Tait and Hahn
[2016] FCCA 353
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAIT & HAHN | [2016] FCCA 353 |
| Catchwords: FAMILY LAW – Parenting – Relocation – Mother unilaterally relocated a young child’s residence from Sydney to Melbourne – allegations of family violence and drug and alcohol use – expense of travel – in the best interests of the child to allow relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Hall & Hall (1979) FLC 90-713 Taylor & Barker [2007] FamCA 1246 Mazorski v Albright (2007) 37 Fam LR 518 |
| Applicant: | MS TAIT |
| Respondent: | MR HAHN |
| File Number: | MLC 8089 of 2015 |
| Judgment of: | Judge Baker |
| Hearing date: | 7, 8, 9 and 10 December 2015 |
| Date of Last Submission: | 10 December 2015 |
| Delivered at: | Hobart |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | RNG Lawyers |
| Counsel for the Respondent: | Ms Sevdalis |
| Solicitors for the Respondent: | Santone Lawyers |
ORDERS
The parties have equal shared parental responsibility for the child, X born (omitted) 2009 (“the child”).
The child live with the mother and the mother be permitted to relocate the child’s residence to the Melbourne metropolitan area in Victoria.
The child spend time with the father:
(a)During school terms, unless otherwise agreed:
(i)On the fourth and seventh weekend per term in Sydney, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00pm Friday and to depart Sydney no earlier than 5:00 pm on Sunday;
(ii)On one weekend per month, at the option of the father, to occur in Melbourne from after school on Friday (or 3:00 pm if not a school day) until 5:00pm Sunday, such weekend to be nominated by the father in writing within 7 days prior to the commencement of each school term;
(iii)Such other time as agreed in writing;
(iv)For the Sydney trips the mother arrange the child’s airfares, with the father to reimburse the mother for one-half of the child’s airfares within 24 hours of the mother’s written notification to the father of such cost;
(v)The father pay the travel costs and accommodation for each visit to Melbourne.
(vi)Each party to pay their own costs of travel when accompanying the child.
(b)For school term holidays, unless otherwise agreed:
(i)From 25 March 2016 a period of seven days and nights in Sydney, changeover to occur at 11:00 am for both collection and return at Sydney Airport. In the event that the child becomes distressed, the father shall return her to the mother for the day. The parties shall equally share the cost of the child’s airfares;
(ii)during the balance of 2016 and each alternate year thereafter for the first half of the holiday period, from the last day of school term, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00 pm, until the middle Saturday of the holiday period with X to depart Sydney no earlier than 5:00 pm;
(iii)during 2017 and each alternate year thereafter, for the second half of the holiday period, from the middle Saturday of the holiday period at 11:00 am until the Sunday before school resumes at 11:00 am;
(iv)the parties each pay for one-half of the child’s airfares, with the father paying for a one way ticket for the child's travel to Sydney and the mother paying for a one way return ticket for the child;
(v)Each party to pay their own costs of travel when accompanying the child.
(vi)Upon the child being able to travel as an unaccompanied minor, the parties each pay for one-half of the child’s airfares, with the father paying for a one way ticket for the child's travel to Sydney and the mother paying for a one way return ticket for the child;
(c)For the Christmas school holidays:
For the 2016/2017 Christmas school holidays, unless otherwise agreed, for two non-consecutive weeks as follows:
from 10:00 am Christmas Eve until 6:00 pm on 31 December; and
from 6:00 pm on 21 January until 6:00 pm on 28 January
During the 2017/2018 Christmas school holidays and each alternate year thereafter, unless otherwise agreed, for the second half of the holiday period commencing at 11:00 am on the middle calendar day of the school holiday period and concluding at 11:00 am on the day before school commences.
During the 2018/2019 Christmas school holidays and each alternate year thereafter, unless otherwise agreed, for the first half of the holiday period, with X to depart Melbourne no earlier than 6:00 pm and no later than 7:00pm Friday and to conclude at 11:00 am on the middle calendar day of the school holiday period.
