Spencer and Zaber
[2014] FCCA 715
•8 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPENCER & ZABER | [2014] FCCA 715 |
| Catchwords: FAMILY LAW – Parenting application – whether equal time or substantial and significant time – high conflict, poor communication and trust – low levels of parental insight – Jewish observance in father’s household more strict than in mother’s household – where the father does not call his new wife to give evidence – where children’s relationship with father’s wife is unknown – where equal time is neither in children’s best interest or reasonably practicable – court comments on disproportionality between length and intensity of litigation and the issues to be resolved – where the financial aspects of the case are to be dealt with in a separate judgment. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII |
| Aon Risk Services v ANU [2009] HCA 27 MRR v GR [2010] HCA 4 Klein & Klein [2010] FamCAFC 150 Collu & Rinaldo [2010] FamCAFC 53 |
| Applicant: | MR SPENCER |
| Respondent: | MS ZABER |
| File Number: | SYC 3760 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 10-12 July 2013, 28-29 January 2014 and 17 February 2014 |
| Date of Last Submission: | 8 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Guterres |
| Solicitors for the Respondent: | Craddock Murray Neumann |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Sydney Central |
ORDERS
Parental Responsibility
That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2004 (“Y”).
Live With
That the children live with the mother.
Spend Time With
That the children spend time with the father as follows:
(a)during New South Wales Government school terms, each alternate weekend from after school on Friday until before school on Monday (or, in the event that the Monday is not a school day, until before school on Tuesday), with the cycle of alternate weekends to recommence on the first weekend of each school term.
(b)During the New South Wales Government school holiday periods at the end of terms 1, 2 and 3, unless the mother and the father otherwise agree in writing (being by email or letter), from:
(i)After school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period; or
(ii)6:00pm on the second Saturday of the school holiday period until before school on the first day of the new school term,
provided that the father gives the mother not less than four (4) weeks notice in writing (being by email or letter) of which week (if any) he intends to have the children spend time with him during such school holiday period;
(c)during the New South Wales Christmas school holiday period, unless otherwise agreed in writing (being by email or letter), for one week (7 nights) in either:
(i)the first two weeks of the school holiday period; or
(ii)the last two weeks of the school holiday period,
provided that, by the end of Week 3 of Term 4, the father gives the mother notice in writing (being by email or letter) of the date and time on which the children’s week with him will commence,
That the children spend additional time with the father as follows:
(a)on the following Jewish holidays, the dates of which shall be as set out on the website (omitted) (or such alternative calendar as the mother and the father may agree to in writing (being by email or letter)) and noting that the orders are intended to allow the children to be with the father at sunset on the day before the dates set out in such website:
(i)during Pesach (Passover), as follows:
A.from after school (or from 4:00pm if not a school day) on the sixth day of Pesach until before school (or 9:00am if not a school day) three days later;
(ii)during Shavuot (Festival of Weeks), as follows:
A.from after school (or from 4:00pm if not a school day) on the day before the first day of Shavuot until before school (or 9:00pm if not a school day) three days later;
(iii)during Rosh Hashana (Jewish New Year), as follows:
A.from after school (or from 4:00pm if not a school day) on the day before the first day of Rosh Hashana until before school (or 9:00am if not a school day) three days later;
(iv)during Yom Kippur (Day of Atonement) as follows:
A.from after school (or from 4:00pm if not a school day) on the day before the first day of Yom Kippur until before school (or 9:00am if not a school day) two days later;
(v)during Sukkot (Feast of Tabernacles) as follows:
A.from after school (or from 4:00pm if not a school day) on the day before the first day of Sukkot until before school (or 9:00am if not a school day) three days later;
(vi)during Shmini Atzeret (Eighth Day of Assembly) and Simchat Torah (Day of Celebrating the Torah) as follows:
A.from after school (or from 4:00pm if not a school day) on the day before the first day of Shmini Atzeret until before school (or 9:00am if not a school day) three days later;
with the father to:
(vii)take all reasonable steps to ensure that the children attend school on such days if they are required to do so by their respective schools
(viii)make appropriate arrangements for the children to travel from their respective schools to that father’s home at the conclusion of the school day or collect the children from the mother’s home at the beginning of this time (if not a school day); and
(ix)make appropriate arrangements for the children arrive at their respective schools in time for the commencement of the school day or return them to the mother’s home at the end of this time (if not a school day);
(b)on the Father's Day weekend from 7:00 pm on Saturday until 7:00 pm on Sunday, with the father to be responsible for:
(i)collecting the children from the mother’s residence at the beginning of this time; and
(ii)returning them to the mother’s home at the end of this time; and
(c)at such other times as the mother and the father may agree to in writing (being by email or letter), provided that:
(i)any such agreement must specify whether the children are to spend alternative time(s) with the mother in lieu of the time missed; and
(ii)if the children are to spend alternative time(s) with the mother in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the mother and what the arrangements for changeover will be.
That Y spend additional time with the father on all (omitted) College, pupil free days and school holidays which do not coincide with New South Wales Government school pupil free days and school holidays (“(omitted) College non-school days”), from after school (or 4:00 pm if not a school day) on the day before such (omitted) College non-school day(s) until before school (or 9:00 am if not a school day) on the day after the (omitted) College non-school day(s).
That the children's time with the father pursuant to Orders 3, 4, 5 and 6 above shall be suspended:
(a)on each Mothers' Day weekend, from 7:00 pm on Saturday until 7:00 pm on Sunday, with the mother to be responsible for:
(i)collecting the children from the father’s residence at the beginning of this time; and
(ii)returning them to the father’s home at the end of this time;
(b)each Christmas from 4:00 pm on Christmas Eve until 7:00 pm on Christmas Day, with the mother to be responsible for:
(i)collecting the children from the father’s residence at the beginning of this time; and
(ii)returning them to the father’s home at the end of this time; and
(c)at such other times as the mother and the father may agree to in writing (being by email or letter), provided that:
(i)any such agreement must specify whether the children are to spend alternative time(s) with the father in lieu of the time missed; and
(ii)if the children are to spend alternative time(s) with the father in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the father and what the arrangements for changeover will be.
That for the purposes of these Orders, unless otherwise provided for in these orders or otherwise agreed between the father and the mother in writing (being by email or letter), changeovers shall occur as follows:
(a)for changeovers which occur at the start of a school day, the parent with whom the children have been living or spending time prior to the time of changeover shall make appropriate arrangements for the children to arrive at their respective schools in time for the commencement of the school day;
(b)for changeovers that occur at the end of the school day, the parent with whom the children will be living or spending time after the time of changeover shall make appropriate arrangements for the children to travel from their respective schools to that parent’s home at the conclusion of the school day;
(c)for changeovers that occur at other times:
(i)the father shall be responsible for collecting the children from the mother’s home at the commencement of the time they are to spend with the father; and
(ii)the mother shall be responsible for collecting the children from the father’s home at the end of the time they are spending with him.
Communicate With
The mother and the father ensure the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.
Health
That the mother and the father shall:
(a)provide each other with and keep each other advised of the names and addresses of the children’s treating doctors;
(b)inform each other in writing (being by email or letter) as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and
(c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the receipt of the report.
That both the father and mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and
(b)discuss the children’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours that the children are to spend with the father.
That the father shall ensure that the mother is notified as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
Education
That, unless the mother and the father otherwise agree in writing (being by email or letter), Y continue to attend (omitted) College for both primary and secondary schooling, on the basis that the father must:
(a)accept responsibility for and pays for all (omitted) College fees as per (omitted) College's Term Fee Statements in respect of Y’s attendance at (omitted) College each year and enters into a contract with (omitted) College to that effect by no later than one week before the end of (omitted) College's Term 4 each year; and
(b)provide the mother with a copy of the above contract by the end of (omitted) College's Term 4.
That, unless the mother and the father otherwise agree in writing (being by email or letter), X continue to attend (omitted) High School.
That the mother and the father notify each other in the event that either of the children will be or has been absent from school fore more than two consecutive school days.
Contact Details
That the mother and the father notify each other of any change in telephone contact numbers and email address, such notification to be made in writing (being by email or letter) and within twenty-four (24) hours of any change.
That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing (being by email or letter) and no less than fourteen (14) days prior to the proposed change.
Overseas Travel
That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the mother, at the mother’s expense, in every twelve month period commencing 1 December of each even numbered year (e.g. between 1 December 2014 and 30 November 2015), provided that:
(a)the mother provides the father with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;
(b)the period of absence from Australia does not exceed four (4) weeks; and
(c)the mother provides the father with a copy of:
(i)the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;
(ii)a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and
(iii)in the event that the period of travel will result in either of the children having to miss more than three (3) school days, a copy of a letter or other document evidencing that the relevant school has approved the child’s absence from school during the overseas travel.
That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the father, at the father’s expense, in every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016), provided that:
(a)the father provides the mother with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;
(b)the period of absence from Australia does not exceed four (4) weeks; and
(c)the father provides the mother with a copy of:
(i)the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;
(ii)a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and
(iii)in the event that the period of travel will result in either of the children having to miss more than three (3) school days, a copy of a letter or other document evidencing that the relevant school has approved the child’s absence from school during the overseas travel.
That, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the Mother and the Father shall:
(a)take all steps necessary to ensure that each of the children has a current, valid Australian passport at all times, the cost of obtaining or renewing such passports to be shared equally by the mother and the father;
(b)ensure that the children’s current passports are held by:
(i)the mother in 2014 during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2014 and 30 November 2015); and
(ii)by the father during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016).
Restraints and Injunctions
That the Mother and the Father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Zaber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3760 of 2011
| MR SPENCER |
Applicant
And
| MS ZABER |
Respondent
REASONS FOR JUDGMENT
Preface
Often reasons for judgment represent the Court’s attempt to balance competing needs and interests. In parenting cases children need orders made that represent the Court’s best estimation of what is in their best interests, in a context where their parents’ estimation about this is grossly divergent. Reasons for judgment explain why the Court has made certain orders. The main audience is the parents. They are entitled to know why orders have been made. There are other audiences for reasons for judgment including those who represent litigating parents, appellate Courts and the general public. The general public is included in the potential audience for reasons because they are entitled to know how the law is applied in diverse factual situations. The interest of the general public can also be understood to include the broader public interest in seeing and understanding how a publicly funded court system operates. The public interest in litigation has been recognised at the highest judicial echelons. His Honour Chief Justice French has recognised that “… the time of the Court is a publicly funded resource”: Aon Risk Services v ANU [2009] HCA 27 (5 August 2009) at [5]. In that same paragraph His Honour stated: “Inefficiencies in the use of that resource…are to be taken into account. So too is the need to maintain public confidence in the judicial system.” These are statements of broad legal principle. The reasoning of the plurality (Gummow, Hayne, Crennan, Kieffel and Bell JJ) does not evidence any difference of principle with the Chief Justice (for example [116]). It is possible that these statements of principle are not to be limited to strict issues of case management, but indeed inform how cases such as the present one are to be adjudicated.
This case took six hearing days to hear. It has taken several days to write the present judgment which deals only with the parenting aspect of the case. It will take several days to write the judgment as regards the financial aspect of the case. This massive investment of judicial resources was completely disproportionate to the issues before the Court. It is important to record this because the public has a legitimate interest in how judicial time is used, whether in Court or out of Court. This case took so long because of the way in which it was conducted by the parties. Each participated in a zealous quest for what he/she considered to be the truth which, hopefully from their perspectives, coincided with what was in their children’s best interests. Each party became obsessed, indeed fixated, with detail. The material filed, particularly by the father, was unnecessarily voluminous. His affidavits extended to over 1000 pages.
This case was not a complicated one. It will ultimately be decided by the application of legal principles that were identified before the evidence started, and which were pointed out to the parents, particularly the father. Regrettably the personalities of both parents may have blinded them from seeing the obvious.
These reasons for judgment, and the reasons for judgment in the financial aspect of the case, will not descend into the detail with which every party presented and argued their case. It is not in the public interest to allow this unnecessary litigation to unnecessarily consume even more judicial resource than it has.
Introduction
These reasons for judgment explain why the Court has made orders in this case. The reasons relate solely to the parenting aspect of the dispute, with the property aspect to be dealt with at a later time. There are two children who are at the centre of this Court case. X is 13, but will turn 14 in (omitted). Y is 10. The children currently live with their mother and spend regular time with their father. The father is the applicant. He is 51 years old and works as a (occupation omitted). He lives in (omitted), a (omitted) Sydney suburb. The respondent is the children’s mother. She is 45 years old and works as a (occupation omitted) in a (employer omitted) Sydney. She currently resides with the children in what was the former matrimonial home at (omitted), another (omitted) Sydney suburb.
In very simple terms the father would like equal time with the children whereas the mother would like to see the current arrangement continue in relation to the children. There are also a number of important but nonetheless ancillary issues in dispute.
Background
The parents lived together for a year or so until they married in 1999. They separated in February 2010, and this was preceded by a number of years of matrimonial disharmony. The father is Australian. The mother is of (country omitted) background. She was born in (country omitted) and came to Australia on a student visa in 1989, becoming a permanent resident in 1995 and an Australian citizen in 1997.
Both the mother and father converted to Judaism in reformed conversion in early years of their marriage. They later both made an orthodox conversion.
The father has repartnered, indeed remarried. His wife, Ms R, is 43 years old.
X is in Year 9 at (omitted) High School, a co-educational selective state school in Sydney’s (omitted) suburbs. Y is Year 5 at (omitted) College, a Jewish day school in (omitted). After the parents separated in 2010, the children lived apart for a short period, X with his father and Y with her mother. Thereafter they returned to the mother’s care. The current arrangement is that X and Y spend every second weekend with their father, from Friday afternoon until Sunday evening.
In addition to the dispute about how much time the children should spend with each parent the mother sought an order for sole parental responsibility, a position that she only adopted at or shortly prior to the final hearing. There are a number of specific issues that arise in relation to the children’s education, and the extent to which they should live an orthodox Jewish lifestyle.
The hearing took place over six days on 10-12 July 2013, 28 and 29 January 2014, and 17 February 2014. The last set of written submissions in the matter became due on 4 April 2014. The length of this hearing was attributable to a number of factors. The mother pursued, in her property claim, a non-disclosure case that involved a detailed forensic examination of the father’s financial circumstances. The father, who was representing himself, felt it necessary as a result to engage in a very detailed and meticulous response to the allegations made against him. The length of the hearing may have been contributed to by the father representing himself but, if the delay was solely attributable to that factor, the extension in hearing time was not particularly significant.
Further Background
There is a dispute between the parties as to when, exactly, their relationship commenced. That has no bearing on the present issue, that is, the parenting case. The parents certainly converted to Judaism on marriage, but it was not until a few years later that the father became stricter in observing his Jewish faith. By contrast, at least since separation, the mother’s observance has declined. It was in 2006 that they both converted to orthodox Judaism. The difficulties in the marriage can be traced back to as early as 2008, though nothing turns on this. They finally separated in 2010, though there is a dispute between the parents as to when that exactly took place. Nothing turns on that in the present part of the case.
After separation X lived with his father and Y with her mother. Within a short period both children remained in the mother’s care. The post-separation period is marked by multiple issues relating to parenting that arose between the parents. In very broad terms the differences, and the issues that arose, are best explained by the parents’ inability to communicate, different personalities and parenting styles and the complete lack of trust that has existed between them. They attended mediation which did not assist. Litigation was eventually commenced in 2011. The father’s application did not originally seek equal time, but that was certainly the order sought by him in his amended application filed 8 July 2013. The mother’s response has consistently sought that the children spend time with their father each alternate weekend, but until recently she sought equal shared parental responsibility. The property litigation between the parents has been very intense and has, in the Court’s opinion, made it much harder to resolve the parenting issues. Various interim applications came before Her Honour Judge Sexton, before the matter was finally listed before me. For example, Her Honour ordered that X attend (omitted) Boys' High School from 2012, and Y attend (omitted) College.
Orders Proposed by the Parents
The father’s proposed orders are contained in his amended application filed 8 July 2013. Those orders are reproduced in the first schedule to these reasons. The father proposes equal shared parental responsibility and equal time. For all practical purposes the father’s proposal for equal time was to continue during school holidays. In addition the father proposed that the children live with him on all orthodox diaspora Jewish holidays and sought specific orders about X attending Jewish camps, X not having to attend school on Jewish holidays and a number of other orders.
The orders that the mother seeks are contained in a document prepared by her lawyer entitled “Proposed Orders”, which is reproduced in the second schedule. This is a particularly helpful document because it identifies, by reference to each discrete order, whether the father agrees or disagrees with the orders she seeks. In any event she seeks an order for sole parental responsibility and that the children spend time with the father each alternate weekend from 6:45pm on Friday until 7:30pm on Sunday, as well as school holidays. The mother has a slightly different proposal in relation to Jewish holidays which provides to the father some, but not all of the orthodox Jewish diaspora festivals. In relation to schooling issues there are relatively minor differences about contribution towards costs and transport and changeover. Insofar as the adjudication of this discrete aspect of the case depends on findings in relation to finances, this will be dealt with in a separate judgment, even though orders will be made here.
The children were represented by an Independent Children’s Lawyer. The Independent Children’s Lawyer’s proposal is contained in a document entitled “Amended Minute of Orders sought by Independent Children’s Lawyer” which is reproduced in the third schedule to these reasons. The Independent Children’s Lawyer proposed equal shared parental responsibility, the children live with the mother and spend time with their father each alternate weekend from after school on Friday until before school on Monday and half the school holidays except in relation to the Christmas school holidays when the father will have one week. The Independent Children’s Lawyer explained, in the Minute of Order, that he did not support orders for the father to spend time on Jewish holidays but that, if the Court considered such was in the best interests of the children, it should be limited to certain specified festivals. There are a number of other slight differences between the proposals of the Independent Children’s Lawyer, as compared to the parents.
Accordingly, the issues for the Court to determine include parental responsibility, where the children should live/how much time they should spend with each parent, and a number of incidental issues.
