Symon & Whiteley
[2024] FedCFamC2F 761
•19 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Symon & Whiteley [2024] FedCFamC2F 761
File number(s): CAC 2061 of 2021 Judgment of: JUDGE MANSFIELD Date of judgment: 19 June 2024 Catchwords: FAMILY LAW – Child-related proceedings – Where previous final orders made – Where parents unable to agree on education issues – Where both parents agree joint decision making is not working – Parallel parenting arrangements. Legislation: Family Law Act 1975 (Cth), ss 4(1), 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65AA, 65D(1), 65DAC Cases cited: Rice v Asplund (1979) FLC 90-725
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 110 Date of last submission/s: 24 April 2024 Dates of hearing: 22-24 April 2024 Place: Canberra Solicitor for the Applicant: Self-represented Solicitor for the Respondent: Self-represented ORDERS
CAC 2061 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SYMON
Applicant
AND: MS WHITELEY
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
19 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The father is to have sole parental responsibility with respect to major long-term issues about the health and education for the children X, born in 2010; and Y, born in 2012.
3.In the exercise of sole parental responsibility pursuant to the preceding Order:
(a)The father is to provide the mother with not less than 14 days’ written notice of any major long-term decision he intends to make for either or both of the children;
(b)Within 7 days of receipt of the notice, the mother may provide the father with a written response outlining her views as to the decision to be made; and
(c)The father is to take the mother’s views into account when making his decision and shall, as soon as practicable after the decision is made, notify the mother of the decision in writing.
Living and Time Arrangements
4.The time that the children spend with their parents is as agreed between the parents in writing and in the absence of agreement in accordance with the balance of these orders.
5.The children’s home address will be with the father but they are to live in a shared care, week-about arrangement.
6.Changeovers are to occur at the commencement of school or 9:00am each Monday, or the commencement of school or 9:00am each Tuesday if the preceding Monday is a public holiday.
7.The children will transition to the above arrangement in accordance with the following:
(a)From the date of these orders until the end of 2024 school term 2:
(i)Pursuant to the existing arrangements provided for in the Orders of 5 May 2016;
(b)For the 2024 school term 2 holiday period:
(i)Pursuant to the existing arrangements provided for in the Orders of 5 May 2016 which provide for half of the time with each parent with the commencement to coincide with the time the children would ordinarily spend with their father.
(c)For all of school term 3:
(i)With the father, in each alternate week for six nights from after school or 4:00pm Tuesday until the commencement of school or 9:00am on the following Monday.
(d)For the 2024 school term 3 holiday period:
(i)Pursuant to the existing arrangements provided for in the Orders of 5 May 2016 which provide for half of the time with each parent with the commencement to coincide with the time the children would ordinarily spend with their father.
(e)For all of school term 4:
(i)With the father, in each alternate week for seven nights from and to the commencement of school or 9:00am each Monday.
8.For the 2024/25 long summer holiday period and for each long summer holiday period thereafter:
(a)In even numbered years, with the father for all of the first half (defined as 9:00am on the day half-way between the conclusion of the last day of school attendance and the commencement of school on the first day of the next school term plus one if need be); and
(b)In even numbered years, with the mother for all of the second half; and
(c)In odd numbered years, with the mother for all of the first half; and
(d)In odd numbered years, with the father for all of the second half; and
(e)Noting that the above times includes all times over the Christmas period.
9.The arrangements per Orders 5 and 6 will start at the commencement of school term 1 2025 and will apply to all school terms and mid-year school holiday periods thereafter.
10.Notwithstanding any other Order, the children will spend time:
(a)With the mother from 9:00am on Mother’s Day until 9:00am or the commencement of school on the following Monday; and
(b)With the father from 9:00am on Father’s Day until 9:00am or the commencement of school on the following Monday.
11.Unless otherwise agreed, wherever changeovers do not occur by way of the commencement or conclusion of a school day, changeovers are to occur by collection of the children from the residence of the parent whose time with the children is ending.
Counselling
12.The father is to ensure that Y engages with a psychologist, counsellor or therapist and is to remain engaged for as long at the counsellor or therapist recommends in relation to Y’s transition to living with the father.
13.The counsellor/therapist is requested to provide reports or letters to both parents in relation to Y’s progress and to make recommendations to both parents on what strategies or steps they can engage in to support Y.
14.The father is permitted to provide to any counsellor or therapist a copy of: the Family Report of Ms C dated 27 July 2023; these Orders; and, the Reasons for Judgment.
15.The costs of Y’s therapy are to be shared equally in relation to Y and each parent is responsible for the costs of any individual sessions.
Communication
16.Each parent shall allow the children to have telephone or electronic communication with the other parent at all reasonable times the children may wish to do so.
17.The parents will communicate with each other about issues relating to the children via email, or as may otherwise be agreed between the parents, with such communication to be at all times child-focussed and respectful.
18.Each parent will contact the other as soon as practicable in the event of a serious illness or injury of either child.
Information Sharing
19.Each parent is to keep the other updated as to any medical treatment or allied health treatment provider attended upon by either child from time to time.
20.Each parent is permitted to provide a copy of these orders to any medical or allied health treatment provider who provides treatment to the children.
21.These orders act as authority for either parent to obtain information and documentation about either child from any medical treatment or allied health treatment provider who sees or treats the children from time to time.
22.These orders act as authority for either parent to obtain information and documentation about either child from any school or extra-curricular body that the children may attend from time to time.
Injunctions
23.During the time the children are with each parent, that parent shall:
(a)Speak of the other parent, any partner and family members respectfully; and
(b)Not denigrate or insult the other parent, any partner or other family members in the presence or hearing of the children and use their best endeavours to ensure that no one else does including removing the children from such exposure if need be.
Passports and International travel
24.For the purpose of obtaining or renewing an Australian travel document, the father has sole parental responsibility and the consent of the mother is not required.
25.Each parent is permitted to take or send either child from Australia to a place outside Australia.
Independent Children’s Lawyer
26.Within 28 days of the date of these Orders, or as soon as practicable thereafter, the Independent Children’s Lawyer is to meet with the children in order to explain the effect of the Orders made by the court in relation to parenting matters and having met with the children pursuant to this Order, the appointment of the ICL is discharged.
