Somers and Somers

[2007] FamCA 87

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2007] FamCA 87

FAMILY LAW - CHILDREN - With whom a child spends time – Substantial and significant time

Family Law Act 1975 (Cth)

APPLICANT: Mr Somers

RESPONDENT: Mrs Somers

FILE NUMBER: SYF 4031 of 2005

DATE DELIVERED: 21 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Steele J

HEARING DATE: 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Beilby Poulden Costello

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: Millie Whyte

Orders

1.    That the children, A, born in August 1998 and J, born in June 2000 (“the children”) live with the respondent wife.

2.    That the parties have joint equal shared parental responsibility in consultation with each other with regard to major long term issues including but not limited to issues relating to the children’s education, religion, cultural upbringing, health and name.

3.    That each party has sole responsibility for the day to day care and welfare of the children during such periods as the children are with each party respectively.

4.    That during school time the children shall live with the father as follows:

(a)in the first week of a two week cycle from after school Wednesday until 6.00 pm on the following Sunday;

(b)in the second week of a two week cycle from after school Thursday until the commencement of school the following morning.

5.    That the parties have liberty to apply.

6. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-

(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-

(i)an obligation to do all reasonable things to give effect to the orders; and

(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.

(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties.  This sets out:-

(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and

(ii)details of who can assist parties to adjust to and comply with the orders made.

7.       That by consent orders are made in accordance with the document entitled “Consent Orders” filed in Court this 21^st day of February 2007 and certified by the husband’s solicitor, Ms Brooks, as set out hereunder:-

1.   The children A born in August 1998 and J born in June 2000 ( the children) spend time with the father as follows during the Christmas holiday period:

1.1For the 2007/2008 school holiday period as follows:

(a)From after school on 21 December 2007 to 5.00pm on 24 December 2007.

(b)From 2.00pm on 25 December 2007 to 6.00pm on 27 December 2007.

(c)From 8.00am on 7 January 2008 to 6.00pm on 22 January 2008.

1.2For the 2008/2009 school holiday period as follows:

(a)From after school on 19 December 2008 to 6.00pm on 23 December 2008.

(b)From 2.00pm on 25 December 2008 to 6.00pm on 8 January 2009.

(c)From 8.00am on 23 January 2009 to 6.00pm on 25 January 2009.

1.3 For the 2009/2010 school holiday period as follows:

(a)From after school on 18 December 2009 to 6.00pm on 23 December 2009.

(b)From 2.00pm on 25 December 2009 to 6.00pm on 27 December 2009.

(c)From 8.00am on 9 January 2010 to 6.00pm on 22 January 2010.

2.   Commencing year 2010, during the Christmas Holiday Period from 25 and 26 December the following is to occur:

2.1The mother will spend time with the children from 2.00pm on Christmas Day to 6.00pm on Boxing Day in even numbered years and from 3.00pm Christmas Eve to 2.00pm Christmas Day in odd numbered years and alternating hereafter.

3.   The father is to collect the children at the commencement of his time with the children and the mother is to collect the children from the residence of the father at the conclusion of his time with the children.

4.   That commencing immediately except at otherwise provided the children spend half of all school holidays with each parent by agreement and failing agreement with the father in the first half from after school on the final day of school in all even numbered years and alternating each even numbered year hereafter and with the father in the second half of all school holidays in all odd numbered years.

5.   That notwithstanding any other Order the children are:

a)With the mother from 8am to 6pm on Mothers Day

b)With the father from 8am to 6pm on Fathers Day

c)On each of the children’s Birthdays by agreement but failing agreement the children to be with the parent in whose home they are not living that morning from after school or 3pm to 8pm.

d)On the Mother’s Birthday:

i)If a school day from after school to 8pm

ii)If a non-school day from 8am on the birthday to 8am on the following day.

e)On the Father’s Birthday:

i)If a school day from after school to 8pm

ii)If a non-school day from 8am on the birthday to 8am on the following day.