The Evidence
In the father’s case he relied on his affidavits of 10 December 2013, 13 June 2013 and 8 July 2013. He was cross-examined at length. It is significant to note, however, that the father led no evidence from his current wife, a matter which assumes considerable significance as will be discussed below.
In the mother’s case she relied on her affidavit of 24 June 2013. In addition, her affidavits filed 27 October 2011 and 29 June 2013, which were not read in her case, were nonetheless the subject of cross‑examination by the father and thus had to be referred to and considered by the Court. She was extensively cross-examined.
The only evidence in the Independent Children’s Lawyer’s case is a Family Report prepared by Family Consultant Ms K, dated 14 May 2012, and released on that date. Ms K was cross-examined.
The Court ordered the parties to file written submissions. After 6 days of Court time, this Court was not prepared to allow even more time for oral submissions to be made. Each party filed written submissions. Consistent with much of his written evidence, the father’s submissions were voluminous, unnecessarily detailed, often irrelevant, and sometimes purported to introduce new evidence, or new proposals, that the Court has ignored because of the unfairness to the other parties if it were to take into account.
Outline of these Reasons
The applicable law will be discussed in the next section of these reasons. The focus will then turn to the Family Report, and the evidence given by the Family Consultant. The rest of the reasons for judgment will adopt the format that follows Part VII of the Act and in particular the considerations under section 60CC and pursuant to section 65DAA. There will thereafter be a more holistic consideration of the orders to be made in the best interests of the children.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of 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.
(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).
(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.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(d) the likely effect of any changes in the child's circumstances, 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;
(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;
(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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are 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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islanderculture
(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a 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.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Family Report, and Evidence of the Family Consultant
The Family Report prepared by Ms K, Family Consultant, is dated 14 May 2012. Even though this report is almost two years old by reference to the date of these reasons for judgment, and was over a year old by the time the hearing started, it provides great insight into the parents, the children, and the issues before the Court. For example, the Family Consultant described the father at paragraph 14 of her report in the following terms:
Mr Spencer (aged 43 years) presented as thoughtful, intellectual and intense, sometimes seeming eccentric because he tends to rely so much on data. Mr Spencer wants “an honest 50% split” of the children’s time. He is representing himself in the proceedings. Mr Spencer believes that the Court should be looking at this case through “the lens” that the mother has “kidnapped” the children. He feels that he has been disadvantaged in Court proceedings, saying: “the Court is not listening to me” and “I feel under pressure to prove I’m not a freak”. He frequently referred to research and documents held on his iPad and phone during these interviews; “800 pages of financial documents” which he believes are “bulletproof evidence” of his claims. Mr Spencer acknowledged feeling agitated during the interview and this seemed to increase his data seeking behaviour, possibly to refute the accusations he perceives have been made against him and to support his case.
The Family Consultant was quite prescient. After spending six days in Court with the father her description of him as “thoughtful, intellectual and intense, sometimes seeming eccentric” is perfectly correct. His reliance on data was plainly obvious to the observer of this case. His iPad made frequent appearances during the hearing. However, at no stage did the Court observe the father to be agitated, even in cross‑examination. As it turns out, however, his perception of facts and events (e.g., “bullet proof evidence”) was quite flawed.
At paragraph 15 of the Family Report the Family Consultant notes:
Mr Spencer is passionate about his commitment to Judaism and maintaining an Orthodox Jewish lifestyle. He feels strongly that Ms Zaber’s relaxation in Jewish practices negatively impacts on the children. Unless he is able to spend a significant amount of time with the children, he believes, the strength of their religious identity will be weakened. He cites, in support of his argument, a lengthy documents called “Jewish Continuity” which stresses the importance of living a Jewish lifestyle in order to incorporate a strong Jewish identity. Factors which build strong Jewish identities include; most importantly – the home life, attending a Jewish day school and being involved in Jewish causes and activities.
The evidence before the Court, and its own observations, are entirely consistent with this. He appeared very genuine in the beliefs described above.
An important paragraph is paragraph 16 where the Family Consultant states:
Mr Spencer intends to set up a home with his fiancé near where the children live so that they can spend more time with him. He claims to have the benefit of flexible work hours which allow him to work from home, or that Ms R-on can be home to help care for the children. Mr Spencer acknowledged that the children had only met Ms R-on on a few occasions and, until mid way through this assessment, they did not know of his engagement or his hopes to have children with her. He said that X understands that he (Mr Spencer) wants a partner in life. Mr Spencer expressed his reluctance for Ms Zaber to be aware of these plans to “reduce the attack surface” although he realises the children, once they know, will discuss it with their mother.
As previously indicated in these reasons the father did in fact marry and they have set up house in (omitted). The significance of this passage is twofold. Firstly, the importance of evidence from his fiancée at the time, now wife, at the final hearing should have been plainly manifest as a result of this paragraph. Secondly, his motive for not providing evidence from his wife at the hearing is also apparent. At the final hearing the father did not lead evidence from his wife, a deliberate choice on his part. The Court was denied the opportunity to hear evidence from the person who, on the father’s proposal, the children would spend half of their lives with. The Court does not accept the submission from the father that the Independent Children’s Lawyer could have called his wife to give evidence. The father should have been on notice since the date of release of the Family Report that there was a serious gap in his evidence.
At paragraph 17 the father’s perceptions are examined by the Family Consultant:
Mr Spencer perceives that Ms Zaber is deliberately trying to control the amount of time he spends with the children in order to “bank the maximum child support possible”. He is very suspicious of her motives. Mr Spencer believes that Ms Zaber is attempting to retain “100%” of their assets, and that her main focus in their marriage was to attain a house. He now questions the genuineness of her conversion to Judaism. Mr Spencer accuses Ms Zaber of yelling irrationally during the marriage often about minor issues. He was agitated when discussing Ms Zaber’s accusations that he squandered money on a (country omitted) family and felt moved to defend his charitable integrity. Mr Spencer pulled up numerous photographs of a badly beaten woman on his iPad, saying “take a moment to look”. He said that he continues to feel a moral obligation to help this family. Mr Spencer seems affronted by what he perceives to be Ms Zaber’s abusive communication with him when he attempts to be “calm and disciplined”.
The evidence before the Court includes a strong theme in the father’s case of his perception that the mother was aggressive, and was seeking to control the children’s relationship with him. His suspicion of her motives was, however, clearly matched by her suspicion of his motives.
At paragraph 19 there is an explanation of what might be considered an unusual aspect of the father’s proposal in relation to school holiday time:
Mr Spencer confirmed that he is only seeking weekend time with the children in their school holidays because “it makes sense” with Ms Zaber’s job that she is available for the children when he is only eligible for four weeks recreation leave a year. He believes that he receives no co-operation from Ms Zaber, citing as an example her refusal to grant him a Get unless she receives the house in settlement.
As it turns out the evidence suggests that the father’s proposal about weekend time in the school holidays was at least partly motivated by convenience for himself.
In relation to the mother the Family Consultant observes at paragraph 20:
Ms Zaber (aged 49 years) presented as focused and concerned about the children. She wants to ensure the children have a balanced lifestyle, although she consents to the children living an Orthodox Jewish lifestyle when they are with their father. Ms Zaber confesses to no longer providing a kosher household or “much Judaism”. She said that she was attracted to the Jewish faith alongside Mr Spencer because her family lived in (country omitted) and she found the sense of community appealing and liked the Jewish emphasis on the family unit. Ms Zaber said that keeping Shabbat is quite isolating for the children as they “can’t do anything on Saturday” until Shabbat is over. She said that the children sleep on Friday nights with the lights on and have to cover their faces to sleep.
The evidence also reflects the themes raised in this paragraph. The mother’s adherence to the Jewish faith was much more relaxed than the father’s thus creating potential conflicts for the children as manifested by issues such as Sabbath observation.
At paragraph 22, one of the complex issues in the property case is recognised as creating complexity in resolving parenting matters:
Ms Zaber reported longstanding conflict about relatively small issues. She said that the “final straw” was her realization that Mr Spencer was taking substantial amounts of money from their accounts because he was caught up in a “scam”, sending money to a (country omitted) woman. Ms Zaber believes that, in total, this amounted to around $200,000. She believes that Mr Spencer resents paying child support money to her, and this influences the kind of Parenting Orders he is seeking. There is longstanding discontent between the couple about financial issues. Ms Zaber hopes to be able to maintain the home in their property settlement.
The mother’s concerns are set out at paragraph 24:
Ms Zaber portrays herself as the parent who has always provided the children with a stable routine; preparing everything for school and the household’s meals, transporting the children and facilitating their out-of-school activities. She said that Mr Spencer usually works until 7 or 7.30pm, and even now is not able to leave work early once a fortnight to collect the children from school. She worries that he stays up late and sleeps in, so the children do the same in his home. She alleges that his excessive computer use means that he is not fully available to the children when they are with him. Ms Zaber believes that Mr Spencer is not able to provide proper supervision for the children even during their school holidays. She said that it is his opinion that, because she receives child support, she should be the parent who cares for the children during school holidays.