Other
27.All parenting applications otherwise are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
The parties commenced cohabitation in September 2003. X was born in 2010. Y was born in 2012. The parties separated under the same roof in or about May 2014 and the father moved out in late August 2014. X was four years old and Y was almost two. The children’s time with the father increased steadily from day time only at the mother’s home to overnights pursuant to Court orders.
On 5 May 2016, when X was 6 and Y was 3 years old, in Symon & Whiteley [2016] FCCA 3501 the Court made final orders following a defended hearing including that the parents have equal shared parental responsibility, the children live with the mother and spend five nights per fortnight and half of the school holidays with the father.
In September 2021, the father initiated these proceedings in order to resolve the discreet issue of which high school X was to be enrolled in for 2022. By her Response, the mother sought a relatively complex, cascading set of orders about schooling that prima facie were not workable at that stage of the year.[1] In addition, the mother significantly widened the scope of the proceedings to include overseas travel, vaccinations, medical assessments, mediation and Y’s schooling. Interim Orders were made in December 2021 with respect to X’s high school for 2022. In April 2022, the mother sought interim orders for X to attend private school commencing Term 2 2022. In June 2022, the interim hearing did not proceed as the mother had not filed material as directed. In December 2022, the mother filed an Amended Response seeking to relocate the children to Queensland. In December 2023, the final hearing was adjourned on the mother’s application.
[1] Response filed 2 December 2021.
The parents have been separated for nearly 10 years. X is now 14 years old. Y is now 11 years old.
The mother is 54 years old and last worked fulltime in October 2021. She attends to home duties and since March 2023, does some casual work as a beauty therapist. She has not re-partnered and remains living in the former matrimonial home which was refinanced into her sole name as part of the property settlement.
In relation to the mother, the Family Report writer stated:
20. The mother presented with a mistrusting view of the father. The mother is of the opinion that the father is primarily motivated by money and is seeking to avoid paying child support. She claims that he obstructs her efforts to provide supportive care to the children by withholding child support money and not consenting to necessary treatment for the children’s care particularly [X]. The mother expressed that the difficulties in communicating with the father has made the co-parenting relationship impossible and ultimately impacts on the children’s well-being.[2]
[2] Exhibit C1.
The father is 56 years old and has two children from a previous relationship – Mr B (28) and Mr D (25) who have not lived with the father for five years but visit most weekends. The father remarried in 2018 and his wife has three children who live with them – E and F (both 16) and G (15).
In relation to the father, the expert stated:
17. The father presented as organised with notes prepared and eager to convey his proposal for the care of the children. He seemed open and at times bluntly candid at times making jarring comments about the mother. The father was adamant that the mother has not supported his relationship with the children and has continued to breach parenting orders since previous final orders were made in 2016. Despite this he seemed to regard the mother’s role in the children’s life as important and was able to acknowledge aspects of her parenting he considered to be positive.[3]
[3] Ibid.
X attends H School and is in year 9. X is said to have difficulties with sensory processing, anxiety and a learning disorder with collateral information noting complex psychosocial stressors regarding the parental conflict.
The mother provides extensive evidence describing X, his behaviours and personality and his health and social challenges. The father deposes:
185. [X] is a bright young man, with broad interests and knowledge. He was very independent as a child and learned through exploring …
[…]
188. He has been diagnosed with dysgraphia, Auditory Processing Disorder, Anxiety and most recently ADD. He has received OT previously. He has recently started on Ritalin for ADD and is wearing contact lenses, these 2 interventions seem to be having a very positive impact on [X] attendance and participation at school which has Improved markedly, He appears to be managing the other issues well with some support from [Ms J], [X]’s treating psychologist.[4]
[4] Exhibit A1.
Y is in year 6 which means she will start high school in 2025 when X will be in year 10. The mother provides extensive evidence describing Y, her behaviours and personality. The expert stated that once she was comfortable, Y presented as having a maturity that seemed beyond her chronological age. Y spoke positively about school stating that she likes her teacher, the schoolwork, and her friends.
In relation to Y, the father deposed:
200. [Y] is a gifted student, compassionate and a well-liked friend at school. She has represented the school In Maths, [and sports]. She likes to ride bikes with her dad.
[…]
205. Like [X], [Y] has suffered with anxiety caused by the challenges of her parents' separation, she benefits from counselling from time to time from [K Centre] and her school counsellor, I will continue to monitor her needs and engage the support she requires when she needs it.[5]
[5] Exhibit A1
Both parents are experienced adversaries. They have each settled into a position that they genuinely believe that the other of them loves and cares for the children, but they each genuinely believe that their way is correct. They have grown tired of attempting to convince the other. They default to a position of anticipated disagreement. Reasonable minds may differ, but not all the time. The demonstrated result is that X and Y suffer from the delay, indecision and exposure to conflict.
THE FATHER’S CASE
By his Amended Initiating Application filed 15 April 2024, the applicant father sought orders including that:
(a)He have sole parental responsibility in relation to education and medical decisions with an obligation to first consult the mother prior to making any major long-term decisions;
(b)The children attend H School;
(c)The children live with the father;
(d)The children spend time with the mother:
(i)Seven nights per fortnight for about six months and then five nights per fortnight;
(ii)For about half of the school holidays.
By his Outline of Case Document and his opening remarks, the father contended:
(a)He positively engages with the mother and can be trusted to continue to do so;
(b)The mother does not genuinely try to co-parent;
(c)The mother has some mental and physical health vulnerabilities which inhibit her capacity to provide for all of the needs of the children particularly as they mature;
(d)Overall, he is better placed to make major long-term decisions, to genuinely consult with the mother and to provide for all of the children’s needs. In particular, X’s attendance at school and management of his health.
