Sigona & Sigona
[2024] FedCFamC2F 963
•24 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sigona & Sigona [2024] FedCFamC2F 963
File number(s): PAC 4354 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 24 July 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of the child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D. Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 22 – 23 July 2024 Place: Parramatta Solicitor for the Applicant: Cleofe Parsons Legal Solicitor for the Respondent: Remington & Co Solicitors ORDERS
PAC 4354 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIGONA
Applicant
AND: MS SIGONA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
24 JULY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The parents shall have equal shared parental responsibility for the child X born in 2016 (“the child”).
2.The child shall live with the father.
3.The mother spend time with the child as follows:
(a)Each alternate weekend during school terms from 8.45 am Saturday to 5.30 pm Sunday;
(b)For not less than one half of each Term 1, 2, 3, and 4 New South Wales school holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2024 and each alternate year thereafter and for the second half of all such holidays in 2025 and each alternate year thereafter;
(c)By attending with the child or at the child’s school at any time and subject to same being in accordance with policies of and acceptable to the child’s school;
(d)From 5.00 pm Saturday until 5.30 pm Sunday on the Mother’s Day weekend of each year;
(e)Such further and/or other periods as agreed between the parties from time to time.
4.If the mother is not already spending time with the child on his birthday pursuant to orders above, the mother is to have a facetime/video call with the child for 15 minutes at a time agreed between the parties, however failing such agreement, from 6.00 pm to 6.15 pm that day in a private setting.
5.If the mother is not already spending time with the child at the commencement of Eid-al-Fitr pursuant to orders above, the mother is to have a facetime/video call with the child for 15 minutes at a time agreed between the parties, however failing such agreement, from 6.00 pm to 6.15 pm that day in a private setting, with the mother to advise the father by electronic communication the commencement date of such religious occasion.
6.Unless otherwise agreed between the parties, for the purpose of the mother spending time with the child, changeover shall occur at Suburb B Shopping Centre.
7.Each party shall:
(a)Keep the other advised at all times of their residential telephone number and emergency contact number, and;
(b)Be entitled to telephone and speak with the child each Wednesday and Sunday between the hours of 6.30 pm and 7.00 pm.
8.Except in the case of an emergency, the parties shall communicate by way of the Our Family Wizard app. The parties shall only be required to use that app’s basic plan. If the mother wishes to use a plan on that app which requires a payment subscription, then she shall pay for it.
9.Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said child.
10.Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by the child including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised.
11.Each party is permitted to travel with the child within Australia at times when the child is in that party’s care pursuant to these Orders (or as otherwise agreed in writing between the parties) provided that:
(a)The travel does not involve the child missing any days of school;
(b)The travelling party provides the other parent with sufficient notice of not less than one week of such travel and provides details of the dates and location that they will be travelling to with the child, together with:
(i)If air travel is involved, a copy of the child’s return airline ticket;
(ii)A copy of the travel itinerary including the names and contact details of the accommodation in which the child will be staying, and;
(iii)A telephone number on which the travelling party can be contacted on at all reasonable times while interstate.
12.As and from 1 February 2025, each party be at liberty to travel overseas with the child, when they are in the care of the travelling parent (and otherwise only by agreement with the non-travelling parent’s consent not to be unreasonably withheld) and that any time lost by the non-travelling party shall be made up to the extent of 50% of the non-travelling parent’s time lost, for a period of up to fourteen calendar days, no more than once per calendar year per party, provided as follows:
(a)The travel does not involve the child missing any days of school;
(b)That the travelling party provide the non-travelling party with no less than one month’s notice of their intention to travel and the proposed dates and obtain the consent of the non-travelling parent prior to booking such travel if required;
(c)That in the event the child does not have a valid Australian Passport at the time of travelling, the parties shall do all things, including providing the other party with any of the child’s original documents required for the purpose of obtaining a Passport, and sign all documents necessary to obtain an Australian Passport with the cost to be shared equally between the parties;
(d)The travelling party taking the child outside of the Commonwealth of Australia will furnish to the non-travelling party an accurate itinerary, including copies of all tickets to be used for the travel, and stipulating the date on which the child will arrive and depart each country, together with a telephone contact number and address for which the child can be contacted in each country, not less than twenty-one days prior to departure;
(e)The travelling party shall provide the non-travelling party with confirmation that travel insurance has been obtained for the child for the purpose of the intended travel, together with a copy of the insurance policy, not less than twenty-one days prior to departure;
(f)The child is not to be taken to the country of Country C;
(g)The intended travel does not encroach on the child’s time with the non-travelling party over the Christmas period;
(h)The intended travel does not encroach on the child’s time with the non-travelling party on the child’s birthday.