As it turns out, and after hearing the evidence for six days, the mother’s perception of herself as the one who provided a stable routine for the parents and who was the principal carer for the children is a correct one.
Almost the only reliable information about the father’s wife (fiancée at the time) is found at paragraph 25 of the Report:
Ms R (aged 42 years) presented as calm and quietly spoken. She concurred with Mr Spencer in keeping the identity of her country of birth private. Mr Spencer again explained that, in withholding this information, he wants to “reduce the attack surface” available to Ms Zaber. Ms R said that she came to Australia with her family as a teenager. She is a Permanent Resident and an Australian Citizen. Ms R currently lives with her brother and his daughter, and she said that she has nephews and nieces and is familiar with children.
This is hardly sufficient knowledge for the Court to be able to assess the nature of the children’s relationship with her, having regard to the father’s proposal for equal time which would, inevitably, bring them into significant contact with her.
The Family Consultant had met with the children, and observed their interaction with both parents. Both children are clearly impressive, intelligent and well socialised children who love both their mother and father. The closeness of the bond between X and Y was observed at several times during the observation by the Family Consultant, and openly acknowledged between the parents. The children were very insightful the Family Consultant noting as paragraph 31 that “they both agreed that, if their parents were interviewed together, there would likely be some conflict (a nuclear explosion).” This was, indeed, an apt metaphor for the nature of the parents’ relationship. The mother demonstrated insight into the relevance of this to the orders the Court has to make. The father did not. He was focused on attributing blame.
X’s views are reported at paragraphs 32-35 of the report, as follows:
X spoke proudly about his school achievements and he sees himself as very clever. X often chose his words carefully, sometimes intellectualizing a potentially emotional issue. He tried to speak truthfully without hurting either parents’ feelings, but particularly his father’s. X acknowledged it was “strange” moving between households that have such different rules, but he was not willing to indicate what he might do when he is older, saying: “I don’t feel at this stage I have to make that decision yet”. X said that he knows his father wants him to attend (omitted) College to learn Hebrew and keep Shabbat. He did not mention the issue of equal time. X said that his father intends to move to (omitted) which would be better because they would not have to walk so far to the Synagogue. X spoke in quiet negative terms about his father’s “girlfriend”. He said that his father “always wants me to be polite to her and I don’t want to. She’s his girlfriend not mine!” Neither X nor Y appeared to have any idea of their father’s seriousness and intentions about Ms R.
When asked for input about his views on the arrangements, X said tactfully “I haven’t experienced enough to make that kind of decision!” He did say that keeping Shabbat is “hard on us as we’re only kids”. X admitted that it is fun on weekends at their mother’s home. He said, without complaint, that he had never participated in weekend sport because he had to attend the Synagogue on Saturdays.
X did admit at the end of his interview that the arrangement was “fine the way it is” and he could not see any other solution even though he knows his “Dad” is upset “because he only gets 2 days out of 14”. X said “it’s fine the way it is”. He is adamant that he does not want to be split from his sister. X said that he wants to stay at his mother’s home during the week; he could not see how his father can manage having them there during the week because he comes home late at night.
X gave the impression that his mother’s discipline of him and his sister is fair (“Mum doesn’t kick start the punishment. She gives three warnings and then watch out!”). He said that his father is more flexible “though not the most responsible person” because he lets them stay up really late. X said that he does not like this and prefers to get more sleep. He said that for a while he was getting bad headaches and vomiting but the situation is better now.
X clearly identifies a number of important issues, which should have been apparent to the father on reading the Report. These issues included the stress on the children in moving between such two different households, at least partly attributable to the father’s observation of the orthodox Jewish faith, the tension in X’s relationship with the father’s partner, his preference for the status quo, and his clear insight into the very different parenting styles practised by his parents. If the father was indeed aware of and insightful about these issues, he did not demonstrate this in his evidence.
In relation to Y, the Family Consultant noted at paragraphs 38 and 39:
At the Court, Y presented as gentle, articulate, open and demonstrative. She seemed self contained yet she asked several times where her brother and mother were. Y, too, seemed perfectly at ease with her Jewish practices and lifestyle. She said, though, that she found it easier not keeping kosher at her mother’s home because “you don’t have to worry as much” about what you eat. Y volunteered that she is not fond of her father’s girlfriend. She said that it is hypocritical of her father to have a non-Jewish girlfriend “when he’s always saying to me ‘Marry a Jewish boy!’ and X ‘Marry a Jewish girl!’” Y said “Dad’s always trying to make me sit on her lap but I don’t want to!”
Y seemed to be aware of financial issues such as whether the house will need to be sold, coming from the perspective of both parents. She said “I find myself quite worried about the selling the house thing”. Y agreed that if her “Dad” lived closer to them they could go to school from his home. She said “Dad’s always going on about half half but I’m not sure what the half half thing is”. Y said that she is very worried that the Federal Magistrate might split her and X up. She said “I don’t want that”.
It is interesting to note how similar the themes are which emerge from these paragraphs, from Y’s perspective. There is also more than hint that this young girl knew far too much about the matters in dispute between her parents.
The observation between the children and the parents is recorded at paragraph 40:
When observed with their parents, both X and Y stayed close together and supported each other. X patiently explained things to Y. They tended to walk holding hands in the corridor or as they were leaving. Y was particularly demonstrative towards her mother; sitting on her lap, hugging her, leaning her head on her mother’s shoulder. Ms Zaber was educative and positive in her manner towards the children and responded warmly to their affectionate overtures. Y also climbed on her father’s lap when she greeted him and both children clearly responded warmly to him. Mr Spencer seemed ill at ease in the observation which is common for parents being observed in a formal setting. He seemed, however, somewhat preoccupied with the report process and had to be gently redirected to engage with the children. Mr Spencer made a humorous, yet critical comment about Ms Zaber to the children. Overall the children loved interacting with him and there was much fun and laughter.
The Family Consultant’s evaluation commences from paragraph 41. She notes the complexity in the dispute, the many unresolved issues between the parents, the significant level of distrust around financial issues, and the embroilment of the children in these matters. Notwithstanding this, the Family Consultant found the children to be “both charming, well behaved, talented children who love and respect both their parents.” (Paragraph 42). The children own a strong Jewish identity but have now experienced a taste of relaxation of this lifestyle in their mother’s more secular home. This experience, for X, will be exacerbated by his now attending a state selective high school which will involve making non Jewish friends.
On the issue of religious observance the Family Consultant believed that both parents’ proposals satisfied the religious needs of the children, and that this should not necessarily be a primary determinant in deciding what time the children spend with each parent: paragraph 43.
At paragraph 44 the Family Consultant openly states that the father “has unrealistic expectations about (his partner’s) relationship with the children.” The Family Consultant described the father’s approach to this issue as a “tactical, intellectual perspective rather than a child focused approach.” That is an observation that is completely consistent with the Court’s own general impression of the father, formed over six days in Court. It is most regrettable, from the Court’s perspective, that even with this very clear indication from the Family Consultant about the importance of leading evidence from his wife, he chose not to do so. This leaves a huge gap in his case that really could not be filled in any other way. The Family Consultant suggested that the children’s reports were consistent with the mother’s claim of being the parent primarily responsible for the care of them: paragraph 45. The mother’s strength was in her pragmatic and practical style, whereas the father’s appeared more philosophical and less concerned about interests not related to religion.
The Family Consultant’s recommendation about equal time is unequivocal: “an equal time arrangement, for this family, seems impractical and unadvisable at this stage. It would meet Mr Spencer’s need for fairness, but not the children’s need for stability.” As it turns out, and with the benefit of six days of evidence, the Family Consultant’s recommendation is clearly borne out by the evidence. Regrettably, her observation that the husband was driven by concepts of fairness rather than stability for the children is also completely borne out by the evidence. It is most regrettable for these children that their father did not take on board these observations made by a neutral expert. As will be seen from his cross-examination of her, some of his reasons for not doing so become apparent.
The Family Consultant recommended an alternate weekend arrangement that gave the children a balance between the more orthodox practices of their father, and the more relaxed practices of their mother.
Importantly, the Family Consultant was confident that the conclusion of this litigation, and the disengagement from conflict, may well contribute to an improvement in the capacity of the parents to communicate and co-parent.
Her recommendations are contained at paragraphs 48 to 56 inclusive:
It is recommended that the parents have Equal Shared Parental Responsibility for X and Y.
It is recommended that Y continues to attend (omitted) College, subject to an agreement as to the payment of her school fees.
It is recommended that the children spend time with their father every second weekend from after school on Friday until 6pm on Sunday.
It is recommended that, if the father’s weekend falls on a public holiday, he has the children with him for the extra day.
It is recommended that, if the father lives in the (omitted) area, the children spend time with him every second weekend from after school on Friday until before school on Monday.
It is recommended that the children spend time with their father in school holidays from 6pm Thursday until 6pm Sunday with some provision for this to cease if the mother gives notice that she wishes to go away with the children.
It is recommended that the children to spend time with their father (especially if he lives in the (omitted) area) on all significant dates on the Jewish calendar.
It is recommended that neither parent discuss the proceedings or this report with the children.