THE MOTHER’S CASE
By her Amended Response filed 26 February 2024, the respondent mother sought final orders including that:
(a)She have sole parental responsibility with no provisions for consultation with the father;
(b)A long list of injunctions and prescriptive orders with respect to education and health if she is not to have sole parental responsibility;
(c)The mother be permitted to relocate the children to Brisbane and the children spend time with the father:
(i)Two (2) weekends per school term;
(ii)One (1) week in Term 1 and 3 school holiday periods;
(iii)Ten (10) nights in term 2 school holidays; and
(iv)Three (3) weeks of the Christmas school holiday period;
(d)If not permitted to relocate, the children live with the mother and spend time with the father:
(i)Each alternate weekend from Friday to Monday;
(ii)For one (1) week Saturday to Saturday in mid-year school holiday periods;
(iii)Three (3) weeks of the Christmas school holiday period;
(e)The mother select Y’s private school;
(f)The father be restrained from bringing the children into contact with Mr B; and
(g)A range of orders in relation to Child Support.
By her Outline of Case Document and her opening remarks, the mother contended:
(a)With respect to the relocation, the ground on which the mother relies is financial hardship;
(b)The mother has genuinely engaged with the father over the years but he “over-uses and abuses his current parental responsibilities by sabotaging the mother’s efforts …”;
(c)The father has entrenched attitudes towards X’s health issues, and he doesn’t accept any presentation that is negative to the children;
(d)She seeks a reduction in time for the children with the father predominantly because the father does not comply with the children’s prescribed medication regime;
(e)They need a more stable base and less chopping and changing between homes so they can improve at school; and
(f)The children are not happy in their blended family and in particular with the step mother.
At the hearing, the self-represented respondent mother cross-examined the self-represented applicant father and put no questions to the father as to her proposed relocation. In cross-examination of the mother by the ICL, the mother changed her position significantly. By her “Annexure A” (which became Exhibit R2), the mother:
(a)Abandoned her application to relocate; and
(b)Changed her position with respect to the children’s time with the father from each alternate weekend from Friday to Monday (three nights) back to the current arrangements of five nights per fortnight plus one additional night per fortnight for X only.
THE ICL’S CASE
By the Minute of Final Orders Sought filed on 17 April 2024, the ICL sought final orders including that:
(a)The father have sole parental responsibility with an obligation to invite and consider the mother’s input.
(b)The children attend H School until they both complete year 10.
(c)The children live with the parents in a shared care, week-about arrangement.
REASONS FOR JUDGMENT IN MAY 2016
I have had regard to the Reasons for Judgment from May 2016 (Exhibit C2). Aspects of it that still ring true include:
8. ... There was a very dramatic shift, I might say, in the orders proposed by the mother at the commencement of these proceedings, filed as recently as late April, and those upon which her case was conducted. ...
9. It was unfortunate that by then, and apparently continuing, the parties were and are completely entrenched in their dispute. That is the most significant feature of this particular matter. …
19. I am somewhat concerned that the mother’s concession with respect to joint parental responsibility was somewhat made through “gritted teeth”, but on the evidence before me I would have made that order in any event. These are two parents who both love their children and have a genuine interest in their child’s lives, their wellbeing, and their best interests. …
37. … under the mother’s proposal there would be a reduction in the children’s time with their father in the short term, leading back up to a resumption of the current time in about 18 months’ time.
38. In the father’s proposal, the children’s time with each of the parties would remain pretty much the same as it is now until about 18 months’ hence when he would propose that the children’s time with each of their parents be equalised.
39. I am not satisfied that either of those proposals would meet the needs of these children. …
43. ... Taking into account the demeanour and presentation of the mother in particular during this hearing, I am satisfied that she has a very long way to go before she is able to communicate with the father in a manner that is not overbearing and “invasive” (I think was the word used by [Counsel]).
44. The parties’ personalities are vastly different. The mother is very tense. She has been unwell, and so there is some allowance for her presentation in terms of the very significant personal challenges she has faced last year and continuing this year. I find that does not however completely account for the differences between the parties.
45. The father has a much more laissez-faire approach to life generally and to the day to day care of the children. There is no evidence to suggest that approach has been detrimental in any way to the children. …
53. I have significant concern about the impact on the children’s emotional wellbeing of the mother’s current psychological presentation. She has clearly been having significant assistance herself since about late 2014. The Court does not know what particular issue she was discussing with her psychologist, but she has clearly had a lot of challenges to face. …
54. I find that at this stage the mother does not genuinely support the children’s relationship with the father. I find she has no confidence in his parenting capacity, and quite frankly believes that the time they spend with their father puts them at risk. …
56. The mother is a very competent, capable parent. She looks after the children well. She attends well to their day to day needs. She needs to accept however that if she does not try to settle her own emotions a little better than she is managing at the moment, the children are going to continue to be under a significant amount of pressure. …
58. As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents, I am satisfied that these are parents, as I say, who love their children. They love spending time with them. They love caring for their children. They have attended well to all of those responsibilities. I find however that the father is far more supportive of the children’s relationship with their mother than the mother is of their relationship with their father. …
60. I have already said that I am not satisfied that this is a matter that involves family violence, …
79. … I do not consider it is in the children’s best interests to make the order the mother proposed about the children being unwell, certified as unwell by a doctor, and then not going into the care of the other parent. As far as I am concerned, that is just a recipe for contravention after contravention after contravention, and one of the things that I think courts have to be particularly concerned about is to try and make orders that do not give opportunities for contravention applications. They are of no benefit to the children or the parties, and in this particular case, I would be concerned about contravention applications.
THE FAMILY REPORT
Following interviews in June 2023, a Family Consultant prepared a Family Report in July 2023. The recommendations at that time were that:
(a)The Court determine parental responsibility for the children;
(b)The current care arrangements remain as is for Y and X’s wishes to spend increased time with the father be given consideration;
(c)The mother completes the ’Tuning in to Teens’ program, the children may benefit from engaging with professional counselling and the parents may benefit from attending counselling (separately).
The Expert contended:
103. Both parents appeared to lack insight or acknowledge the impact of their own behaviours on the children and seem to place blame solely with the other parent. Both parents would likely benefit in some form of counselling to reality test their thinking.