13.That both parties sign all necessary documents and do all necessary things to maintain a passport for the child from time and in this regard, should the child require a passport:
(a)The party requiring the passport application to be signed (“the requesting party”) shall provide to the other party (“the receiving party”) the completed passport application for the child;
(b)Within fourteen days of receipt of the passport application the receiving party shall sign the passport application as required (including having any witness sign the application) and return the original and duly signed passport application to the requesting party;
(c)The mother and father shall equally pay the cost of obtaining and renewing the child’s passports, and;
(d)The parties shall cause any passport for the child to be held by this court’s Registry unless it is being used for overseas travel taking place by a parent with the child.
14.The mother shall take all reasonable steps to ensure that the child is safe when in the presence of Mr D.
15.The child shall forthwith be enrolled and attend E School and the parties shall forthwith complete all such necessary documentation to facilitate the child being so enrolled and attending such school.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the child X born in 2016 (“the child”). The child is presently 8 years of age.
Pursuant to interim orders of 3 November 2021, inter alia, the parents were to equally share parental responsibility for the child, and the child was to live with the father four nights per week and the mother three nights per week. The parents were to equally share school holiday time.
The father, aged 53, has re-partnered with a woman named Ms F, aged 43, who has one child of a previous relationship, G, who lives full time with the father and his partner.
The mother, aged 37, has re-partnered with Mr D and there are two children of that relationship, H aged 5, and J aged 1. On 7 June 2022 an order was made by consent that the child was not to be unsupervised or left alone in the presence of the mother’s partner.
PROPOSALS
The father seeks orders as set out in his Minute of Order, Exhibit C.
The mother seeks orders as set out in her Minute of Order, Exhibit D.
MATERIAL RELIED UPON
The father relied upon:
(a)His affidavit filed 27 December 2023.
The mother relied upon:
(a)Her affidavit filed 22 July 2024.
The following documents became exhibits:
(a)Exhibit A: Family report dated 7 May 2023;
(b)Exhibit B: Report of Dr K dated 5 November 2021;
(c)Exhibit C: ADHD rating scale for the child, copy emails, speech pathology summary for child dated late 2021, daycare letter;
(d)Exhibit D: Criminal history of Mr D.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. 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. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below).
The father presented satisfactorily, when giving his oral evidence. He often proffered fairly robust opinions as to why his proposed orders were in the best interests of the child. The mother presented satisfactorily also, when giving her oral evidence, whilst also exhibiting a certain emotional fragility. The mother later informed the court that she still does not have a driver’s licence and feels nervous in car traffic.
Family Report
The author of the Family Report dated 10 May 2023 was Ms L, Regulation 7 Family Consultant. The Family Report writer interviewed each parent, the father’s partner, the child, G, and H. The mother’s partner did not participate in the interview process.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Child Safety and Wellbeing”, the Family Report writer said:
18.The main concern relating to child safety and wellbeing in this matter is exposure to domestic and family violence. There have been several incidents of domestic violence including physical assault of [Ms Sigona] by both [Mr Sigona] and [Mr D]. It appears that [X] was present during some of these events and experienced frequent changes to his living and care arrangements as a result.
Under the heading “Adults”, the Family Report writer said:
34.[Mr Sigona] said that he understood [Ms Sigona] felt that [X] could have autism spectrum disorder (ASD) and/or attention deficit hyperactivity disorder (ADHD) and that he has taken him to a paediatrician. [Mr Sigona] said he did not thing [sic] he saw any signs and did not want to put him through more testing. He said that [X] was excitable at times but mostly happy and content.
Under the heading “Children and their relationships”, the Family Report writer said:
60.[X] was asked by the writer about his wishes. [X] said that he wants to live with his mother, wants to be happy and that he wants to see his mother's new baby. He said that if he lived with his mum that he would like to see his dad on the weekends and that he would miss his dad if he did live with his mum.
61.The writer interviewed [X] a week later when he was in the care of this father, and he talked again about liking [Ms F] as she can cook. He said that he has had a good week at school and that he had had a good weekend with his mother. [X] said, ‘everything is the same, I still want to live with my mum and visit my dad on the weekends.’ [X] said that he knows he cannot go to the same school at [Suburb M].