6.   Liberal telephone communication between the children and each parent.

7.   Each party shall be at liberty to attend all school and extra curricular functions involving the children.

8.   Each party shall ensure that when the children are in their care they take the children to friends parties, sporting and extra curricular activities unless otherwise agreed.

9.   Neither party to denigrate the other to the children or either of them.

10. Each party undertakes to the court to forthwith notify the other in the case of an emergency.

11. That each party be permitted to take the children outside of Australia;

a)During their time with children; or

b)Outside their time with the children by agreement

Provided the parent who is to travel gives the other parent two weeks notice.

12. That save as otherwise specified herein, for the purposes of the father spending time with the children the father is to collect the children from school on a school day or the mothers residence on a non-school day at the commencement of the children’s time with the father and the mother to collect the children at the conclusion of the children’s time with the father.

13. That the mother will not relocate the children outside the Sydney metropolitan area without the fathers consent in writing and without giving the father at least three months notice of her intention to do so.

14. That the children spend time with the father during the Easter/April school holiday 2007 from 5pm on the 7th April to 6pm on the 18th April 2007 and otherwise during that holiday with the mother.

15. The father will provide school uniforms for the children within 14 days.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4031 of 2005

Mr Somers

Applicant

And

Mrs Somers

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting orders relating to two young children, A aged eight and a half and J aged six and a half.  The parties separated in July 2005 after a marriage of some eight years when the wife left the former matrimonial home with the two children.

2. In the lead up to the separation, the husband had gone through a series of financial difficulties, including bankruptcy and this created some substantial difficulties between the parties and no doubt a good deal of concern for the wife.  I think it is common ground that the husband did not inform the wife of all the details relating to his business difficulties.

3. The relationship between the parents is better than some and the husband has been able to have worthwhile contact with the children in the period since separation.  The husband seeks substantial and significant time with the children.  The wife concedes that he should have that but there is a dispute about the details.  Currently the children see their father one weekend each month from Friday after school until 5.00 pm on Sunday.  On two of the other three weekends in the month he has them all day on either Saturday or Sunday.  He has additional time especially with J in relation to rugby and T-ball commitments during the week and on Saturday mornings.

4. The husband’s Amended Application filed 13 July 2006 indicates that he seeks to have contact each alternate week from after school Wednesday until 6.00 pm Sunday and in the other week of the two week cycle from Wednesday after school until the commencement of school on Friday morning. 

5. The wife, by way of contrast, suggests that the husband should have contact every second weekend from Thursday after school until 5.00 pm Sunday.  In addition, she suggests that the husband should have contact after school Thursday until 6.30 pm in the other week of the two week cycle.

6. It is not in dispute that the children should live principally with the wife, that the parties should have equal joint parental responsibility and that the parents each have sole responsibility for the day to day care, welfare and responsibility of the children when they are in their care.

7. The difference between the parties then is that the husband seeks an additional 24 hours in the first week of the two week cycle (i.e. contact commencing on Wednesday after school rather than Thursday) and in the other week, the husband seeks two additional nights (i.e. Wednesday after school until Friday morning) rather than the more limited period after school Thursday until 6.30 pm as the wife contends.  Those are the issues to be determined by the Court. The parties have agreed a range of orders dealing with school holiday contact, Christmas contact and other matters relating to special days and orders precluding the children being taken out of Australia without notice to the other parent.

8. The Counsellor has recommended that the husband should have contact for one full weekend a month from after school Friday until the commencement of school Monday morning and on two other weekends, one from after school Friday until 5.00 pm Saturday and one from 5.00 pm Saturday until 5.00 pm Sunday plus one half of all school holidays.  In addition, she has suggested that each alternate week, the husband should have one mid-week overnight period of contact.  The Counsellor’s recommendations total some nine nights per month which the children would spend with the husband.