(d)At the option of the father on (omitted) (X’s birthday) in Melbourne from after school until 6:00 pm if a school day and from 10:00 am until 2:00 pm if a non-school day, unless otherwise agreed. If the child is spending holiday time or is otherwise spending time with him on her birthday, the child spend time with the mother from 10:00am until 2:00pm:
(e)Such further time as agreed in writing.
That for the purpose of the child’s travel to and from Sydney, unless otherwise agreed between the parties:
(a)That from the age of 8, the child may travel by aeroplane unaccompanied (subject to the requirements of the airline) and the parent responsible for arranging the travel pursuant to these orders must comply with any requirements of the airline regarding children travelling unaccompanied;
(b)That the parties shall provide to each other notification in writing by email or text message of their means of travel, departure and arrival times and flight numbers at least 48 hours prior to the said travel, and inform the other of any changes to the itinerary as soon as known.
In the event that flight times/bookings change due to unforeseen circumstances beyond the parties’ control, the parties will provide each other notification in writing by email or text message of any variations necessary to changeover times due to flight bookings at least 48 hours prior to the said travel.
Changeover shall occur:
(a)For time spent in Melbourne on a non-school day, unless otherwise agreed, at (omitted) Station Melbourne;
(b)For time spent in Melbourne on a school day, unless otherwise agreed, at the child’s school.
(c)For time spent in Sydney, unless otherwise agreed, at the departure security gate at Sydney airport.
Within fourteen (14) days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to authorise the school attended by the child to provide to each of the parties, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the mother and the father individually, then the parent who is in receipt of this information shall provide copies to the other parent as soon as is practicable.
Each party shall:
(a)in the event that the child is prescribed medication, notify the other of the prescribed medication as soon as is practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication will be provided to the other parent at changeover and the party being provided the medication will ensure that it is given to the child as prescribed and returned to that parent at the conclusion of the child’s time with the other parent.
(b)In the event that any of the child is involved in a medical emergency, notify the other immediately and provide details of the health care professional or medical facility upon which the child attends;
(c)provide the other party a copy of any report received with respect to any medical treatment for the child within 48 hours of having obtained that report.
Each party shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and shall notify the other party of any changes thereto within forty eight (48) hours of the date of such change occurring.
The party who the child is living/spending time with in accordance with these orders shall facilitate telephone or such other similar means of communication with the other parent, at any reasonable time, upon the request of the child.
The parent who is not living/spending time with the child facilitate the other parent communicating with the child by telephone, face time or Skype as follows:
(a)each Monday, Wednesday and Friday between 3.30pm and 4.00 pm , or such other days and times as may be agreed
(b)Mother’s Day at 10am (if the Mother is not otherwise spending time with the child);
(c)Father’s Day at 10am (if the Father is not otherwise spending time with the child);
(d)Christmas Day at 10am;
(e)The child’s birthday at 3.30-4.00pm; and
(f)The parent’s birthday at 3.30-4.00pm;
and at any time is requested by the child and each parent, and the parent shall provide the child with privacy.
Instead of communication via telephone, the parties are also at liberty to communicate with the child by skype, text message or other such electronic means, if those means are available.
Each of the parties are hereby restrained by injunction from:
(a)showing the child documents in these proceedings, discussing these proceedings in the presence or hearing of the child, or permitting any other person to do so;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child (and use their best endeavours to ensure that no other person does so);
(c)consuming illicit drugs or non-prescription medication when the child is in their respective care or 48 hours prior to the child being in either parties’ care;
(d)smoking in the presence of the child;
(e)consuming alcohol while the child is in their care; and
(f)using physical discipline with the child.
IT IS NOTED that publication of this judgment under the pseudonym Tait & Hahn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8089 of 2015
| MS TAIT |
Applicant
And
| MR HAHN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders made by the mother of X, born (omitted) 2009 (“X”), now aged 6 years. The respondent father also seeks parenting orders, including an order that X return to New South Wales (“NSW”) with the mother. She has lived all her life in Sydney, until the mother unilaterally moved her to Melbourne in July 2015.