Under the heading “Evaluation”, the Family Report writer said:
72.At 7 years of age [X] is in the developmental phase of middle childhood. It is a time for developing independence outside of the home and developing a broader network of care and friendships. [X] is also starting to develop the capacity to understand complex relationships given his post separation parenting experience. [X] expressed a desire to return to live with his mother consistently during the assessment process. He also said he would miss his father if living with his mother. [X] also disclosed overhearing and incident where his mother and [Mr D] were arguing, and his mother was upset. In considering [X]’s expressed wishes, it is also important to consider that he is at an age where he is likely to want to please both his parents. [X] is aware his mother is very keenly and possibly expressing openly that she would like him to live with her. [X] does not have a full vocabulary of emotions yet to envisage the impact that changes to his care or school arrangements will have so will be relying on clear and consistent guidance of both his parents for future transitions.
73.In his future, [X] will be welcoming a new sibling in the maternal home, and this is a period of excitement, but also a period of increased demands on the mother. These increased demands on the mother’s care and attention are likely to impact on her ability to pick up [X] from [Suburb M] on public transport and there may need to be changes to the current orders to accommodate this. If [X] is residing with his mother, he is likely to feel a part of the maternal household and if attending school close by could have the opportunity to feel a cohesive part of his mother’s and his sibling's life. In considering this option, the risk presented by [Mr D]’s history of domestic and family violence needs to be considered.
74.The alternate option presented is that [X] attend school closer to his father’s home and this will also create increased cohesion with [X] and [G] attending the same school. The father and his current partner will be better able to meet commitments relating to his care reducing [X]’s travel time by two hours a day. This could also improve [X] and the family's wellbeing. However, this arrangement could have a negative impact on [X]’s relationship with his mother, creating additional barriers for her access to [X] and her involvement in his day-to-day life. [X]’s mother relies on public transport, and this is a significant barrier.
75.Domestic and family violence has been evaluated in this matter. Both [Mr Sigona] and [Mr D] appear to have both perpetrated violence against [Ms Sigona]. Police evidence supports at various times, protection was needed for [Ms Sigona] from [X]’s father and her current partner. [Ms Sigona]’s assessment of her own safety is that she has incrementally over time restored and repaired her relationship with [Mr D] revealing that a reconciliation will be forthcoming, and they are expecting a second child. This is the third relationship where [Ms Sigona] has been the victim of family violence. In all scenario’s [Ms Sigona] has come forward to accept support for her care and protection from Police and service providers and is aware of the support and services available to her if her safety is threatened in the future.
76.There appears also to be in this matter differing religious views of the parents, however both parents articulate they are supportive of [X] being exposed to both religions and cultures. The mother feels as that she has been denigrated and that her religious beliefs have not been considered or supported by the father. The father appeared to trivialise the mother’s expressed desire to return to her Muslim faith indicating that he did not know of its significance to her.
77.[Mr D] is likely to have a role in the life of [X] given the current family situation in the maternal household. It needs to be considered that instead of [Mr D] being restrained from having care of [X] unsupervised that he is subject to undertakings himself that support protection of the children against exposure violence or harm. The current undertaking made in July 2022 places substantial pressure on [Ms Sigona] to protect [X], a pressure she appears willing to accept.
78.[X]’s school attendance is an issue for both parties. [X] is in Year One at [N] School and both parents agree while it is a good school, it is not convenient for either of them. His school attendance in [N School] prevents [X] from having a community experience of attending school, unable to form friendships close to his place of residence and connect with the local area. While educationally it is possibly meeting his needs, the social role of school further isolates both parents from being engaged in the school community, events, and other aspects of school life.
79.Developmental concerns have been documented and raised primarily by the mother with follow up recommended. It appears that the father does not agree that [X] requires any support or is showing signs of ASD or ADHD. As a result of this [X]’s developmental needs and follow up are most likely to occur if he is in his mother's care.
The Family Report writer gave oral evidence. The Court does not propose to set out that evidence.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children and the making of a parenting order.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
During the parties’ relationship, the father assaulted the mother and an ADVO was made to protect the mother. He was on occasion verbally abusive towards her because the mother was Muslim and not Country O and she could not understand and speak language with the father’s family. The parties’ relationship ceased in October 2018. On the balance of probabilities, the father does not pose any risk of harm to either the child or the mother, with the Court observing that each party proposes an order that they have equal shared parental responsibility for the child.