9. Each of the parties has been represented.

Short History

1. Mr Somers (“the husband”) was born in July 1966 and is now 40 years of age.  He is a financial planner employed by A Pty Ltd and pays child support to the wife of $1170.00 per month for the two children.  He resides at W in the northern suburbs of Sydney not far from the wife’s residence.

2. Mrs Somers (“the wife”) was born in March 1970 and is now 36 years of age.  She is employed as a marketing coordinator.  She resides in T with the two children of the marriage.

3. The parties commenced cohabitation in about June of 1997 and were married in October 1997. Separation occurred in July 2005 when the wife left the former matrimonial home with the children. 

4. There are two children of the marriage, A born in August 1998 who is eight and a half years of age and J born in June 2000 who is six and a half years of age.  The two children attend H Public School where A is in year 3 and J in year 1.

The Law to be Applied

1. The objects of Part VII of the Act are set out in Section 60B, which provides as follows:-

   “60B(1)     The objects of this Part are to ensure that the best interests of the children are met by:

   (a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   60B(2)           The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that  culture with other people who share that culture).

   60B(3)           For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)   to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)   to develop a positive appreciation of that culture.”

1. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.  Section 60CC provides that (subject to subsection (5) which is not presently relevant), in determining what is in the child’s best interests, the court must consider the matters set out in Section 60CC (2) and (3).  Those subsections set out some fifteen matters which the Court must consider, some as Primary Considerations and others as Additional considerations.  So far as relevant, I have considered those matters. 

2. Further, Section 61DA provides that in determining which orders are in the child’s best interests the court must (unless there are reasonable grounds to believe a parent has engaged in abuse of the child or another child in the family group or has engaged in family violence) apply a presumption that it is in the child’s best interests for the parents to equally share parental responsibility.  The presumption may however be rebutted if the court is satisfied that it would not be appropriate for the parents to have equal shared parental responsibility.

3. Additionally, Section 65DAA provides that if the Court proposes to make an order providing for equally shared parental responsibility (see Section 65DAC), the Court must consider whether it is reasonably practicable for the child to spend equal time with each parent and if so, whether that is in the child’s best interests to do so.  In this case the husband does not seek equal time so that will not be ordered.  The husband has said in evidence that in his view equal time would not be in the best interests of the children.

4. If the Court makes an order for equally shared parental responsibility but does not make an order for equal time with each parent, the Court must, in determining what is in the child’s best interests, consider whether it is reasonably practicable and in the child’s best interests for the child to spend substantial and significant time with each parent (Section 65DAA(2)).  The parties are agreed that even if the wife’s proposals are accepted it will constitute substantial and significant time.

5. In considering the issue of what is “reasonably practicable” the Court is required to consider the matters in Section 65DAA(5).

The Facts

1. The parties commenced cohabitation in mid 1997 and were married in October of 1997.  A was born in mid 1998 and J two years later. 

2. At the time the children were born, the husband was working long hours and apparently did not see a lot of the children, though he was able to see them in the morning before he left for work and those evenings when the children were not in bed when he returned.  The wife was involved full time in looking after the children and was not in paid employment. I think it is not in dispute that the wife did the majority of the mothering during that early period, though the husband was involved.

3. When J was born in June 2000, there were problems relating to reflux and these were matters of concern for both parents, although the wife contends that the husband failed to appreciate the full extent of J’s problem.  In recent times the problem has re-emerged in a serious way and J has had to undergo significant oesophageal surgery.

4. The wife had worked in full time employment as a manager prior to marriage.  In about mid 2002 it seems that the husband was made redundant and in December 2002 was declared bankrupt.  It may well be that the husband did not keep the wife fully informed about his financial difficulties perhaps as part of an attempt to protect her from the problems but it is apparent that the financial position was very worrying for the wife and she was very concerned about the husband’s failure to keep her informed and the implications of that.

5. It seems that in mid 2002 the wife obtained employment to assist the financial position, working sometimes a number of part time jobs. 