There was no contest about the mother remaining X’s primary carer. The issue was whether X should live with the mother in Sydney or in Melbourne. The mother gave evidence that if the Court determines that X return to live in Sydney, she will return with her.
The mother is 47 years old and is currently a student. She is studying a (studies omitted) at (omitted) University in Victoria on a part- time basis. She currently lives in (omitted) with X. Her parents, sisters and X’s cousins also live in Victoria, and are supportive of her.
The father is 46 years old and is in full-time employment as a (occupation omitted) for the (employer omitted). He currently lives in the former matrimonial home at (omitted) in Sydney. (omitted) is located in (omitted) on the (omitted) of Sydney. It is not accessible by road to the mainland and a ferry is used to get to and from the mainland. The father’s parents, his two sisters, their husbands and children live in Sydney.
The parties reached agreement about property during the hearing. Orders were made by consent, which included provision for the sale of the former matrimonial home at (omitted). The father will be required to find alternative accommodation on the sale of the home.
The parties also agreed about X’s time with the father in the interim period before a determination is made. Orders were made, which provided for X to spend two nights with him in Sydney in December 2015, three nights in Melbourne in January 2016 and two nights in Sydney in Term 1. Telephone, skype, face time, text message or other electronic communication and various restraint orders were also agreed. A notation was made that the parties agree for X to spend seven nights with the father in Sydney in March 2016.
Background
The parties met in Sydney in 1997, and commenced living together in 1998. They married on (omitted) 2008.
The mother asserted that the parties separated on 14 July 2014. This was disputed by the father, who asserted that they separated in January 2015.
On 14 July 2014, the father drove with the mother and X to the mother’s parents’ holiday cabin in (omitted) in rural Victoria. He stayed one week with them. Leading up to this trip the mother’s father had become ill and suffered a number of strokes. The mother told the father that she wanted to spend time with her father before he died. She said that she was not sure how long she would be staying, given the state of his health.
The father agreed for the mother and X to stay in Victoria temporarily. He had telephone communication each night with X. The parties communicated by text message. Without his knowledge, the mother enrolled X in the (omitted) School in May 2014.
On (omitted) 2014, the father travelled to Melbourne to celebrate X’s and the mother’s birthdays, which are only one day apart. He returned to Sydney on (omitted) 2014.
On 30 November 2014, the mother returned to the family home in Sydney with X. The parties spent Christmas together with X, and went to the father’s sister’s home for lunch on Christmas Day.
On 27 January 2015, the mother left the matrimonial home with X and obtained independent rental accommodation at (omitted), Sydney. She asserted that she left the home because of the father’s escalating family violence, substance abuse and suspected amphetamine use.
The father asserted that the parties had a dispute about which school X should attend. Due to financial pressures, he told her they could not afford to send her to (omitted) School (“(omitted)”), unless she returned to work. The father asserted that this was the final catalyst for their separation. He remained living in the matrimonial home on (omitted).
In January 2015, X was enrolled in Kindergarten at (omitted) Primary School (“X”) in (omitted), about five minutes from the mother’s residence.
From 27 January 2015 to 27 June 2015, X spent time with the father on Friday afternoons and every Saturday. In late April, the father’s work shifts changed and he was no longer able to spend time with X on Friday afternoons.
He negotiated with his employer to take one week off during the second week of the Term 2 school holidays. He informed the mother that he had taken a week off work. On 26 June 2015, she sent him an email stating that she was taking X to Melbourne for the second week of the school holidays. He did not read it and became aware that X was leaving when she told him on the telephone on 1 July 2015. This meant that he was unable to spend time with X during the holidays in the time he could take off work.
On 2 July 2015, the mother travelled to Victoria with X. She lived rent free in her parents’ cabin in (omitted), approximately 76 kilometres from the Melbourne CBD. She sent a text message to the father on 2 July and indicated that they were having a holiday in (omitted) visiting family.