It is recommended that the parents attend suitable post separation counselling to improve their parental communication. The parents may wish to use the services of Jewish Care (omitted) or other community resources.
By the time the Family Consultant was cross-examined on the first day of this hearing, 10 July 2013, over a year had elapsed since her Report. Nonetheless, she had the benefit of all the material that the parents relied on before the Court. Counsel for the Independent Children’s Lawyer specifically pointed the Family Consultant to some of the more significant changes since the date of the Report. For example, that the father had now married and had relocated to (omitted). The Family Consultant commented that whilst geographical proximity could enhance shared parenting, her recommendations remained unchanged. She was clearly concerned about the change in the mother’s proposal to sole parental responsibility. She was acutely conscious of the communication difficulties experienced by the parents but remained optimistic that the cessation of the litigation may well improve the situation. She acknowledged there was a risk, however, that the parents would not change. It was clear she still preferred equal shared parental responsibility.
When given the opportunity to explain why alternate weekend time with the father was better than every weekend she thought that in the context of this case the fewer movements of the children between households, the better it would be for them. Moreover, because of the complex issues, contact changeovers should be facilitated at school.
When asked about the capacity of each parent to respond sensitively to the needs of the children the Family Consultant observed that whilst both parents seem to be consumed with the dispute the father’s consumption was greater than that of the mother’s which thus led to his being less attuned to the needs of the children. She was concerned that even if the father had the benefit of more time with the children he would not necessarily be either physically or emotionally available for them, which would be most disappointing for the children. She equally recognised the disadvantages to the children of less time.
Counsel for the mother took the Family Consultant to a number of examples, often drawn from the father’s own evidence, of how he has inappropriately involved the children in the litigation. Two examples of the father’s own admissions in this regard will suffice for present purposes. At paragraph 620 of his affidavit sworn 13 June 2013 he deposes “I’ve told the children just enough to prevent them from believing that everything will go the mother’s way …” At paragraph 704 he deposes: “What I actually told the children was …” in the context of their imminent meeting with the Family Consultant. Indeed, the inappropriateness of what he said cannot be appreciated unless his own evidence is set out in full. He said that what he actually told the children was: “It is not proper to tell you what to tell the counsellor. Like in a democracy, you don’t ask people what they vote. I don’t actually want to know because it puts you under immense pressure. But now is not the time to be intimidated, and coerced into doing what one parent wants over the other. Make sure you ask for what you want, and think very carefully about that. It is also confidential.”
This is the father’s own evidence. It is disconcerting at a number of levels. He clearly appeared to have no insight into the pressure that he was placing on the children by saying this. He appeared not to understand the manipulativeness involved in using concepts of intimidation and coercion, attributing it to what the mother was allegedly doing and saying, but clearly not to what he was doing and saying. The father’s lack of insight about his own actions is manifest by the fact that he was so open in disclosing this in his evidence.
After the Family Consultant was referred to this evidence she was asked whether this was an example of poor parenting. Her response was entirely apposite. She said words to the effect: “The desire of the father to right the wrongs he perceives were done to him is greater than his sensitivity to the needs of the children.” The Family Consultant described the father’s behaviour in this regard as “insensitive”. Regrettably, based on all the evidence, this does tend to minimise the lack of insight demonstrated. As it turns out, however, the father does not monopolise the lack of insight in this marriage.
Counsel for the mother valiantly sought to gain an acknowledgement from the Family Consultant that the benefits of equal shared parental responsibility were outweighed by the disadvantages and impracticality of the same. The Family Consultant remained resolute, both in her confidence that the end of the litigation would assist, together with some professional input, as well as opposed to the danger of sole parental responsibility removing one parent from the lives of the children.
The father, of course, cross-examined the Family Consultant. His view of the world, and specifically of this case, became apparent from his questioning. For example, one line of questioning was to the effect that the conflict had been manufactured and perpetuated by the mother in order to support her case for status quo. The Family Consultant would not have a bar of this proposition. She explained that, based on her experience, there was reciprocity in this conflict but that, in any event, the children’s experience of the conflict would be the same even if it was unilateral.
Another line of questioning was as to the possibility that the mother had deliberately misinformed the Family Consultant, a possibility that the Family Consultant acknowledged but which, having regard to all the evidence, is plainly not borne out.
She was taken to examples of the email communication between the parents, in order to demonstrate how the source of the conflict was the mother, and not the father. The Family Consultant explained that, based on her experience, the communication was rather tame, but she acknowledged that the father had tried to use calming language in the communication.
The father confronted the Family Consultant about why she was opposed to equal time, and her response was comprehensive and persuasive, referring not just to generalised notions of what was best for the children, but more specific considerations such as the relationship between the parents, their individual personalities, their respective parenting capacities and circumstances, let alone the children’s needs for stability and routine, all being matters strongly contra indicating equal time.
One line of questioning of the Family Consultant revealed that the father was most conscious of the implied criticism in the Report about how the father had handled the introduction of his fiancée (at the time) to the children. He suggested to the Family Consultant that the children already spend many hours with new people such as new teachers some of whom could be quite stern. He suggested it was a double standard that the children couldn’t spend a few hours with his partner who he regarded as “mild mannered”. The Family Consultant was very quick, and firm, to explain the very different scenarios of a child in a classroom for a finite period, and a new partner for the children’s father with all the issues, including complex loyalty issues, that emanate from that. What is interesting about this exchange is the father’s perception, rather than the Family Consultant’s unsurprising answer.
A further example of the father’s perception of events is found in questions that he asked the Family Consultant about the mother’s description of his wife, Ms R. He referred the Family Consultant to paragraphs 73 and 74 of the mother’s affidavit of 24 June 2013 in which she sets out, under the heading “The Children’s Views of Ms R” what the children have said to her about Ms R. The father described the mother’s comments about Ms R as being “toxic”, at paragraphs 73 and 74. There is no need to replicate those paragraphs in these reasons. The paragraphs appear to faithfully set out what the children said to the mother. Nowhere does the mother say anything that could be even faintly described as “toxic”. Indeed, as the Family Consultant explained, the mother doesn’t even say anything inappropriate about Ms R. The important thing, as the Family Consultant tried to explain in cross-examination, is the children’s experience of relating to Ms R and how it was not unusual for children to say things in different households that might appear to be contradictory. The significance of this evidence is twofold. Firstly, it again demonstrates the significance of the father leading evidence from his wife so that the Court could form its own impression about her. Secondly, however, it is another example of the evidence of how the father’s perception of events can sometimes be quite unique.
At the end of the day, and after having heard five days’ further evidence from the mother and father after the conclusion of the Family Consultant’s evidence, the Court concludes that there is absolutely no evidence that would justify the Family Consultant’s recommendations not being accepted, or that her evaluation was somehow defective. The Court accepts the Family Consultant’s evidence. So many of her observations of the parents were prescient, particularly as regards the father. The Court categorically rejects the father’s suggestion that the Family Consultant was biased.
Meaningful Relationship
This is not a significant consideration in this case. There is no proposal before the Court that would not deliver to the children the continuation of the existing meaningful relationship with both of their parents. These are mature children, with mature and secure relationships with both their mother and father. Whether the Court makes the orders as proposed by the mother, father or Independent Children’s Lawyer will not change this, on the available evidence.
Protecting the Children from Harm
Despite the fact that these children are exposed to, and have at times been caught up in the crossfire of the conflict their parents, there is no indication that they have been adversely affected by it. The Family Consultant did warn that if the conflict continued unabated, particularly after the conclusion of the litigation, there was a risk of future harm to the children, in an emotional sense. There is no other risk of harm to these children. To the extent that either parent either explicitly or implicitly sought to argue to the contrary, there was no evidence to support this.
The Views of the Children
The only objective evidence about the children’s views is found in the Family Report. As should be apparent from that evidence both children expressed the view that they were happy with the current arrangement, that they did not want to be separated from each other, and that they found it difficult at times having to maintain the Jewish religious observances required by their father. Both children expressed a measure of unhappiness about the father’s fiancée at the time, now his wife. There is no evidence to suggest that these views have changed. To the extent that either the mother or father sought to adduce evidence of what the children said to them, on the subject of their views, it is plainly unreliable.
On the available evidence, therefore, to make the orders proposed by the father would be plainly contrary to the children’s views. The children are both chronologically, and emotionally mature enough to have their views taken into account and afforded significant weight.
The Nature of the Children’s Relationships
X and Y are very fortunate to enjoy good relationships with each other and with each of their mother and father. The nature of their relationship with each parent is different, because of the different personalities, and parenting styles employed. The father’s religious observance means that they travel between two very different households, not just in a psychological sense but a physical one as well. This is amply demonstrated by the evidence of the Family Consultant and the Family Report.
The only other significant relationship that arises on the facts of this case is the relationship between the children and their father’s new wife. There is no doubt that this is a potentially important relationship for them. On the father’s proposal, it is inevitable that she will be substantially involved in their care. These reasons have already discussed the obvious need for the father to have led evidence from his wife, from her directly, but he chose not to do so. The Independent Children’s Lawyer submits, and the Court agrees, that there must remain a question about the children’s willingness to spend such a large proportion of their time in a household which includes her, should the father’s proposal be accepted. The absence of this important evidence makes it very difficult for the Court to make the orders that the father proposes.