6. The evidence would suggest that from the time the wife commenced part time work and the husband obtained further employment shortly thereafter, that the husband spent more time with the children, especially at weekends when the wife was working. It seems that his involvement with the children in the years since then has been very significant.  In addition, he seems to have been fully involved in J’s early years at rugby and T-ball.

7. The husband’s evidence is that he was discharged from bankruptcy in May last year. 

8. The wife had some difficulties with relationships with the husband’s mother and sister and has sought in the years since early 2004 to limit the children’s contact with the husband’s family. The husband has resisted that.  The husband’s financial failures were not seen in a good light by the wife’s family and may have created or added to the difficulties.

9. The wife has expressed her concern about the children’s safety having regard to some matters surrounding the husband’s financial failures and ventures in which he was involved.  There is material obtained from the internet which might suggest that there are a number of people who have a poor view of his financial morals and attribute blame to him, with others, for losses which they have incurred. The wife’s Counsel has, however, specifically disclaimed any concerns about any of these matters and does not assert that any risk to the children or the family attaches.  I accept that approach.

10. It is apparent that in the time since separation in mid 2005 that the husband has been considerably involved with the children and has attempted to build a good relationship with them.  In that respect he has been successful.

11. There has been a large volume of correspondence between the parties’ solicitors dealing in many cases with typical nit-picking disputes which ultimately have given rise to the matter coming before the Court.

12. The Family Report prepared by an experienced Family Consultant, Ms M, records in summary form, the difficulties the parties have endured and records that in many respects, their relationship and capacity to communicate is better than many of the cases which are seen coming before the Court.  The children appear to be doing very well indeed and she has expressed in her report some concerns about what appears to have been conduct by the wife which may have led the children to harbour hopes of a reconciliation.  I have found Ms M’s report to be helpful and by and large I accept it.  I should record however that the husband himself has conceded talking to the children about possible reconciliation.

1. Ms M’s report records that the children have a very good relationship with each of their parents and the level of communication between the parties is such that it would be more than adequate to support equal shared parental responsibility.  She has recorded her view that there is no reason why the children should not spend significant and substantial time with their father who does not seek orders for equal time partly because he believes that if he were to do so, that may damage his relationship with the wife, but also because he believes it would not be best for the children.

The Section 60CC(2) and (3) Matters

The Primary Considerations

(a)The benefit to the children of having a meaningful relationship with both of the children’s parents.

The children do have a good relationship with both parents and live principally with the wife. The husband’s relationship with the children will be enhanced  and secured by him spending extra time with them.

(b)The need to protect the children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

There is no need.

Additional Considerations

(a)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;

The children have not expressed any relevant views except J who has said he wished to spend more time with his father.  A said she was happy with the present arrangement but was aware of her mother’s position when she expressed that view.

(b)The nature of the relationship  of the children with:

(i)each of the children’s parents; and

(ii)other persons (including any grandparent or other relative of the children)

The children have a close relationship with each parent and the evidence does not indicate that the husband’s application is contraindicated.

(c)The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent (having regard to the matters spelt out in s.66C(4)).

The Family Reporter has no real concern about the wife diminishing the children’s image of their father and I agree with that.  The husband has been a devoted parent in spending time with the children and in being involved in decisions about their life.  Both parents have been responsible.

(d)The likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from:

(ii)either of his or her parents; or

(iii)any other child, or other person (including any grandparent or other relative of the children), with whom he or she has been living.

The children will continue to spend the majority of their time with the wife in the orders proposed.  They will have weekends with each parent,  making time available for the children to see their respective grandparents.

(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 children’s right to maintain personal relations and direct contact with both parents on a regular basis.

There is nothing relevant.

(f)The capacity of:

(i)each of the children’s parents; and

(ii)any other person (including any grandparent or other relative of the children

to provide for the needs of the children, including emotional and intellectual needs.