On 10 July, the mother sent the father a text message indicating that she needed to stay longer to help with family health issues. On the 15 July, she informed him that X had started at (omitted) School. The father did not consent to X moving permanently to Victoria.
On 3 August 2015, the mother obtained an intervention order (“IVO”) against the father in the Ringwood Magistrates Court. The mother and X were named as affected family members. The first return date of the proceedings was on 29 September 2015. The matter was adjourned until 19 January 2016. The father is contesting the application. On 3 August 2015, the mother commenced a (studies omitted) at (omitted) University.
On 20 August 2015, the father’s solicitors wrote to the mother’s solicitors requesting her to return X immediately to Sydney. They indicated that unless they received a response by 26 August, the father would commence proceedings. They did not receive a response.
Instead, on 27 August, the mother filed her parenting application. The first return date was on 21 October 2015. Judge Riley made orders for X to spend time with the father on the 14 and 15 November in Melbourne and overnight time in Sydney on 21 and 22 November at the home of the paternal grandfather. He did not have telephone communication with X until 18 September 2015, when he commenced communication with her on Mondays, Fridays and on X’s birthday.
On 11 November 2015, the father had a supervised drug test. A negative result was returned. On 19 November 2015, he attended a second supervised drug test with a negative result.
Issues
The issue to be determined is whether it in in X’s best interests for the mother to permanently relocate her residence to Victoria or whether she should live in Sydney.
In issue are the allegations made by the mother about family violence, and drug and alcohol use by the father.
Proposals
The mother proposed that X live with her, and that she be permitted to relocate with X to the Melbourne metropolitan area in Victoria. She proposed that the father spend time with X as follows:
a) In Melbourne on one weekend every month during Victorian school term time from 9:00am Saturday until 4:00pm Sunday, or such times as agreed;
b) In Sydney on two additional weekends during each Victorian school term, from 9:00 am Saturday until 2:00 pm Sunday, or such times as agreed, at the option of the father;
The mother also made proposals for X’s time with the father if the Court decides that X is to reside in NSW as follows:
a) Every alternate weekend from 9:00 Saturday until 4:00 pm Sunday during school terms in 2016;
b) Every alternate weekend from the conclusion of school on Friday until 4:00 pm on Sunday during school terms in 2017;
c) Every alternate weekend from the conclusion of school on Friday until the commencement of school on Monday during school terms in 2018 and every year thereafter, subject to the father’s work commitments and his availability to care for the child on Sunday nights;
The mother made proposals for X’s time with the father during school holidays and on special days.Her detailed proposals are fully set out in Appendix 1 to these Reasons.
The father proposed that the mother relocate X’s residence back to Sydney, specifically the (omitted) area, comprising all suburbs within the local government areas of (omitted) and (omitted) by 8 January 2016. He also sought an order that X be re-enrolled at X at (omitted).
The father did not seek primary care of X should she be returned to live in Sydney. He proposed that she continue to live with the mother, and spend time with him as follows:
a)During the school term, each alternate weekend from after school Friday (or 3:00 pm of not a school day) until before school on Monday (or 9:00 am if not a school day);
He also made proposals regarding holiday time, time on special days. His detailed proposals are set out in Appendix 2 to these Reasons.
Evidence
The mother relied on the following documents:
· Her affidavit filed 27 November 2015;
· Her Financial Statement filed 27 November 2015;
· Affidavit of Ms P filed 27 November 2015;
· Affidavit of Ms M filed 27 November 2015;
· Affidavit of Ms V filed 27 November 2015; and
· The Family Report by Ms L dated 26 November 2015.
The father relied on the following documents:
· His Affidavit filed 30 November 2015;
· His Financial Statement filed 30 November 2015;
· Affidavit of Mr J filed 20 October 2015; and
· The Family Report by Ms L dated 26 November 2015.
Both parties also filed Outline of Case documents.
Family Consultant’s Evidence
Ms L, a psychologist and a family consultant, prepared a Family Report dated 26 November 2015.