After the parties’ relationship ceased, the mother developed a relationship with Mr D and in about mid-2019 an interim ADVO was made for her protection against Mr D for a period of about 12 months arising out of verbal and physical abuse directed by Mr D against the mother. At the time of this abuse the child was not in the physical presence of the mother and Mr D. Mr D complied with the conditions of the interim ADVO. Assault charges against him were withdrawn by the police (see Exhibit D). The court accepts that the mother and Mr D positively addressed that past domestic violence and that the communication between themselves is very good. The court accepts that Mr D exhibits positive behaviour towards the child. The father seeks an order that the child is not to be left unsupervised by the mother with Mr D. Whilst the court finds that Mr D does not pose any risk of harm to the child, to assuage the father’s concerns, the court will make an order that the mother take all reasonable steps to ensure that the child is safe when in the presence of Mr D; such order does not require formal supervision by the mother when the child is in the presence of Mr D. The court observes that the father’s proposed supervision order is impractical (and unnecessary) because the mother and Mr D have the care of two children of their own, one being a very young child.
The mother raises the issue of the child possibly having autism and/or attention deficit hyperactivity disorder (ADHD). For the father’s part, he asserts that he does not see any signs of either condition in the child. He expressed his concern that it would be potentially traumatic for the child to be presently assessed for either condition. The paediatric report of Dr K dated 5 November 2021 relating to the child stated the “impression” by the doctor that there were traits of ADHD and autism reported by the mother, also noted by his psychologist, “not as obvious in the clinic setting today and when with dad and a daycare, and speech articulation/sounding delay”. This doctor made certain recommendations relating to the child including a further preschool rating scale to be completed for ADHD. Exhibit C included an ADHD Rating Scale completed later by the child’s daycare which was unremarkable, with the Court observing that Dr K’s “Preschool ADHD rating scales completed with (the father) today was within norm.” Neither party adduced evidence from the child’s present school relating to possible autism or ADHD in the child. The evidence before the court does not justify an order being made requiring the child now being assessed for possible autism or ADHD.
(2)(b) any views expressed by the child;
The child expressed to the Family Report writer that he wished to live with the mother and spend time with the father on weekends. The Court attaches no significant weight to the child’s views in view of his tender age and likely discussions between the mother and himself relating to the proceedings.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to its discussions above in relation to the reassessment by Dr K of the child.
The mother asserts that the child has been exhibiting adverse behaviour in the school setting, including hitting and rudeness. The child is now in Year 2. The mother proposes that the child attend Q School, about 4 km from the father’s residence, in particular because this school, according to the mother, has a specific Management Behaviour program for children exhibiting problematic misbehaviour in the school setting. The mother adduces no documentary evidence relating to this program. Neither party adduces contemporary school evidence relating to this misbehaviour issue. There is no evidence, for example, that the child’s present public primary school at Suburb M has in recent times suspended the child from attending school because of significant misbehaviour. Neither party asserts that the child’s behaviour in the home environment is problematical. The family report writer did not address this issue to any significant extent.
The parties agree that the child should now live with the father and spend time with the mother. The father lives in Suburb S. The mother lives in the Suburb R area. He proposes that the child attend E School, which is located about 500 to 600 metres from his present residence. There is no evidence to suggest that E school will not be able to adequately manage any possible misbehaviour in the child during school hours.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
Both parties have such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has positive relationships with both parents and will benefit from the continuance of those relationships. The child appears to have positive relationships with the paternal grandparents. The child appears to have positive relationships with the father’s stepdaughter G, the father’s partner, and the mother’s partner and their children.
The parties were in essential agreement relating to the child’s time to be spent with the mother during school terms, namely that the child should spend time with the mother on fortnightly weekends during school terms. However they disagreed on the changeover time; the mother proposed fortnightly weekends from 9.30 am Saturday to 5.30 pm Sunday, whereas the father proposed fortnightly weekends from 3.00 pm Friday to 9.00 am Monday. The parties agreed that the changeover location was to be at Suburb B Shopping Centre being an approximate halfway point between the father’s residence at Suburb S and the mother’s residence in Suburb R.