The husband is an inexperienced cook and housekeeper but is a competent and involved parent and will be able to provide for the needs of the children.  The wife is a competent parent and the children have done very well indeed.  Their school performance is exceptional.  Both parents deserve credit for that.

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.

There is nothing relevant.

(h)If the child is an Aboriginal Child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right.

Not relevant.

1. The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents (having regard to the matters spelt out in s.66C(4)).

Each of the parents has been responsible in all relevant respects.

(j)Any family violence involving the children or a member of the children’s family.

There is none.

(k)An family violence order that applies to the children or a member of the children’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person.

There is none.

(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 children.

Nothing relevant.

(m) Any other fact or circumstance that the court thinks is relevant.

None relevant.

The Resolution of the Issues

1. The parties both love their children and in terms of the cases that all too often have come before the Court, they have a relatively good relationship with each other and are able to communicate. 

2. The wife underwent difficult times in circumstances where the husband was unemployed and went bankrupt but, perhaps as a means of protecting the wife, did not keep her fully informed.  These matters, coupled with difficulties associated with the child J’s serious reflux problem and at least in the initial stages the fact that the husband did not appreciate the full extent of the problem may have resulted in the wife being very protective of the children.

3. The result of the wife becoming protective of the children in this way may have made her less willing to expand, in particular, the overnight contact which the husband could enjoy.  This seems to have resulted in the need for the matter to come back before the Court.

4. The wife does, however, accept that the children love their father and that he loves them. In addition, she accepts that he is a good and devoted father as his conduct since separation has amply demonstrated. 

5. It is not in dispute that the children should live principally with the wife but the Counsellor who prepared the family report has put forward a relatively complex arrangement which would enable the children to spend some nine nights per month with the husband. 

6. Because of the complexity of the wife’s initial proposals, I asked her Counsel to reformulate them in a more simple fashion, which he agreed to do.  The end result is that there is a contest between the parties on the one hand as to whether the children should spend a four night block from Wednesday until Sunday in one week of a two week cycle with the husband as he suggests or a three night block as the wife suggests and in the other week, two overnights as the husband suggests or simply a few hours after school on Thursday evenings as the wife suggests.

7. Ultimately I have determined that the proposal put forward by the husband should be accepted save that in the second week of the two week cycle when the husband has no weekend contact the children should spend Thursday evening with him overnight rather than Wednesday and Thursday.  This results in the children spending a period of 10 nights per month with the husband in addition to such informally arranged contact as might occur for sporting events at the weekend.  This proposal seems to me to provide the husband with a significant band of contact, enabling him to develop to the full his relationship with the children which will be in their best interests.  It provides for the children to spend substantial and significant time with the husband.

8. I have given some thought to the proposition that an extension of the weekend contact from a two night period to the four night period that will now occur may be a little too great and a little too sudden.  On reflection however, that should not be the case and it will give the children a block period to spend with the husband comprising part of the school week as well as the weekend.

9. The other matters have all been the subject of agreement, save I am told for Easter contact, and the form of orders agreed by the parties. 

10. Accordingly, I make the following orders.

The Orders

1.    That the children, A, born in August 1998 and J, born in June 2000 (“the children”) live with the respondent wife.

2.    That the parties have joint equal shared parental responsibility in consultation with each other with regard to major long term issues including but not limited to issues relating to the children’s education, religion, cultural upbringing, health and name.

3.    That each party has sole responsibility for the day to day care and welfare of the children during such periods as the children are with each party respectively.

4.    That during school time the children shall live with the father as follows:

(a)in the first week of a two week cycle from after school Wednesday until 6.00 pm on the following Sunday;

(b)in the second week of a two week cycle from after school Thursday until the commencement of school the following morning.

5.   That the parties have liberty to apply.

6. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-

(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-

(i)an obligation to do all reasonable things to give effect to the orders; and

(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.