Ms L’s observation of the parties was that whilst their relationship lasted 17 years, it was fraught with differing expectations of each parent’s needs and lifestyle choices. Their separation was fuelled by their difference in opinion about financing the mother’s chosen school for X. Also present were underlying issues of loss, due to the mother’s unsuccessful attempts to have more children and the experience of eight miscarriages, and alleged drug and alcohol use by the father.
Ms L also reported that the parties’ perception of a beneficial environment for X differed. The mother saw X remaining in Victoria as contributing to her emotional health, welfare and safety, and to her detachment from the father, his lifestyle, and her frustration with his behaviour. She noted that the mother’s emotional health has been cited by her as a compelling reason to maintain her distance from the father. She is more confident that she is providing a safe haven from “the alleged emotionally maladaptive and drug infused environment”.
The mother believes that staying in Victoria will enhance her emotional health and she will be able to provide more positive parenting to X. Ms L said under cross-examination that the distance between the parties allows the mother to focus on her mental health, and she is “less anxious about looking over her shoulders, thereby having more energy to manage that and to be a better parent”.
The father saw X’s return to NSW together with her mother as contributing to X’s best interests. This will reunite X with him, her familiar environment and her past stability.
Ms L noted under cross-examination that in her assessment of the parties’ relationship post-separation, their energy has gone into managing each other’s alleged faults, as opposed to focusing on the impact that they are having on X. She said that were the mother to be required to return to NSW to live, resentment will increase between the parties, as the mother would have a sense of being trapped.
The mother presented to Ms L a narrative of emotional and financial abuse, which was characterised by intimidation and aggression, stopping short of physical violence. The physical violence that was described in the relationship was focused on damage to the house. Ms L reported that the mother’s emotional demeanour was plausible and congruent with the events which she described.
The mother also raised concerns about leaving X alone in the father’s care. She gave an example of her going out to socialise one night prior to separation. She had left X in the father’s care and on her return she discovered that he was on the couch, allegedly “drunk or stoned”. She reported that during the relationship she became adept at managing risk for X and only left her with the father for short periods of time when in his environment.
The father was adamant in his assertions to Ms L that he was falsely characterised as a substance abusing person. He denied any violence towards the mother, apart from one instance where he agreed he put his palm against a door and it left a handprint. He stated that during the relationship he was optimistic that the couple could work through their issues. However, he said that he became too emotionally drained to do so, due to the mother’s denigration and belittling of him.
The father admitted to smoking cannabis during the relationship and said he continues to do so intermittently. However, Ms L reported that he had undertaken to only smoke cigarettes. He denied any drug addiction and believes the mother’s allegations against him and his extended family are a fabrication.
Ms L reported that it will take time for the mother to build trust in the father, and to no longer respond to triggers in their relationship. She said that ongoing drug screens, to be taken as close as possible to X’s involvement with the father, will help the mother build confidence in his capacity to be a responsive and effective parent. The father is happy to continue undertaking drug screen tests as long as the mother pays for them.
Ms L described the mother’s desire to relocate for family support and to distance herself from the compromised environment she said that she experienced with the father. Ms L questioned whether the mother expected X to adjust to her own requirements, with minimal thought of the impact on X and her relationships. She was also not confident that the mother had given thought to the preparation of X for such a change in her life.
The father disputed that the mother was not supported in NSW. He said that having lived in Sydney for 17 years, she has an established network. He also reported that X lives 76 kilometres away from the mother’s family in Melbourne, and the residence is a converted garage with poor facilities and an outside toilet. In his view, the mother’s relocation has not improved X’s physical environment, or her schooling and community environment. Ms L reported that he sees the mother as headstrong and while he believes she is a good mother, he thinks she is making unilateral decisions about what she wishes in life and not making decisions in X’s best interests.
Under cross-examination, Ms L concluded that the parties were each honest in their account of their experiences throughout the relationship. However, she conceded that she had focused on the mother’s side of the story because she had an emotional response when recounting experiences involving the father. She said the father gave clear and articulate descriptions of how things were in the relationship and how he felt about them. Both parties viewed their experiences differently and “that belief system is a very strong belief system for both parents”. She noted that the Court will be required to weigh the competing importance of the mother’s mental health and X’s happiness, and asserted that there is an integrated and complex interaction between the two factors.
