Birthdays, Fathers' Day, Mothers' Day
Fathers' Day Weekend
That the child spend the Father's Day weekend with the Father commencing 3.00pm on the Friday and concluding at 9.00am on the Monday
Mothers' Day Weekend
That the child spend time the Mother's Day weekend with the Mother commencing 3.00pm on the Friday and concluding 9.00am on the Monday.
Child's Birthdays
For the child's birthday, the child spend time with each parent as follows:
(a)in even numbered years the child spend her birthday with the Father:
(i)If a school day, then from 3.00pm on the child's birthday until 9.00am the next day with changeover at the child's school; and
(ii)If a weekend or school holidays or the child has not commenced schooling, then from 9.00am on the child's birthday until 9.00am the next morning with changeover at McDonald's Suburb E.
(b)in odd numbered years the child spend her birthday with the Mother:
(i)If a school day, then from 3.00pm on the child's birthday until 9.00am the next day with changeover at the child's school; and
(ii)If a weekend or school holidays or the child has not commenced schooling, then from 9.00am on the child's birthday until 9.00am the next morning with changover [sic] at McDonalds Suburb E.
With all other times on those days and any provision of time under this order that is inconsistent with these orders for holidays and special occasions to be suspended.
Video Calls and Telephone Calls Communication with the Child
Telephone Calls and Video calls between child and other parent
That the Parents will each do all that is necessary to facilitate Video calls such as FaceTime or any other application as agreed in writing between the parents, for a video call between the child and the other parent as follows:
(a)A video call each Saturday when the child is not in the care of the Father between 6.00pm to 6.30pm.
(b)On Easter Sunday and Christmas Day if the child is not in the care of the Father between 9.00am to 9.30am.
(c)On the child’s birthday in the event that the child is not in the care of the Father between 7.00pm to 7.30pm.
That the Father shall do all that is necessary to facilitate video calls such as Facetime or any other application as agreed in writing by the Parents, between the child and the Mother:
(a)A video call each Saturday if the child is not in the care of the Mother between 6.00pm to 6.30pm.
(b)On Easter Sunday and Christmas Day if the child is not in the care of the Mother between 9.00am to 9.30am.
(c)On the child’s birthday in the event that the child is not in the care of the Mother between 7.00pm to 7.30pm.
In the event that a scheduled incoming call from the Father is missed, then the Mother will initiate a callback for the child with the Father within 30 minutes of the missed call.
In the event that a scheduled incoming call from the Mother is missed, then the Father will initiate a call back to the Mother within 30 minutes of the missed call.
The parents will each facilitate a call from the child to the other parent from time to time as reasonable whilst the child is in the care of the other parent as reasonably requested by the child.
The father will provide a dedicated mobile phone for the child, if not already provided, (to be managed by each parent) which includes Facetime and any other video call app as agreed in writing by the parents, the Skype app and each parent is to ensure the mobile phone is charged and ready to accept any scheduled Facetime video call video call from the other parent.
The Father shall pay for the recharge of the mobile phone device each month for the child and the Mother shall do all that is necessary to ensure that the device data is reserved for the purpose of these Orders and not for gaming on the device by the child.
In the event that the said mobile phone is lost by the child and/or parent, then that parent will pay for a replacement mobile phone within seven (7) days which has Facetime capability such as an Apple Iphone.
That the Mother, Father each do all that is reasonably necessary to ensure that the child travels with the said dedicated mobile phone provided by the Father, when spending time with the other parent.
That each parent shall ensure that the child has uninterrupted time during the child's call with each parent doing all that is necessary to ensure that the child is not distracted by background television noise and other background noises or persons during the child's telephone video call with the other parent.
Specific Issues
By virtue of these orders, each parent is hereby authorised to obtain directly from the child's school and/or daycare all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited, and to be registered onto any school computer platforms for the child's schooling.
By virtue of these orders, each parent is hereby authorised to obtain directly from the child's treating doctor/s, treating hospital, psychologist, counsellor, allied health worker, specialist or otherwise any information, reports and/or clinical records pertaining to the child.
That the parent advise the other parent of any change of residential address, telephone number, including mobile number, email address and video conferencing ID for video calls for any other applications, within 48 hours of such change occurring by way of email or SMS text message to the other party.
That the parent not criticise or denigrate the other parent or the other parent's family in the presence of or within hearing of the child. In the event that a third party is denigrating the other parent or other parent's family in presence of or within hearing of the child then that parent will immediately remove the child from that location to prevent the child hearing any denigrating statements regarding the other parent.
That the parents are to communicate and exchange information by SMS text or email in relation to parenting issues in a child focused manner.
That each parent keep the other parent informed of the names and addresses of all treating medical or other allied health practitioners who treat the child, from time to time, and authorise those practitioners to provide the other parent with all information they are lawfully able to provide about the child.