The mother contended that it was quite impractical for her to pick up the child from Suburb B Shopping Centre on the fortnightly Friday afternoons after school because she was required to pick up her child H from a school in Suburb R after school finished on the Friday, and further that she had the care of her one-year-old child J. The court observes that it had suggested that the child H might attend after-school care at her school in Suburb R on the fortnightly Fridays to enable the mother to attend Suburb B Shopping Centre on the fortnightly Friday afternoon however the mother strenuously resisted such suggestion from a practicality perspective and with the Court observing that public schools usually charge after-school fees. The Court’s impression from the evidence is that both parties are of fairly modest financial means.
The father contended that it was impractical for him to cause the child to be dropped off at Suburb B Shopping Centre on the fortnightly Saturday morning, as proposed by the mother, because in recent times he was working as a tradesperson on Saturdays in the Suburb P area with a start time of about 8.00 am. The father has clearly endured significant car travel, for a significant period of time since the child has been attending E School, driving each weekday morning and afternoon to and from that school. Such car travel time has been in total about 2 hours and 30 minutes each day. Because the child will now attend E School, the father’s available work time can thereby increase.
During submissions, the mother informed the court through her legal representative that on the fortnightly Saturday morning during school terms she could arrive at Suburb B Shopping Centre by 8.45 am to pick up the child. Should the father drop off the child to Suburb B Shopping Centre at this time on the fortnightly Saturday morning, he should be able to thereafter drive from that place to his work in the Suburb P area taking about half an hour; he should be able to start work then on the fortnightly Saturday morning at about 9.15 am. Again, the father will have extra available work hours during Monday to Friday because the child will attend E School and not N School thereby eliminating car travel time for the father.
It will be impractical for the mother to return the child to Suburb B Shopping Centre at 9.00 am Monday each fortnight because of her need to have her other child H attend her school in Suburb R at 9.00 am Monday.
In all circumstances, it will be in the best interests of the child that he spend time with the mother during school terms each alternate weekend from 8.45 am Saturday to 5.30 pm Sunday, with the changeover point, again, being Suburb B Shopping Centre.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The father sought an international travel order effectively permitting him to take the child to Country C noting that his partner has relatives in that country. The mother opposes the child being taken to Country C until he reaches 16 years (the child is now 8 years) by reason of the political situation in that country. The content of the mother’s proposed order is quite speculative in that it implies that the situation in Country C may persist for a significant number of further years. It will be in the best interests of the child that neither party be permitted to take him to Country C. Should the situation cease and at some point thereafter Country C becomes a safe country to travel to for the child, and the father wishes to take the child to that country, it will be open to the father to make a discrete application to the Court setting out the evidential grounds as to why there has been a material change in circumstances relating to the safety of spending time in Country C.
The mother opposes the father’s proposed order that the parties communicate by way of WhatsApp; rather she proposes that the parties communicate through the Our Family Wizard app. The mother’s oral evidence indicated that her preference for the Our Family Wizard app was because she had paid a one year subscription for this app, messages were recorded, and it was more family orientated. The oral evidence of the family report writer supported this evidence of the mother. The father asserted that the parties had been communicating satisfactorily through the WhatsApp. It will be in the best interests of the child that the parties communicate through Our Family Wizard App for the reasons stated by the mother and the family report writer; however, the parties should only be required to subscribe to that App’s basic plan which, as was common ground, is free. Should the mother wish the parties to use the more expensive premium plan, then she should be required to pay for such plan.
As to the safekeeping of any passport for the child, the father proposed the court retain the passport and the mother proposed that she hold such passport because she did not trust the father. The child will continue to primarily live with the father. It will be in the best interests of the child that the Court Registry hold the child’s passport.
As to international travel with the child, such travel should not occur before 1 February 2025 so as to enable the child to begin spending regular time with the mother, and thereby their relationship to be enhanced, with the Court accepting the father’s evidence that the child’s time with the mother in recent times has not been consistent.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting Orders:
1.The parents shall have equal shared parental responsibility for the child X born in 2016 (“the child”).
2.The child shall live with the father.
3.The mother spend time with the child as follows:
(a)Each alternate weekend during school terms from 8.45 am Saturday to 5.30 pm Sunday;
(b)For not less than one half of each Term 1, 2, 3, and 4 New South Wales school holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2024 and each alternate year thereafter and for the second half of all such holidays in 2025 and each alternate year thereafter;
(c)By attending with the child or at the child’s school at any time and subject to same being in accordance with policies of and acceptable to the child’s school;
(d)From 5.00 pm Saturday until 5.30 pm Sunday on the Mother’s Day weekend of each year;
(e)Such further and/or other periods as agreed between the parties from time to time.