104. … both parties report high levels of stress around their communication suggesting that parental communication should be kept to a minimum. There is a risk that a parenting arrangement that requires regular parental communication may result in further conflict and instability. When parents are unable to parent jointly because of high conflict a parallel parenting plan instead of co-parenting plan can provide an option. This allows parents to parent independently when the children are in their care and can provide specific boundaries that protect the children from the conflict. Parallel parenting can help parents disengage from each other and develop different rules at different parent’s homes, with no interference with other parent’s time.[6]
[6] Exhibit C1.
THE HEARING
I have already noted that both parents are experienced adversaries. Both of their affidavits are reflective of their relationship which is steadfast as to their own position and in the majority critical of the other. They are now also relatively experienced litigators and seemed comfortable representing themselves. My impression is that they have become familiar with the language they have heard in child related proceedings and were careful.
The father relied on his affidavit in chief (Exhibit A1) and another in reply (Exhibit A2). He was cross-examined by the mother and the ICL. The father’s oral evidence was significantly more child-focussed than his affidavit. The father spoke of the children from their perspective, in particular, about X’s attitude to the ASD assessment, his use of melatonin and his school attendance. Those aspects are considered in detail later.
The mother presented as being less prepared than what she may otherwise have liked or what may have been expected at final hearing. However, she was by no means in disarray. That manner is consistent with the court file and the number of delays and adjournments in these proceedings attributable to her. The mother relied on her trial affidavit (Exhibit R1). She was cross-examined by the father and the ICL. Through the hearing, including during her final submissions, the mother was still rifling through papers and seeking to tender documents supporting her contentions.
THE ISSUES
It is worthwhile first identifying significant features of this case that are not in issue or are otherwise obvious on the evidence:
(a)No party seeks an order for equal shared parental responsibility;
(b)Family violence is not an issue in this case. The parties have been separated for nearly ten years. There is ongoing argument, hostility and resentment but that does not amount to family violence;
(c)Neither party says the children are at risk of harm in the other parent’s care save for the indirect harm they suffer as a result of exposure to the parents’ conflict and their inability to co-parent and make decisions;
(d)Both children have a meaningful relationship with both parents;
(e)Each of the parents purports to recognise the benefit to the children of maintaining their relationships with the other parent;
(f)Both parents have demonstrated their commitment to the obligations and responsibilities of parenthood.
Other facts, matters or circumstances on which there was some dispute requiring determination are:
(a)What are the children’s views and how should they be taken into account?
(b)What is the capacity of each parent to provide for all of the needs of the children?
(c)What is the nature of the relationships with the children’s half-brother Mr B and the paternal blended family?
(d)What is the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain the children?
(e)What are the issues about the children’s health?
(f)What are the issues about the children’s education?
The ultimate issues requiring determination are:
(a)Which parent should have parental responsibility for the children; and
(b)What should the living and time arrangements be.
What are the children’s views and how should they be taken into account?
I note and adopt the ICL’s submissions that:
[X] has expressed a view to the Court Child Expert that he wishes to spend equal time with each of his parents.
[Y] has expressed a view to the Court Child Expert that she does not wish the current arrangement to change.
The Court Child Expert noted that both children expressed views commensurate with their developmental phase (being concrete thinking and a focus on fairness) and both children presented with indicators of anxiety and stress when discussing their family. Nevertheless, the Court Child Expert opined weight should be placed on both children’s views, particularly [X]’s given his age.
The ICL considers it is likely appropriate for the Court to place some weight on the children’s wishes given the above, noting the Court Child Expert’s comments as to shared care at paragraph 101 and the comments at paragraph 99 as to possible destabilising of [X]’s well-being where he forced into an arrangement vastly different to his wishes.[7]
[7] Case Outline of the ICL filed 17 April 2024, 6.
Both parties recognise and accept that X wants more time with the father, whereas Y is comfortable with the current arrangement and does not want it to change.
The expert conceded to the mother in cross-examination that a difficulty presents itself if X’s wish for increased time with his father was granted but Y’s wish for time to stay the same was not. The expert suggested this could be mitigated by a longer transition time or with counselling and support for Y. The expert also noted that Y was 10 years old at interview and already her growing maturity would mitigate any anxiety. The expert was confident that the strength of Y’s relationship with primarily her father, but also her half-brothers and X, would be a protective factor about any anxiety or unhappiness she was experiencing with respect to her step-mother or step-siblings. The expert agreed with the ICL that the ICL meeting with her and X to explain the orders would be of benefit to them.
What is the capacity of each parent to provide for all of the needs of the children?
With the benefit of the records from the mother’s therapist produced under subpoena, in cross-examination of the mother the ICL confirmed “some of the things that you’ve had to deal with over the years” as:
(a)In 2014, problems with Mr B and the breakdown of the relationship with the father;
(b)In 2015, illness, a year off work and the start of financial stress;
(c)In 2016, a parenting court case and the start of having child support issues;
(d)In 2017, health issues, a reduced workload, fitness for work assessments and some of X’s more significant issues emerge. Exhaustion and increasing pain issues;
(e)In 2018, various illnesses, medical treatment ongoing, a fitness for duty assessment at work and the “big issues” with child support started in November 2018;
(f)In 2019, knee surgery and ongoing child support issues;
(g)In 2020, an AAT hearing about child support, a total hip replacement and commencement of financial counselling;
(h)In 2021, shoulder surgery, at certain periods overwhelmed, employment terminated and financial issues continue;
(i)In 2022, ongoing financial issues and at one point in arrears by $75,000;
(j)In 2023, these proceedings and a worry about becoming homeless.[8]
[8] Transcript, 23 April 2024.
Some of the ways in which the mother described herself in the therapist’s notes was depressed, beyond exhausted, hopeless, disempowered and shamed. The mother’s current diagnoses are chronic fatigue, depression, mixed anxiety, depressed mood, chronic pain, stomach problems, hypertension, historical illness, related peripheral neuropathy and chronic sinusitis.
The mother recognised this was an extraordinary amount to have to deal with but did not concede that it impacted upon her capacity to make the best decisions for the children. Where, with the benefit of hindsight, she has ‘got it wrong’ she says is no different to what might otherwise be expected in the normal run of things.