Notification of accidents and illness whilst in care
The parent shall inform the other parent, as soon as is reasonably practicable of any significant medical condition, significant health issue or illness suffered by the child and in the event of the child being admitted to hospital for emergency treatment, treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, and shall immediately and by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment;
(b)the medical or other complaint for which the child was taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the child and the reasons for the prescribing or provision of such medication and/or treatment.
This Order authorises any treating medical practitioner to release the child's medical information to each parent.
That such notification by the parent shall be by SMS text or via email to the other parent for non-urgent medical issues, and by the best means possible in the event of emergency treatment including by telephone call.
That the parent shall provide full disclosure of the significant incident including the details of the treating medical facility and treating practitioners or allied health worker.
That the parent shall inform the other parent if they are taking the child to a GP or dentist and the other parent shall be informed of the outcome of the appointment, for any significant issue.
Medicare Card for Child
Within seven (7) days of the date of these Orders, the Mother will do all that is necessary to complete and sign a medicare application form with the Father to authorise the Father to to [sic] also obtain a medicare card for the child that the Father will retain for the child.
Child's Name
That the child will retain and be referred to by her birth name of X and her birth name shall be used by the parents for all legal documents and social enrolments including schooling and extra-curricular activities.
That the parents are each restrained from changing the child's name or having the child referred to by any other surname.
Child's Schooling
That the child attend a school (not home school) as agreed in writing by the parents, but failing agreement then the child attend a local public school which is in the catchment zone which is closest to each parent's residence on the Region F, and no further than 35 kilometers from the Father's residence on the Region F.
Dispute Resolution
In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend private family dispute resolution (FDR) with a private FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute.
Failing agreement as to that appointment the party raising the dispute shall nominate three (3) private FDR practitioners, one of whom shall be chosen by the other party within 14 days. In the event that the other party fails, neglects or refuses to select a mediator then the other party shall select the mediator from the three nominated private FDR practitioners.
The costs of the private mediator shall be equally shared by the parties.
Social Media for the Child
That the child shall only have social media accounts held on behalf of the child by prior mutual agreement in writing by the parents.
That each parent is restrained from publically posting photographs and identifying information regarding the child on social media without the prior written consent of the other parent.
Overseas Travel and Passport for the Child
That the parents shall do all that is necessary and sign all documents as necessary in order to obtain or renew Australian Passports for the child and equally share the costs of the application.
That such Passports for the child shall be retained in the custody of the Brisbane Registry of the Family Court of Australia:
In the event that either parent wishes to take the child overseas for a holiday, then that parent will provide an itinerary to the other parent by way of email providing details of the dates of travel, destination, location of accommodation and contact number during the overseas trip and copies of flight or cruise tickets and accommodation bookings, and also proof of purchase of travel insurance for the child.
That the parent wishing to travel overseas with the child shall provide no less than 30 days for normal travel and in the event of an emergency such as a death of a significant family member of the child then a minimum of 72 hours notice to the other parent in writing by way of email or SMS text message.
That the other parent shall not unreasonably refuse overseas travel for the child with the other parent.
That the parent intending to travel with the child overseas provides will return the child to Australia pursuant to the intended travel itinerary, with the exception of any reschedule flights as rescheduled by the airline provider.
The parent seeking to take the child overseas are restrained from taking the child to any non-Hague Convention country.
That the parents are each restrained from taking the child overseas to a country that is deemed by the Department of Foreign Affairs (DFAT) travel warning as being a high risk destination in the travel warning prior to the intended travel dates.
That the overseas trip for the child not exceed 21 days block of time, and the overseas trips will not exceed two (2) overseas trips per year, unless otherwise agreed to by the parents in writing.
That each parent travelling with the child maintain regular telephone contact with the other parent whilst overseas of no less than a telephone call within 2 hours of arrival at a destination, and at least twice in any seven (7) day period.
That the child's passport be returned to the safe custody of the Brisbane Registry of the Family Court of Australia within three (3) business days of returning to Australia by the traveling parent.
Power to Registrar
That each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within seven (7) days of being requested to do so.
If either party refuses or neglects to sign or execute and return a document within seven (7) days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party or by the requesting party as to the said neglect or refusal.
The costs of and incidental to such request and production of documents to the Registrar shall be borne by the defaulting party without further order of that Honourable Court and may be taxed or fixed by the Registrar or Deputy Registrar and thereafter shall be recoverable from the defaulting party by the other party as a debt.
That either party have liberty to apply as to implementation or enforcement of these orders upon the giving of 7 days written notice to the other.
Any other Orders as deemed fit by this Honourable Court.
Exhibit F2 Document A
Exhibit F3 Document C
Exhibit F4 Email dated 12 February 2019
Exhibit F5 Email dated 29 March 2019
Exhibit M2 Text message
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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