Fulfilling Parental Obligations to Maintain the Child
There is no issue about this, on the evidence presented before the Court.
The Likely Effect of any Changes in the Children’s Circumstances
The orders proposed by the Independent Children’s Lawyer will result in a slight increase in the amount of time the children spend with their father during school terms, that is, from two nights a fortnight to three nights a fortnight, but with the reduction of one afternoon. The orders proposed by the mother will not result in any significant change. The orders proposed by the father will result in quite dramatic change in the lives of the children given that they will move from two nights a fortnight, to seven nights a fortnight during school terms. It is a change which, based on the evidence before the Court, the children do not desire. There might be other reasons why the change is contra indicated including the unknown relationship between the father’s new wife, and the children. Despite the parental conflict, Y and X present as quite resilient children and on the evidence before the Court would probably cope with the change in a physical and emotional sense. The more important question, to be resolved in these reasons for judgment, is whether any such change is in their best interests.
Issues of Practical Difficulty and Expense
There is no evidence before the Court to suggest that this consideration is relevant.
Parental Capacity
This particular consideration invites the Court to examine the capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs. The Independent Children’s Lawyer submitted, and the Court concurs, that there is no evidence to suggest that either parent is unable to provide adequately for the physical and material needs of the children. Indeed, the evidence suggests that the children are resilient and progressing well on all fronts including socially and academically. This is a credit to both parents but, it must be acknowledged, particularly the mother who has borne the brunt of this responsibility because she has had the primary care of them.
The Independent Children’s Lawyer submits, and the Court agrees, that the real issue is the capacity of these parents to provide for the children’s emotional needs. Before discussing the evidence and the Court’s concerns in this regard, it should be acknowledged that there is in overlap between a consideration of parental capacity to provide emotional needs, and a consideration of parental attitudes towards the children, and to the responsibilities of parenthood. It is therefore proposed to deal with both of these considerations, under the present heading.
An examination of these issues necessarily involves considering the personalities of both the mother and the father, their attitudes towards each other both as individuals and parents, and their capacity to cooperate, communicate and collaborate as parents. The extensive material filed by both parents, together with the lengthy periods of time they spent in the witness box, provide the Court with a more than adequate opportunity to make some observations about them.
The orders proposed by both the mother and the Independent Children’s Lawyer will mean that the children spend time with the father on a regular basis, they provide a stability of routines, whilst allowing sufficient time for them to continue to develop the already good relationship that they have with their father. By trying to achieve changeovers at school, the opportunities for misunderstanding and conflict are minimised. By having proscriptive orders, the same outcome is hopefully achieved.
Orders
The Court will make orders consistent with the proposal of the Independent Children’s Lawyer, in terms of the children’s time with their father. This will result in the children spending each alternate weekend from after school Friday, to before school Monday, with their father. It means all changeovers will be at school, thus hopefully reducing opportunities for parental conflict. It is a predictable and stable routine for the children that allows them to maximise the benefits of experiencing the different households and lifestyles of their mother and father. Monday morning gives to the father, if he so desires, a point of contact and interaction with the children’s schools. Each alternate weekend becomes, for the children, an opportunity to build a relationship with the father’s wife, but not a period that is so intolerably long that they could not cope with her if the relationship does not improve. The children will have the benefit of participating in an orthodox Jewish household when with their father, and a more relaxed Jewish observance when with their mother.
The Court accepts the Independent Children’s Lawyer’s proposal about school holidays in that it is again predictable, and gives the children more extended opportunities to engage with their father and his world, should he be prepared to take the time to do so.
The Court also accepts the Independent Children’s Lawyer’s proposal in relation to Jewish holidays noting, of course, that it is not the Independent Children’s Lawyer’s primary position that any such order should be made. In this case the father’s Jewish faith and observance is not only important to him but the children as well. In these circumstances making a specific order about Jewish holidays is in their best interests.
The Court also accepts the Independent Children’s Lawyer’s remaining proposed orders as being consistent with the evidence before the Court as to what is in the children’s best interests. Specifically the Court makes the orders in relation to Y continuing to attend (omitted) College at the father’s expense. The financial reasons for doing so are explained in the Court’s separate reasons for judgment pertaining to financial matters between the parents. There are obvious reasons for keeping Y at her current school, something that was initiated by the father, and something which he considers to be clearly very important.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 8 May 2014
Schedule One – Father’s Proposed Orders
Parenting Orders
That the Mother/Wife Ms Zaber and the Father/Husband Mr Spencer have equal shared parental responsibility for the children of the marriage: X born (omitted) 2000, and Y born (omitted) 2004.
That without limiting the parental responsibility of either parent pursuant to paragraph (1) of these orders, each parent keeps the other parent informed of and properly consults with the other with respect to any major long-term issues affecting the children. For the purposes of these orders, “major long-term issues” include:
a)The children’s education (both current and future);
b)The children’s religious and cultural upbringing;
c)The children’s health, including that except for emergencies, neither party shall take the children to any health professional without first informing the other;
d)Each party let the other party know if the children requires medical attention while in their care. The parties will advise each other within 24 hours of the child receiving medical attention;
e)The health of each party, including any issues which may impact on the ability of the Mother or Father to care for the children;
f)The names by which each of the children is known;
g)Changes to the children’s living arrangements that may make it more difficult for the children to live with a parent, including that all changes of address and telephone number shall be notified to the other parent within 7 days;
h)Generally, any matter regarding the children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
That both parties refrain from:
a)Corporal punishment of the children;
b)Severe psychological punishment or coercion of the children including that involving abusive language;
c)Denigrating the other parent in front of the children;
d)Undermining the cultural heritage of the children developed by the other party.
That beginning as soon as these orders are issued:
a)The children live with the father from 6pm Wednesday until 8am the following Wednesday (7 overnights) and each alternate week, and live with the father from 6pm Thursday until 9am Thursday (7 overnights) each other alternate week. i.e. overnights:
| Sun | Mon | Tues | Wed | Thur | Fri | Sat |
| Mother | M | M | Father | F | F | F |
| F | F | F | M | M | M | M |
| M | M | M | M | F | F | F |
| F | F | F | F | M | M | M |
b)The Mother will have the children on all public school holidays; except for the public school spring holidays plus one week (even years), autumn holidays plus one week (odd years) – when the father will have them. This will override (rather than interrupt) the regular calendar in item (a) during that time.
c)The Father will have the children on all (Orthodox Diaspora) Jewish holidays.
d)The Father will have Y on all (omitted) College non school days that do not coincide with public school holidays.
e)X will not be required to attend school on Jewish holidays that coincide with the public school calendar unless there is an exam that the Father is unable to reschedule.
f)X will be permitted to attend both a 5 and 10 day Jewish camp during the year, at the Father’s expense. Day will be reimbursed to the mother at the end of the next ‘live with’ block of time or as agreed between the partied in written communication.
g)The Father or Mother will have the children as otherwise agreed between the parties in written communication from time to time.
h)That transport to and from any time the children spend with the other parent shall be shared between the parties, with the Mother dropping off the children at the beginning of time spent with the Father and the Father returning the children at the end of the time the children spend with the Father.
i)That the Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him;
j)That the Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him;
k)That agreed upon medical expenses of the children be shared in a 50/50 manner with the children being listed on the Father’s insurer.
l)That the medical insurance of the children be shared in a 50/50 manner with reimbursements to occur not later than 3 months after incurring the expense.
m)That the Mother be wholly responsible for public school expenses of X, the uniforms of Y, and any extra-curricular activities she instigates.
Y is to continue schooling at (omitted) College transitioning into (omitted) High School.
X will be allowed to study Modern Hebrew for the HSC at (omitted) at the Father’s expense.
That both parties be permitted to travel overseas with the children provided that:
a)The party wishing to travel with the children provides no less than three [3] months written notice to the other parent including a copy of the itinerary and return airline flight details.
b)That the party wishing to travel with children provides to the other parent no less than three [3] months prior to the intended travel date a certificate of travel insurance which must include health insurance and repatriation.
c)That the party travelling with the children shall initiate a telephone call not less than 1 times per week between the children and the other parent.
d)The Father will be the Passport Custodian when the passports are not in use by the other party.
The Mother is restrained from taking the child to any counsellor, psychologist, psychiatrist, or mental health worker without the Father’s written agreement.
The Grandfather will be permitted holiday access to the children on condition:
a)Another adult must be present at all times.
b)There will be no racist views expressed in front of the children.
c)There will be no denigration of the Father in front of the children.
The Mother will allow arrangements for X's Bar Mitzvah:
a)The Father be permitted to pick him up from the Mother’s residence at 7pm and return him at 8.45pm on (omitted) College term time Tuesdays.
b)The Father will have custody for Saturday 19 October 2013.