The reality is that the mother’s health and present circumstances inhibit her capacity to provide for all of the needs of the children. She does not reconcile in an objective way how her health issues render her incapable of working even in the face of financial stress, yet she says her health issues do not impact upon the children. The final hearing that was adjourned in December 2023 because of the mother’s health issues is a direct and recent example otherwise.
It seems the mother has ceased or removed most aspects from her life except for her children and submits that is a good thing. However, she was not able to demonstrate a consequential benefit to the children. It has not meant that she is more child-focussed or a better carer than the father. In other words, she may focus on nothing other than the children, but the children do not experience that as a relative benefit.
In relation to X, an example is the manner in which the mother’s house is kept. The father deposed that X is embarrassed by the state of the mother’s house and X expressed to the expert that he found the environment at the mother’s challenging in terms of clutter. He stated there’s ‘a lot of stuff’ and he wished ‘she would get rid of stuff’. The mother conceded in cross-examination by the ICL that she had had numerous conversations with X about this, and that she had apologised to him.[9] The mother gives no indication however of having alleviated X’s concerns.
[9] Transcript 23 April 2024.
In relation to Y, an example is the mother’s health. Y has expressed to the father and the expert anxiety brought about by worrying about her mother’s health. Y expressed that sometimes she does not want to go to school because she is worried about getting Covid-19. The mother gives no indication of recognising or addressing that issue for Y.
A further example is the children’s high school. The evidence is clear that the mother failed to work with the father or on her own to identify and secure a high school placement for X. The evidence is clear that the mother has formed fixed views about Y attending a private, catholic high school but has no achievable plan to manage that and has not considered any alternatives.
The mother herself recognised that a lot of the stress that she is experiencing stems from financial pressure, and she put questions to the expert about that. Essentially, she submitted that her financial stress is alienable from her capacity to parent.
The mother’s financial circumstances
The mother’s original case for relocation and the primary reason for it (being to alleviate financial hardship) was a consideration as to the mother’s housing and financial situation. It seems that it is precarious. The mother conceded that she has been under financial pressures since 2015, sought financial counselling in 2021 and represented in late 2023 that she and the children may become homeless.
She has two encumbered investment properties in Queensland and a mortgage on the house where she and the children live in Canberra. The mortgage is between $25,000-$30,000 in arrears. She was on a three-month hardship moratorium. The mother works about 10 hours per week for $30 per hour. She has taken steps to start drawing a medical pension from her superannuation. Under cross-examination by the ICL, the numbers simply did not add up at a macro level. Even with forthcoming income from her superannuation, the mother did not seem to have a plan to meet hers and the children’s reasonable expenses whilst simultaneously paying the respective mortgages.
Nevertheless, the mother maintained that the children should go to private schools. Her case for meeting the private school fees was to quarantine the family tax benefit she received to meet half the associated costs, and to rely on the father over and above child support for the other half. There is a real question as to the capacity of the mother to provide for the financial needs of the children and perhaps even their housing. Consequential is the potential harm the children may suffer if they are exposed to the realities of the mother’s circumstances. She says the children are “acutely aware” of her financial circumstances. They do not undertake activities or go on holidays. She obtains food and clothes for the children from community groups. Further, that the mother seems to continue to hold out private school to the children as a viable option.
The mother firmly held her ground that everything she does is for the benefit of the children and she sacrifices a lot because she wants what is best for them. She firmly held her ground that the father underpaying child support is a big part of her problem. She could not demonstrate insight into the precariousness of her situation. Her reasoning of living so meagrely so that the children might have ‘the best,’ is actually delivering a poor outcome to the children in terms of providing for their financial needs. Very soon, as they become teenagers, I comfortably infer that incapacity is going to bleed into an inability to provide for their social needs.
What is the nature of the relationships with the children’s half-brother Mr B and the paternal blended family?
Mr B
In relation to Mr B, in the 2016 proceedings after setting out the circumstances on which the mother grounded her position that Mr B was a danger to the health and safety of the children, the Court found:
22. It is her firm belief, and I find that to be so, that the children are at risk in the care of the father if his son, [Mr B], is in his care. … I find the belief that the mother has is very deep seated.
23. It was clearly formed during the relationship where, on the evidence, she found [Mr B]’s behaviour and difficulties very, very challenging. …
27. It is not unreasonable for the mother to have some concerns about [Mr B], but I do not accept that [Mr B] is the risk to the children that the mother believes him to be.
28. There is no evidence of the children having been impacted on by any behaviours of [Mr B]. The evidence in terms of [X] and [Y]’s relationship with [Mr B] is that it is a positive relationship as described by [the family report writer], and by [X] himself, in particular, to [the family report writer].[10]
[10] Symon & Whiteley [2016] FCCA 3501
The mother’s evidence in support of the restraint she seeks preventing all contact between the children and Mr B is:
[121] … I have concerns that [Y] came home to tell me "[Mr B] has a new car, and he drove us round and round the roundabout ". I asked [Y] "do you mean he turned the comer and [Y] said, no we made circles ". It is concerning that [Mr B] shows no care and attention for others in the car, and this kind of lark in driving puts [X] and [Y] at risk.[11]
[11] Exhibit R1.
Under cross-examination, the mother deposed that it was not reported by Y as a concern or a worry. The expert recorded that the children spoke positively about their relationship with their half-brothers. There is no evidentiary basis for the inunction the mother is seeking. It is a concern that in the mother’s judgement such an order is appropriate with the consequential effect of depriving the children of their relationship with their half-brother.
The children’s blended paternal family
The mother deposed that “the children are not happy in their blended family in their father's home and are particularly averse to their stepmother, [Ms L]” and “[Y] is bullied by her stepsister [G].” In cross-examination, the expert regarded Y’s good relationship with her father as a protective measure that would alleviate Y’s concerns. The expert reported:
79. [Y] said that she feels sad at her father’s home sometimes as her stepmother is “a bit mean and favours her own children”. [Y] added that sometimes she feels unwell, and her stepmother says that she is “faking” and needs to go to school. [Y] reported that she finds her stepmothers behaviour to be “unfair” and she spoke to her father about this. [Y] said that her father spoke to her stepmother about [Y]’s view but that the stepmother denied favouring her children.[12]
[12] Exhibit C1.