In relation to X, Ms L reported that the distance between the parents’ homes has and will have an ongoing impact on the character of her relationships. She wrote that attachments are more fragile in the early years of their formation. Hence younger children are more vulnerable to disruptions in attachment formation and consolidation. Relocation has an intense impact and it is important to consider X’s age and development.
Ms L reported that X spoke of her parents arguing and stated that she “yelled to stop them arguing”. She said she was annoyed about them arguing. During cross-examination, Ms L said she had gained the impression from X that she had been exposed to “a lot” of conflict between her parents. She “had to withdraw into herself”, as the arguments were quite frightening to her.
Ms L said that for X, more relocations will lead to more dislocation and stress. She and the mother will not be returning to their original home if required to return to NSW. However, during cross-examination, she agreed that no matter the outcome, X will have to move again to a new home. She believed X was a robust child, and that if the move is managed well by both parents, she will be able to cope with the next changes in her life. She said if the move was not managed well, X will take longer to adapt and will become “a little bit insecure”, and would require a lot of reassurance. She agreed that how X copes with these changes will be more dependent on how her parents manage those changes, rather than about the city in which she lives. She said X will “look to her mother to make the change work for her”, and therefore that it would be “advantageous” for X that her mother maintains her emotional health.
She noted that significant travel time and expense for both parents would be needed for the father and X to maintain a secure secondary attachment. This would require the parties to be very open and communicate with each other to facilitate a less disruptive lifestyle for X.
The father spent the day with X just prior to the Family Report interviews. The mother reported that X had been happy to see him. She said that she had noticed a marked improvement in him when he had arrived to spend time with X.
The father reported to Ms L that if the Court allows the mother to stay in Victoria, he will need to use up all of his holiday time to travel to Melbourne to spend time with his daughter. He said that if the mother did return, he would commit to try to mediate and work with her for X’s best interests. He said he will also offer the mother a job working for the (employer omitted), as he has offered her in the past.
X has at her young age been able to compare the different environments in which she has lived. While she reported to Ms L that her mother seemed happier in Victoria, her experiences of her relocation indicated a preference for them to return to her previous home in NSW. Ms L noted that this could be because a return to NSW symbolises a reconciliation of her family for her. Her desire was either to return to (omitted) or to the mainland close to (omitted).
X reported her experience at her current school in Victoria as being marginalised and ignored, with no real friendship group, compared to her friendships and kindergarten time in NSW. Ms L reasoned that X’s desire to return to a familiar school environment may be reflective of the fact that she has had to engage with her current school part way through a school year. She said that school mobility can undermine a child’s capacity to form sustainable relationships. Too many moves often results in children having shallow friendships. This can compromise attachment to peers. She suggested that if X remains in Victoria, her 2016 school year will have fewer upheavals.
Ms L concluded that it is in X’s best interests to remain living with the mother, with whom she observed a clear attachment. X was assessed to have an established relationship with her father, albeit not as strong as with her mother.
If relocation is permitted, she recommended that it is in X’s interests to see her father regularly, and suggested that she could manage a monthly schedule, whereby each parent travels to the other once per month. From her assessment of X and the father, Ms L wrote that X’s relationship with her father can be maintained by seeing him on alternate weekends and school holidays. It was suggested that his pattern could be supplemented by some holiday time, whereby either parent travels to the other to allow X time with the father, as well as Skype and/or telephone communication. Ms L reasoned that the advantage of a monthly schedule is that this will be less disruptive to X’s peer relationships, while allowing the father to have some capacity to engage with some of X’s schooling and peers, and be some part of her life.
During cross examination, Ms L was asked about the mother’s proposal for X’s time with the father on one weekend each month and two extra weekends per school term, meaning around four or five weekends each term. She answered that what is important for the relationship between X and the father is to keep a connection which is important for both of them. She said that time is not always the issue, it is the way they connect, “a variety of interactions is what actually supports relationships.”