Schedule Two – Mother’s Proposed Orders
Parenting Orders
| Proposed Order | Agreed/Not Agreed | Husband/ Father’s Comments |
| Parental Responsibility 1. The Mother shall have sole parental responsibility in relation to the children of the marriage namely X born (omitted) 2000 and Y born (omitted) 2004 (“the children”). | Not agreed | |
| 2. That the Mother shall, prior to making any decision that impacts upon the long term health, care and or welfare of the children consult with the Father and take any views that he expresses into consideration when making a decision. | Not agreed | |
| 3. That each of the parties shall have the sole responsibility for the day to day care, welfare and development of the children whilst the children are in their respective care. | Agreed | |
| Spend Time with Arrangements 4. That the children shall spend time with the Father as follows: a) On each alternate weekend from 6.45pm on Friday continuing until 7.30pm on Sunday. b) In the event the children’s time with the Father provided for in Order 4a falls on a long weekend that includes a Monday the children’s time with the Father shall conclude at 7.30pm on Monday. c) For two periods of not more than 7 continuous nights during school holiday periods each year at times to be agreed and if not agreed than; i) From 9.00am on the first Sunday of the June/July school holiday period continuing for a period of 7 nights and concluding at 7.30pm on the following Sunday; ii) From 9.00am on the first Sunday of each calendar year continuing for a period of 7 nights and concluding at 7.30pm on the following Sunday. | Not agreed | |
| 5. That the Mother is permitted to travel with the children during a school holiday and such travel to fall on an occasion when the children would otherwise spend time with the Father the Mother shall: a) Provide not less than 14 days’ notice to the Father of her intention to travel with the children; b) Provide the Father with the option to care for the children from 6.45pm on the first Friday after the children’s return from their travel with the Mother continuing until 7.30pm on Sunday. c) The Mother shall be permitted to so travel with the children during periods that the Father would otherwise spend time with the children in accordance with Order 4a hereof. | Not agreed | |
| 6. The children shall spend time with the parties at all other times as agreed between the parties in writing, which includes by email or SMS message. | Agreed | |
| 7. In the event the children have a presentation day, photo day, final or grand final or some other event of significance in relation to any extra-curricular activity the children participate in at a time when the children are to spend time with the Father under these Orders the Father shall permit the Mother to collect the children from his residence and take the child to that event, on the condition that the child is returned to the Father immediately following the event. | Not agreed | |
| 8. That the children shall otherwise live with the Mother. | Not agreed | |
| Special Days 9. That notwithstanding any other Order herein the children shall spend time with the parties as follows: a) With the Mother on Mother’s Day each year from 5.00pm on the day before Mother’s Day continuing until 7.30pm on Mother’s Day; b) With the Father on Father’s Day each year from 5.00pm on the day before Father’s Day continuing until 7.30pm on Father’s Day; c) With the Mother each year from 5.00pm on 24 December continuing until 7.30pm on 26 December; d) With the Father on the following Jewish holidays each year: i) From half an hour prior to sunset on the first night of Passover continuing until 2 hours after sunset the following day; ii) From half an hour prior to sunset on Jewish New Year continuing until 2 hours after sunset the following day; iii) From half an hour prior to sunset on Yom Kippur continuing until 2 hours after sunset the following day; iv) The Father shall be responsible for collecting the children at the commencement of time and the Mother shall collect the children from the Father’s residence at the conclusion of time. e) With each parent on their respective birthdays each year as follows: i) In the event the birthday falls on a day when the children are at school then from the conclusion of school until 9.30pm; ii) In the event the birthday falls on a day when the children are not at school then from 10.00am until 9.30pm. iii) The parent who is having the birthday shall be responsible for collecting the children at the commencement of time and delivering the children at the conclusion of time. f) The children shall spend time with the parent whom they ordinarily live with as provided in these Orders on the day of their birthday unless otherwise agreed between the parties in writing. | Agreed in part Agreed Not required by Husband Not agreed Not agreed Agreed Agreed Agreed Agreed | Husband requests all Orthodox Jewish Diaspora festivals during which one may not work If Jewish holidays arrangements take precedent |
| Schooling 10. That X shall continue his schooling at (omitted) High School unless otherwise agreed between the parties in writing. | Agreed | |
| 11. That Y shall continue to attend (omitted) College for both primary and secondary schooling on the following conditions: a) That the Father shall pay, as and when they fall due all school fees and tuition fees including for Y; b) That the Father shall pay for all compulsory excursions, school fees associated with extra-curricular activities offered by and conducted at the school and uniforms for Y; c) That from the date of these Orders and continuing until Y commences Year 7 in 2016 the Father shall care for Y on each (omitted) College pupil free day or school holiday that does not coincide with public school holiday days or public school pupil free days and for that purpose the Father shall collect Y from the Mother’s residence at 6.00pm on the evening prior to the (omitted) College pupil free day or school holiday continuing until 7.30pm the following day. | Agreed Agreed Not agreed Not agreed | Non-compulsory activities and uniforms will be paid by Ms Zaber The mother shall transport Y to the Father, the Father will return the children to the Mother. If these days coincide with (omitted) staff development day, X will reside with the Father also. |
| 12. In the event that the Father does not comply with the conditions stated in Order 11 herein the Mother is permitted to enrol Y in a NSW public school of her choice. | Not agreed | Ms Zaber is free to seek an enforcement order however I will not do this unilaterally on her personal interpretation of the orders |
| Delivery of the Children 13. That from the first Sunday in April continuing until the first Sunday in October each year the Mother shall deliver the children to the Father’s residence at the commencement of time and the Father shall deliver the children to the Mother’s residence at the conclusion of time. | Not agreed | |
| 14. At all other times other than as stated in these Orders the Father shall collect the children from the Mother’s residence at the commencement of time and shall deliver the children to the Mother’s residence at the conclusion of the children’s time with their Father. | Not agreed | |
| 15. In the event the Father moves away from the (omitted) he shall be responsible for both collection and delivery of the children to the Mother. | Not agreed | |
| International Travel and Passports 16. That should either parent wish to take the children overseas they shall be permitted to remove the children from the Commonwealth of Australia on the condition that: a) The time the children travel overseas falls within a period that the children spend time with the parent under these Orders, unless otherwise agreed between the parties; b) The parent proposing the overseas travel provides to the other parent at least 4 weeks’ notice in writing of their intention for such overseas travel with the children which shall include a proposed itinerary so far as practicable and copies of return airfares; c) That within 14 days of being notified of the other parent’s intention to travel with the children the non-travelling parent will provide the children’s Australian passports to the travelling parent if they are not already in that party’s possession; d) The parent proposing the overseas travel shall be responsible for all expenses for the children relating to and during the overseas travel period; e) The parent proposing the overseas travel shall provide to the other parent at least 14 days prior to departure, contact details for the children whilst overseas including telephone numbers and addresses where they will be staying as far as practicable. | Agreed Not agreed Not agreed Agreed Agreed | 3 Months’ notice and repatriation insurance After showing the repatriation insurance this will occur |
| 17. That forthwith upon the making of these Orders the Father shall sign the passport application to allow X to obtain an Australian passport. | Not agreed | This will occur once the Mother has accepted a “Gett” |
| 18. The Father shall within 48 hours of being provided with any passport application for either child by the Mother do all acts and things and sign all documents necessary to return the signed documents to the Mother and to ensure that the children have valid Australian passports at all times. | Not agreed | The Father seeks 3 weeks to sign the relevant documents |
| 19. The parties shall share the costs of renewing the children’s passports equally. | Partially agreed | The Father seeks a period of 3 months to repay the Mother |
| Communication and Emergencies 20. That each child may communicate with their parent’s at such times as the child so wishes and the parties shall facilitate and encourage such communication by telephone, in writing and by other electronic means including but not limited to email. | Agreed | |
| 21. In the event of any emergency, including serious illness or significant injury to either of the children or any other matter affecting the children’s safety, the parent with the care of the children is to notify the other parent immediately. | Agreed | |
| 22. That each party shall keep the other updated of any medication prescribed for each child. | Agreed | |
| 23. That each party shall if requested by the other parent, notify the other parent of the name, address and telephone number of the children’s treating doctor and sign any authority the other parent may provide to authorise that doctor in writing to release to the other parent particulars of the children’s health or treatment at any time requested by him or her. | Agreed | The Father seeks that this include mental health practitioners |
| 24. That each party shall notify the other parent if a child/children is/are going to be absent from school for a period in excess of 2 days. | Agreed | |
| 25. That each party notify the other, not more than 24 hours after any change to their address and/or landline and/or mobile telephone numbers and/or their usual contact email address. | Agreed | |
| 26. That each of the parent’s be and are hereby restrained by injunction from speaking to the children or to any other person in the children’s hearing in derogatory terms about the other parent or about the parent’s respective partners. | Agreed |
Schedule Three – Independent Children’s Lawyer’s Proposed Orders
Parental Responsibility
That the mother and the father have equal shared parental responsibility for the children X born (omitted) 2000 (“X”) and Y born (omitted) 2004 (“Y”).
Live With
That the children live with the mother.
Spend Time With
That the children spend time with the father as follows:
(a)during New South Wales Government school terms, each alternate weekend from after school on Friday until before school on Monday (or, in the event that the Monday is not a school day, until before school on Tuesday), with the cycle of alternate weekends to recommence on the first weekend of each school term.