Ms L was interviewed as part of the expert’s preparation of the family report. Unfortunately, Ms L is not a resource on which the father may rely to support and encourage his efforts in relation to his co-parenting relationship with the mother or in support of the children’s relationship with the mother. From what the Family Consultant reported, she is wholly aligned with the father in her criticism of the mother without the need to try to temper it.
Nevertheless, there is an insufficient evidentiary basis to limit or restrict the type or quantum of time between the children and their father at the father’s home on the grounds of the blended paternal family environment.
What is the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain the children?
The mother is of the view that her difficult financial circumstances are in a large part attributable to the father not meeting his obligations to financially maintain the children. The parents have argued continuously about child support. There have been multiple reviews and at least two contested hearings before the Administrative Appeals Tribunal.
Whilst there have been times where the statements indicate the father has been in the order of $20,000 in arrears, that is a snapshot. Subsequent reviews and alterations and payments change the picture. The reality is the parties are assessed for child support and the assessment is the assessment, and that is the best evidence as to what the amount of child support should be. The father is close to up to date which means the mother has received and thereby the children have had the benefit of all of the child support that the father has been assessed to pay.
Over the next six or seven years until Y turns eighteen, I am satisfied that:
(a)The mother will not reach a point where she is satisfied that the father is not attempting to game the system by understating his income; and
(b)The father will not reach a point where he believes that the mother is not attempting to game the system by choosing not to earn to her capacity; and
(c)They will be locked into a battle of attrition in this regard. Mercifully, it will end when Y is no longer a child. That is not an issue that can be resolved inside of these proceedings. They will have to continue to submit to the requirements of the Child Support Agency.
What are the issues about the children’s health?
The expert reported:
95 … The father appeared to not share the same opinion as the mother in terms of [X]’s possible developmental issues and needs and rather views the mother’s consistent efforts to address issues as potentially detrimental to [X]. The mother appears to have been proactive in seeking treatments and perhaps at times hyper focused on assisting [X] navigate the developmental difficulties he experiences. It is understandable that from the father’s perspective, and perhaps also [X]’s, that the mothers hyper focus has been perceived as somewhat overbearing and unnecessary. Despite this, it is this report writer’s impression that the mother has intended to seek to support [X] to achieve developmentally and set him up for success as an adult. However, [X] is of an age where he appears to be wanting less interventions as he navigates being an adolescent and it is also understandable that he might be drawn to the parent who is less inclined to seek interventions. It is reassuring that the parents agree on [X] commencing to take medication to support his ADHD symptoms. If [X] were to live with the father, it will be important that he continually maintains any of [X]’s medication regimes.[13]
[13] Exhibit C1.
Under cross-examination, the mother deposed:
I think hyper-focused might be an overstatement. Maybe it is better reflected by my frustration, and my anxieties I have when I’m obstructed in getting [X] the help he needs; because I know when he gets it, it’s a turning point for [X].[14]
[14] Transcript 23 April 2024, 196.
The expert formed the view that the father was able to adequately meet the children’s health needs and that position was confirmed in her oral evidence. I am satisfied that the father’s approach is significantly more child-focussed and appropriate as the children become older. There are two aspects that were considered in detail in the evidence that are illustrative of the father’s approach being more beneficial to the children. They are, whether or not X is assessed for ASD, and the administering of melatonin.
Of course, the real question is not what assessments X should undergo nor is it what medication X should be on, the question is who is better placed to make decisions about these types of issues in circumstances where the parents are unable to make joint decisions.
X’s assessment for ASD
It is not in contention that X has been through a lot of assessments, treatments, therapies and programs over his fourteen years. The parents are not in agreement as to whether or not X should be assessed for ASD. The father’s position is that X is hesitant and he doesn’t want to do it. He recognises that for X it is embarrassing, he has to be taken out of school and it’s a significant and exhausting process for him to go through. The father did accept, when he was pressed about it, that there might be some positive benefits for X, including the school being wholly apprised of any issues or diagnoses that he might have. Under cross-examination the father said that if he was told by X’s paediatrician with a clear direction that X should undergo that testing then he would facilitate it.
The mother’s position is that X should undergo the testing whether or not he wanted it and whether or not it had negative consequences for him like being taken out of school or explaining it to his peers. She was clear in her evidence that it was going to have a positive impact for X, and what she referred to in particular was X’s ongoing social difficulties and assisting him to be work ready.
Tellingly, the mother deposed that the last time she had asked X whether he wanted to be assessed for ASD was 12 to 18 months ago and it was in a casual manner, in response to a general kind of question from X. I find that remarkable given the rigidity with which the mother held to her view about the necessity of the assessment.
The expert coupled the father’s approach with X’s expression to the expert that he didn’t really want to engage with counselling in an ongoing way and possibly other interventions. She determined that these issues were illustrative of the father being more open and willing to take X’s views and wishes into account.
Administering of medication
An extensive and important part of the mother’s case was the father’s unwillingness to administer X’s medication, in particular melatonin to assist with X’s sleeping. Her position was that X’s sleep continues to be impacted at her house. She says that she diligently medicates him with four milligrams of melatonin each night that he is in her care, but the sleep disruption is caused at least in part by the father not medicating X with melatonin when X is at his house. There was detailed cross-examination about what each party does to get X to bed. The father’s firm position is that X has available but does not require melatonin at his house, he has good sleep hygiene, and he is usually asleep when the father checks on him between 9:30 and 10:30pm each night. The father’s firm evidence was that he gets X up and going and to school. The mother’s evidence was less cogent with respect to the effectiveness of X’s sleep patterns at her home, including the course taken by the mother to administer X melatonin before bed.
The school attendance records categorically demonstrate that the children’s attendance on-time, and at all, is markedly superior when in the father’s care compared to when in the mother’s care.
What are the issues about the children’s education?