(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties.  This sets out:-

(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and

(ii) details of who can assist parties to adjust to and comply with the orders made.

7.   That by consent orders are made in accordance with the document entitled “Consent Orders” filed in Court this 21^st day of February 2007 and certified by the husband’s solicitor, Ms. Brooks, as set out hereunder:-

1.The children A born in August 1998 and J born in June 2000 ( the children) spend time with the father as follows during the Christmas holiday period:

1.1For the 2007/2008 school holiday period as follows:

(a)From after school on 21 December 2007 to 5.00pm on 24 December 2007.

(b)From 2.00pm on 25 December 2007 to 6.00pm on 27 December 2007.

(c)From 8.00am on 7 January 2008 to 6.00pm on 22 January 2008.

1.2For the 2008/2009 school holiday period as follows:

(a)From after school on 19 December 2008 to 6.00pm on 23 December 2008.

(b)From 2.00pm on 25 December 2008 to 6.00pm on 8 January 2009.

(c)From 8.00am on 23 January 2009 to 6.00pm on 25 January 2009.

1.3 For the 2009/2010 school holiday period as follows:

(a)From after school on 18 December 2009 to 6.00pm on 23 December 2009.

(b)From 2.00pm on 25 December 2009 to 6.00pm on 27 December 2009.

(c)From 8.00am on 9 January 2010 to 6.00pm on 22 January 2010.

2.Commencing year 2010, during the Christmas Holiday Period from 25 and 26 December the following is to occur:

2.1The mother will spend time with the children from 2.00pm on Christmas Day to 6.00pm on Boxing Day in even numbered years and from 3.00pm Christmas Eve to 2.00pm Christmas Day in odd numbered years and alternating hereafter.

3.The father is to collect the children at the commencement of his time with the children and the mother is to collect the children from the residence of the father at the conclusion of his time with the children.

4.That commencing immediately except at otherwise provided the children spend half of all school holidays with each parent by agreement and failing agreement with the father in the first half from after school on the final day of school in all even numbered years and alternating each even numbered year hereafter and with the father in the second half of all school holidays in all odd numbered years.

5.That notwithstanding any other Order the children are:

a) With the mother from 8am to 6pm on Mothers Day

b)With the father from 8am to 6pm on Fathers Day

c)On each of the children’s Birthdays by agreement but failing agreement the children to be with the parent in whose home they are not living that morning from after school or 3pm to 8pm.

d)On the Mother’s Birthday:

i) If a school day from after school to 8pm

ii) If a non-school day from 8am on the birthday to 8am on the following day.

e)On the Father’s Birthday:

i) If a school day from after school to 8pm

ii) If a non-school day from 8am on the birthday to 8am on the following day.

6.Liberal telephone communication between the children and each parent.

7.Each party shall be at liberty to attend all school and extra curricular functions involving the children.

8.Each party shall ensure that when the children are in their care they take the children to friends parties, sporting and extra curricular activities unless otherwise agreed.

9.Neither party to denigrate the other to the children or either of them.

10.Each party undertakes to the court to forthwith notify the other in the case of an emergency.

11.That each party be permitted to take the children outside of Australia;

a)During their time with children; or

b)Outside their time with the children by agreement

Provided the parent who is to travel gives the other parent two weeks notice.

12.That save as otherwise specified herein, for the purposes of the father spending time with the children the father is to collect the children from school on a school day or the mothers residence on a non-school day at the commencement of the children’s time with the father and the mother to collect the children at the conclusion of the children’s time with the father.

13.That the mother will not relocate the children outside the Sydney metropolitan area without the fathers consent in writing and without giving the father at least three months notice of her intention to do so.

14.That the children spend time with the father during the Easter/April school holiday 2007 from 5pm on the 7th April to 6pm on the 18th April 2007 and otherwise during that holiday with the mother.

15.The father will provide school uniforms for the children within 14 days.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele.

Associate: 

Date:  21 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SOMERS & SOMERS