(b)during the New South Wales Government school holiday periods at the end of terms 1, 2 and 3, unless the mother and the father otherwise agree in writing (being by email or letter), from:
(i)after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period; or
(ii)6:00 pm on the second Saturday of the school holiday period until before school on the first day of the new school term,
provided that the father gives the mother not less than four (4) weeks notice in writing (being by email or letter) of which week (if any) he intends to have the children spend time with him during such school holiday period;
(c)during the New South Wales Christmas school holiday period, unless otherwise agreed in writing (being by email or letter), for one week (7 nights) in either:
(i)the first two weeks of the school holiday period; or
(ii)the last two weeks of the school holiday period,
provided that, by the end of Week 3 of Term 4, the father gives the mother notice in writing (being by email or letter) of the date and time on which the children’s week with him will commence,
That the children spend additional time with the father as follows:
(a)THE ICL DOES NOT SUPPORT THIS HOWEVER, IF THE COURT CONSIDERS THIS TO BE IN THE CHILDREN’S BEST INTERESTS
on the following Jewish holidays, the dates of which shall be as set out on the website (omitted) (or such alternative calendar as the mother and the father may agree to in writing (being by email or letter)) and noting that the orders are intended to allow the children to be with the father at sunset on the day before the dates set out in such website:
(i)during Pesach (Passover), as follows:
1. from after school (or from 4:00 pm if not a school day) on the day before the first day of Pesach until before school (or 9:00 am if not a school day) three days later; and
2. from after school (or from 4:00 pm if not a school day) on the sixth day of Pesach until before school (or 9:00 am if not a school day) three days later;
(ii)during Shavuot (Festival of Weeks), as follows:
1. from after school (or from 4:00 pm if not a school day) on the day before the first day of Shavuot until before school (or 9:00 am if not a school day) three days later;
(iii)during Rosh Hashana (Jewish New Year), as follows
1. from after school (or from 4:00 pm if not a school day) on the day before the first day of Rosh Hashana until before school (or 9:00 am if not a school day) three days later;
(iv)during Yom Kippur (Day of Atonement) as follows:
1. from after school (or from 4:00 pm if not a school day) on the day before the first day of Yom Kippur until before school (or 9:00 am if not a school day) two days later;
(v)during Sukkot (Feast of Tabernacles) as follows:
1. from after school (or from 4:00 pm if not a school day) on the day before the first day of Sukkot until before school (or 9:00 am if not a school day) three days later;
(vi)during Shmini Atzeret (Eighth Day of Assembly) and Simchat Torah (Day of Celebrating the Torah)as follows:
1. from after school (or from 4:00 pm if not a school day) on the day before Shmini Atzeret until before school (or 9:00 am if not a school day) three days later,
with the father to:
(vii)take all reasonable steps to ensure that the children attend school on such days if they are required to do so by their respective schools
(viii)make appropriate arrangements for the children to travel from their respective schools to that father’s home at the conclusion of the school day or collect the children from the mother’s home at the beginning of this time (if not a school day); and
(ix)make appropriate arrangements for the children arrive at their respective schools in time for the commencement of the school day or return them to the mother’s home at the end of this time (if not a school day);
(b)on the Father's Day weekend from 7:00 pm on Saturday until 7:00 pm on Sunday, with the father to be responsible for:
(i)collecting the children from the mother’s residence at the beginning of this time; and
(ii)returning them to the mother’s home at the end of this time; and
(c)at such other times as the mother and the father may agree to in writing (being by email or letter), provided that:
(i)any such agreement must specify whether the children are to spend alternative time(s) with the mother in lieu of the time missed; and
(ii)if the children are to spend alternative time(s) with the mother in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the mother and what the arrangements for changeover will be.
That Y spend additional time with the father on all (omitted) College, pupil free days and school holidays which do not coincide with New South Wales Government school pupil free days and school holidays (“(omitted) College non-school days”), from after school (or 4:00 pm if not a school day) on the day before such (omitted) College non-school day(s) until before school (or 9:00 am if not a school day) on the day after the (omitted) College non-school day(s).
That the children's time with the father pursuant to Orders 3, 4, 5 and 6 above shall be suspended:
(a)on each Mothers' Day weekend, from 7:00 pm on Saturday until 7:00 pm on Sunday, with the mother to be responsible for:
(i)collecting the children from the father’s residence at the beginning of this time; and
(ii)returning them to the father’s home at the end of this time;
(b)each Christmas from 4:00 pm on Christmas Eve until 7:00 pm on Christmas Day, with the mother to be responsible for:
(i)collecting the children from the father’s residence at the beginning of this time; and
(ii)returning them to the father’s home at the end of this time; and
(c)at such other times as the mother and the father may agree to in writing (being by email or letter), provided that:
(i)any such agreement must specify whether the children are to spend alternative time(s) with the father in lieu of the time missed; and
(ii)if the children are to spend alternative time(s) with the father in lieu of the time missed, the agreement must specify what alternative time(s) the children are to spend with the father and what the arrangements for changeover will be.
That for the purposes of these Orders, unless otherwise provided for in these orders or otherwise agreed between the father and the mother in writing (being by email or letter), changeovers shall occur as follows:
(a)for changeovers which occur at the start of a school day, the parent with whom the children have been living or spending time prior to the time of changeover shall make appropriate arrangements for the children to arrive at their respective schools in time for the commencement of the school day;
(b)for changeovers that occur at the end of the school day, the parent with whom the children will be living or spending time after the time of changeover shall make appropriate arrangements for the children to travel from their respective schools to that parent’s home at the conclusion of the school day;
(c)for changeovers that occur at other times:
(i)the father shall be responsible for collecting the children from the mother’s home at the commencement of the time they are to spend with the father; and
(ii)the mother shall be responsible for collecting the children from the father’s home at the end of the time they are spending with him.
Communicate With
The mother and the father ensure the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.
Health
That the mother and the father shall:
(a)provide each other with and keep each other advised of the names and addresses of the children’s treating doctors;
(b)inform each other in writing (being by email or letter) as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and
(c)ensure that the other parent is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the receipt of the report.
That both the father and mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and
(b)discuss the children’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours that the children are to spend with the father.
That the father shall ensure that the mother is notified as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
Education
That, unless the mother and the father otherwise agree in writing (being by email or letter), Y continue to attend (omitted) College for both primary and secondary schooling, provided that the father:
(a)accepts responsibility for and pays for all (omitted) College fees as per (omitted) College's Term Fee Statements in respect of Y’s attendance at (omitted) College each year and enters into a contract with (omitted) College to that effect by no later than one week before the end of (omitted) College's Term 4 each year; and
(b)provides the mother with a copy of the above contract by the end of (omitted) College's Term 4.
That, unless the mother and the father otherwise agree in writing (being by email or letter), X continue to attend (omitted) High School.
That the mother and the father notify each other in the event that either of the children will be or has been absent from school fore more than two consecutive school days.
Contact Details
That the mother and the father notify each other of any change in telephone contact numbers and email address, such notification to be made in writing (being by email or letter) and within twenty-four (24) hours of any change.
That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing (being by email or letter) and no less than fourteen (14) days prior to the proposed change.
Overseas Travel
That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the mother, at the mother’s expense, in every twelve month period commencing 1 December of each even numbered year (e.g. between 1 December 2014 and 30 November 2015), provided that:
(a)the mother provides the father with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;
(b)the period of absence from Australia does not exceed four (4) weeks; and
(c)the mother provides the father with a copy of:
(i)the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;
(ii)a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and
(iii)in the event that the period of travel will result in either of the children having to miss more than three (3) school days, a copy of a letter or other document evidencing that the relevant school has approved the child’s absence from school during the overseas travel.
That, notwithstanding any other Order, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the children be permitted to travel overseas with the father, at the father’s expense, in every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016), provided that:
(a)the father provides the mother with no less than two (2) months notice of the proposed travel, including details of the approximate departure and return dates, the destination(s), the method of travel and the purpose of the travel;
(b)the period of absence from Australia does not exceed four (4) weeks; and
(c)the father provides the mother with a copy of:
(i)the actual travel itinerary, including departure dates, destination, arrival dates and flight numbers;
(ii)a certificate of travel insurance, which includes health cover, which covers the children for the relevant destination(s) and period of travel; and
(iii)in the event that the period of travel will result in either of the children having to miss more than three (3) school days, a copy of a letter or other document evidencing that the relevant school has approved the child’s absence from school during the overseas travel.
That, unless otherwise agreed to by the mother and the father in writing (being by email or letter), the Mother and the Father shall:
(a)take all steps necessary to ensure that each of the children has a current, valid Australian passport at all times, the cost of obtaining or renewing such passports to be shared equally by the mother and the father;
(b)ensure that the children’s current passports are held by:
(i)the mother in 2014 during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2014 and 30 November 2015); and
(ii)by the father during every twelve month period commencing 1 December of each odd numbered year (e.g. between 1 December 2015 and 30 November 2016).
Restraints and Injunctions
That the Mother and the Father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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