Both parents wanted X to go to a private high school. The parents commenced discussion in March 2021. They agreed the father would enrol X in M School and the mother would enrol X in N School and O School, they would attend school open days and decide which high school once, and if, they received an offer. By August 2021, the mother had not enrolled X in N School or O School and refused to accept an offer from M School which then expired.
The mother gave evidence that “the decision for X's high school for Mr Symon was really about money (not X's education nor development needs). Mr Symon was trying to coerce me to give up child support rights in particular, and only if I did that, would he allow and help pay for X to attend M School … ” The parents arguing about money prevented the mother from agreeing to X’s enrolment.
The father sought to enrol X in the public high school but could not complete it without the mother. X’s year 6 teacher warned the parents that X would soon miss out on the transition process. The father commenced these court proceedings and obtained orders for X to be enrolled in the public school which is where he has since attended. It is uncontroversial that he has since settled in there and there is no plan to try and change X’s school for year 10 next year.
The mother seeks orders including that:
(a)In the event the mother is not granted sole parental responsibility:
8. The parents will do all things necessary to enrol [Y] to attend Year 7 high school in 2025, at [M School], [P School] and [Q School].
9. The father is prohibited from refusing an offer from any school, or not consenting to, or subsequently withdrawing his consent for [Y]’s attendance at any of these schools.
10. The father’s cost contribution towards school fees is in accordance with the child support assessed income percentages of each parent.
11. The father may enter a split parent billing arrangement directly with the school, and pay his share of school fees contribution to the school.[15]
(b)Where the children do not relocate:
5. The parents forthwith enrol [Y] to attend high school for 2025 at both [P School] in Canberra, [M School] in Canberra and [Q School] in Canberra if [Y] is accepted at all schools the parents do all things to accept enrolment at the school as elected by the mother.
6. Upon [X] completing year 10 at [H School], the parents do all things required to facilitate [X] continuing to Year 12 at a school to be agreed and failing agreement, a school elected by the mother NOTING THAT the mother seeks to ensure that [X] engages in an Australian school-based apprenticeship (“ASBA”) in his career path of choice.[16]
[15] Exhibit R2.
[16] Ibid.
The mother’s evidence in support of these orders is:
16(b) In the event relocation is not granted. I request an Order for [Y]’s high school be made for her to enrol and attend high school at either [M School], [P School] or [Q School], when a place is offered. It was always our intetions the children would attend a private high school in the catholic education system, which is why they attended the feeder catholic primary school […]. [Y] achieves high academic results, and is most likely to go onto further tertiary education. She has expressed she wants to be a [professional]. [Y] is very stressed about the imminent change for high school, not only due to the parental conflict she wintessed with [X]’s high school and him been sent to a school with none of his friends from Year 6. [Y] is asking me not to go to court at all, she says "dad will just do it anyway". She is asking all her friends to convince their parents to send them to [H School] so she has friends to go with her. None of her step-sisters will be at [H School] and [X] will be in his last year at that school in 2025.[17]
[17] Exhibit R1.
What is notably absent was any enquiries the mother had made about what school would actually be best for Y in all of the circumstances and why. The evidence suggests her approach is, firstly, any catholic private school is better than the default public school where X is. Secondly, it is the father’s non-commitment to paying the school fees that is the impediment.
The mother’s misconceived approach along with the evidence about her incapacity to meet the financial demands associated with private school are demonstrative of well-intended but poor judgement on the issue of Y’s high school education.
THE LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the children’s best interests as the paramount consideration (s 60CA and s 65AA).
Parental responsibility
Division 2 of Part VII of the Act is titled ‘Parental responsibility’ and deals with the concept of parental responsibility including (a) what parental responsibility is; and (b) who has parental responsibility.
Section 61B provides that parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child, despite any changes in the nature of the relationships of the child’s parents, but is subject to any order of a court for the time being in force.
Section 61D provides that a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order.
Further, the effect of a parenting order that provides for shared parental responsibility is set out at section 65DAC where the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child. The order is taken to require the decision to be made jointly by those persons which requires each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue.
Pursuant to sub-section 4(1), “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, 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.
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 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 family violence.
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.
The best interests of the children
Section 60CC of the Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the children’s best interests. In Tibb v Sheean (2018) 58 Fam LR 351 at [68]–[69], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. I have given careful consideration to each of the primary and additional considerations as they relate to the issues and circumstances of this case. I will discuss the considerations only to the extent necessary.
DETERMINATION OF PARENTAL RESPONSIBILITY
The presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility is not rebutted by the presence of family violence. However, I have no difficulty finding that it is rebutted by the evidence that the parents are unable to make joint decisions about major long-term issues. It is a question now as to which parent is better placed to make major long-term decisions, including taking into account the other parent’s views.
There is sufficient evidence that the mother’s decision making about major long-term issues is not optimal for the children. In the Family Report, the expert recommended that both parties reality test their thinking. The mother did not do that. On her own, the mother was not able to recognise and respond to X’s desire for more time with the father. On her own, the mother was unable to recognise the detriment to the children of moving them to Queensland at this time. Not until she was cross-examined by the ICL did that happen. The mother unflinchingly pursues an ASD assessment for X despite not having discussed it with him for 12 or 18 months and in light of hearing from the father that X does not want to do it. The mother could not secure a high school place for X and would not work with the father on it. A similar situation is brewing with respect to Y next year.
The relocation is an example of the mother being so focussed on her parenting of the children that she has lost her handle on the children’s own perspective. As the children get older, what is best for the mother increasingly does not align with what is best for the children. Another example is her pursuit of preventing the children’s relationship with their half-brother despite all of the evidence as to any need for it but in furtherance of her own opinion.
The father has demonstrated that he is more likely than the mother to allow and support X’s growing independence. Both children’s school attendance is far higher in the care of the father. They have sleep routines and chore responsibilities in the father’s care. The father is more likely to secure a certain high school placement for Y. The expert is satisfied that the father is capable of providing for Y’s needs who will likely find change more difficult.
As to the capacity to genuinely consult with each other, the father’s input and protestations are no longer heard or considered by the mother. The mother has formed a comprehensive and fixed view that the father is only and always obstructionist and financially mean. Whilst I am concerned that post-court proceedings the father’s present intentions and efforts about consulting with the mother may drop off, the evidence is that he does recognise that there is a benefit to it.