4.If the mother is not already spending time with the child on his birthday pursuant to orders above, the mother is to have a facetime/video call with the child for 15 minutes at a time agreed between the parties, however failing such agreement, from 6.00 pm to 6.15 pm that day in a private setting.
5.If the mother is not already spending time with the child at the commencement of Eid-al-Fitr pursuant to orders above, the mother is to have a facetime/video call with the child for 15 minutes at a time agreed between the parties, however failing such agreement, from 6.00 pm to 6.15 pm that day in a private setting, with the mother to advise the father by electronic communication the commencement date of such religious occasion.
6.Unless otherwise agreed between the parties, for the purpose of the mother spending time with the child, changeover shall occur at Suburb B Shopping Centre.
7.Each party shall:
(a)Keep the other advised at all times of their residential telephone number and emergency contact number, and;
(b)Be entitled to telephone and speak with the child each Wednesday and Sunday between the hours of 6.30 pm and 7.00 pm.
8.Except in the case of an emergency, the parties shall communicate by way of the Our Family Wizard app. The parties shall only be required to use that app’s basic plan. If the mother wishes to use a plan on that app which requires a payment subscription, then she shall pay for it.
9.Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said child.
10.Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by the child including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised.
11.Each party is permitted to travel with the child within Australia at times when the child is in that party’s care pursuant to these Orders (or as otherwise agreed in writing between the parties) provided that:
(a)The travel does not involve the child missing any days of school;
(b)The travelling party provides the other parent with sufficient notice of not less than one week of such travel and provides details of the dates and location that they will be travelling to with the child, together with:
(i)If air travel is involved, a copy of the child’s return airline ticket;
(ii)A copy of the travel itinerary including the names and contact details of the accommodation in which the child will be staying, and;
(iii)A telephone number on which the travelling party can be contacted on at all reasonable times while interstate.
12.As and from 1 February 2025, each party be at liberty to travel overseas with the child, when they are in the care of the travelling parent (and otherwise only by agreement with the non-travelling parent’s consent not to be unreasonably withheld) and that any time lost by the non-travelling party shall be made up to the extent of 50% of the non-travelling parent’s time lost, for a period of up to fourteen calendar days, no more than once per calendar year per party, provided as follows:
(a)The travel does not involve the child missing any days of school;
(b)That the travelling party provide the non-travelling party with no less than one month’s notice of their intention to travel and the proposed dates and obtain the consent of the non-travelling parent prior to booking such travel if required;
(c)That in the event the child does not have a valid Australian Passport at the time of travelling, the parties shall do all things, including providing the other party with any of the child’s original documents required for the purpose of obtaining a Passport, and sign all documents necessary to obtain an Australian Passport with the cost to be shared equally between the parties;
(d)The travelling party taking the child outside of the Commonwealth of Australia will furnish to the non-travelling party an accurate itinerary, including copies of all tickets to be used for the travel, and stipulating the date on which the child will arrive and depart each country, together with a telephone contact number and address for which the child can be contacted in each country, not less than twenty-one days prior to departure;
(e)The travelling party shall provide the non-travelling party with confirmation that travel insurance has been obtained for the child for the purpose of the intended travel, together with a copy of the insurance policy, not less than twenty-one days prior to departure;
(f)The child is not to be taken to the country of Country C;
(g)The intended travel does not encroach on the child’s time with the non-travelling party over the Christmas period;
(h)The intended travel does not encroach on the child’s time with the non-travelling party on the child’s birthday.
13.That both parties sign all necessary documents and do all necessary things to maintain a passport for the child from time and in this regard, should the child require a passport:
(a)The party requiring the passport application to be signed (“the requesting party”) shall provide to the other party (“the receiving party”) the completed passport application for the child;
(b)Within fourteen days of receipt of the passport application the receiving party shall sign the passport application as required (including having any witness sign the application) and return the original and duly signed passport application to the requesting party;
(c)The mother and father shall equally pay the cost of obtaining and renewing the child’s passports, and;
(d)The parties shall cause any passport for the child to be held by this court’s Registry unless it is being used for overseas travel taking place by a parent with the child.
14.The mother shall take all reasonable steps to ensure that the child is safe when in the presence of Mr D.
15.The child shall forthwith be enrolled and attend E School and the parties shall forthwith complete all such necessary documentation to facilitate the child being so enrolled and attending such school.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 24 July 2024
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