I am satisfied that it is in the best interests of the children for the father to have sole parental responsibility
DETERMINATION OF TIME ARRANGEMENTS
In the usual manner, the expert was provided with the parties’ trial affidavits and a summary from the ICL as to the evidence from the parties under cross-examination. The expert changed her recommendations:
(a)From a different regime for the children to the same regime; and
(b)From a five / nine regime for Y and a six / eight regime for X to seven / seven for both children; and
(c)From split time across two weeks to continuous time in each household.
The expert recommended a week about regime on the basis that:
(a)It is a clear and understandable regime with minimal issues around changeovers;
(b)The simpler the regime the better it would be for X;
(c)Whilst Y may prefer the existing regime and would probably cope better than X, on balance, the benefits of consistency, predictability and the same regime is likely to outweigh the detriments to Y;
(d)It aligns with the parallel parenting approach that the expert canvassed in her report as a potential way forward for this family.
The expert also recommended a transition period supported by counselling particularly for Y.
The expert also endorsed the father’s preference for school holidays being half each, including three weeks over the Christmas period with the qualification that Y be supported to shorten the time with each parent if that is what she expresses as wanting to do.
The expert also recommended that the orders be expressed in a manner that the children live with one parent and spend time with the other parent even if it is an equal amount of time such that they have one home address.
By closing submissions, the ICL maintained her initial position that the time arrangements should be week-about but amended it to include that:
(a)There be a transition period for Y;
(b)Y has access to counselling;
(c)The ICL meet with the children to explain the orders;
(d)The orders be expressed as living with one parent and spending time with other; and
(e)The end of year holiday period be more than one week in each house.
There is in this case an absence of the usual characteristics that would be preferred before ordering a week-about arrangement such as:
(a)Consistency between the respective houses;
(b)Open, free-flowing, trustworthy communication between the parents;
(c)The children experiencing life in both places in a similar way.
There is demonstrably no consistency between these households. The parents are unable to achieve consistency and the children have lived with that for a very long period of time. Nevertheless, the concept of parallel parenting is applicable in this case whereby the children have an understanding that when they are in one or the other of their places, a certain set of arrangements apply and there isn’t any attempt to try and force one on the other.
I am satisfied that the mother’s case for less or the same time with the father would be detrimental to the children. I am not satisfied that the father’s case for a nine / five arrangement in his favour is necessary to obtain an optimal outcome for the children and in fact risks being detrimental. Together with the determination of parental responsibility, I am satisfied that the parallel parenting week-about arrangement, with conditions, as proposed by the ICL and endorsed by the expert is in the best interests of the children.
THE ORDERS
Order 1 is made in order to discharge all previous parenting orders.
Both of the parties petitioned the Court to make final orders in the circumstances where final orders had previously been made. I have had regard, as I must, to the rule in Rice v Asplund (1979) FLC 90-725 that before reviewing final orders in relation to parenting matters, the Court needs to be satisfied that there has been a significant change in circumstances since the making of the order. I am satisfied that the 2016 Orders became untenable once the Court’s intervention was required in order for X to have a high school to go to and the acknowledgement of both parents that equal shared parental responsibility is not working. These are significant changes in circumstances to warrant the Court reconsidering the orders.
Rice v Asplund has been said to reflect the principal that there be an end to litigation and the need to protect children from repeated exposure to court proceedings is at the core of the Rice v Asplund doctrine. Unfortunately, the children have now been exposed to a second set of parenting proceedings and it seems they are regularly exposed to the disputes between their parents. In the event either party seeks to institute further proceedings, in my view they should anticipate having difficulty justifying further proceedings against exposing the children to the uncertainty and stress of further litigation.
Order 2 for the father to have sole parental responsibility is made for the reasons set out herein in particular at paragraphs 82 - 87.
Of the ‘major long-term issues’ included in (but not limited to) section 4(1) of the Act, only (a) the children's education (both current and future) and (c) the children's health have featured in this case (except for the mother’s proposed but abandoned relocation). The conferral of sole parental responsibility on the father ought not extend any further than what is necessary. This means that each parent continues to have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the children, and the order does not take away or diminish any aspect of the parental responsibility, except, for major long-term decisions with respect to the children’s education (both current and future) and the children’s health.
I am also satisfied that the children are likely to benefit from the input of the father and the mother with respect to major long-term decisions and Order 3 is made accordingly.
I decline to make orders committing Y to a particular school. For the reasons set out herein, that is a matter that ought to be determined by the father in accordance with these Orders including his obligation to consult the mother.
Orders 4-11 for the children to transition to a shared care, week-about arrangement are made for the reasons set out herein in particular at paragraphs 88 - 96. Whilst a transition period was recommended by the expert and the ICL and recognised by the father, no specific regime was proposed. The regime ordered seeks to balance what may be slower than what X would prefer but faster than what Y may prefer, along with not splitting up the children and minimising changes to the existing regime which the children are used to.
The children are used to changing over on a Monday by way of school attendance. Neither party sought a regime for special occasions beyond Mother’s Day and Father’s Day. The children no longer need an order to spend time with the father for their half-brothers’ birthdays as they are now old enough to recognise those occasions during their next closest time. Both parties sought block time for up to three weeks over the long summer holiday period and neither sought a carve out for time over the Christmas period. The children are set to spend Christmas period with the father this year consistent with the previous regime. With a week-about regime, there is no need to provide for half of the time with each parent during the usually two week mid-year school holiday periods.
Orders 12-15 to support Y are made based on the recommendation of the expert and adopted by the ICL as a measure to support the increased time with the father contrary to Y’s wishes.
Orders 16-22 are age appropriate for these children, sought in more or less the same terms by each party and are conducive to the parallel parenting arrangements.
I decline to make orders about interstate travel. No evidence was adduced nor submissions made on this issue.
Orders 24 and 25 are made for clarity and convenience in relation to passports and international travel.
Order 26 is made at the proposal of the ICL and endorsed by the expert.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 19 June 2024
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