During cross-examination by Counsel for the mother in relation to the father’s school holiday time proposal, Ms L said:
“X would not cope with a three week block away from her mother and she has not built up that security with her dad for the overnights – that’s not to say she couldn’t see him on a daily basis, but she would not be able to be that long away from her mother. Most children don’t cope with such long blocks. They tend to cope with week-about when they are of an older school age, of eight or nine. She would feel abandoned by her mother and she would feel that her father was not letting her go home to her mother, which may impact upon the relationship between X and her dad because she might get upset and resentful and maybe start refusing to go again”.
Ms L agreed that the mother’s proposal, which involves a gradual build-up of X’s time with the father to a full week of holiday time, was more “developmentally appropriate” compared to a three week block of time. She also gave evidence that the father’s proposal to spend time with X for the whole of her school holidays, if residing in Victoria, was “developmentally inappropriate”, and would result in X experiencing “such a split life that she can’t integrate”. She said that at this stage of development, X’s time with her father is really about the quality of time, and not just about the quantity.
During cross-examination, Ms L conceded that a full week of holiday time for X with the father could start immediately if he is still living in the former matrimonial home on (omitted), and if he were available to be with her at all times. She said X would cope with this, because she would be returning to a familiar environment. By the 2016/2017 school holidays, X would be able to cope with a week-about arrangement, which would allow her to spend quality holiday time with both parents.
Ms L’s report was comprehensive and her evidence was helpful. I take into account her evidence and recommendations when considering what is in the best interests of X, although this is not determinative and must be weighed against all other evidence.[1]
[1] Hall & Hall (1979) FLC 90-713.
The parties and their Witnesses
The mother presented as anxious when giving her evidence. She was negative about the father. Some aspects of her evidence were unsatisfactory and could not be accepted.
The father presented as angry and bitter about how the mother had deceived him about the move to Melbourne and how the move affected his relationship with X. He feels aggrieved about the accusations that the mother has made about him, and feels that she has not been made accountable for her actions.
He made concessions about his marijuana use and his verbal abuse and swearing at the mother, however I could not accept some aspects of his evidence.
I do not consider that this is a matter where the parties told deliberate untruths; rather they have different interpretations about what has happened during their relationship. They had different expectations about each other’s needs and lifestyle choices, as indicated by the Family Consultant. The mother believes that the father has a drug and alcohol addiction. He continued to smoke cannabis and drink alcohol after X was born, whilst she stopped smoking cannabis and reduced her alcohol consumption after her birth. The father drinks alcohol and smokes cannabis at home alone and not only in a social setting, but he does not believe he has a problem with addiction. This is not a matter where I dismiss all the evidence of one party. Instead, I will consider the probative force and make findings on the facts in respect of disputed issues.
The paternal grandfather demonstrated his support for his son and the mother during their relationship.
The mother’s two sisters demonstrated their support for the mother and X, whom they both see on a weekly basis.
Discussion
The mother’s evidence about the date of separation is an example of her unsatisfactory evidence. I do not accept that the separation occurred in 2014.
The parties were having fertility treatment in May/June 2014. They drove together to Melbourne with X in July 2014. The father visited them for a week in September 2014. The mother collected him at the airport and they spent a week driving around the (omitted).
The mother agreed that on the signed and dated application for X’s admission to (omitted) School in August 2014, she explained her status as “married”. The options on the form to explain the family situation included “separated”.[2] In contrast, in December 2014, she asked what the fees would be, if holding a health care card and a single parent’s pension.[3]
[2] Exhibit F3.
[3] Exhibit F5.
In correspondence between the Registrar of (omitted) School and an administrative officer, a note was made on 24 September 2014, “I wanted to confirm X’s situation. She is coming into KG for one term only as she is in a (omitted) School in New South Wales but down in Vic until the end of the year visiting family… Offered a place”.[4]
[4] Exhibit F4.
The mother agreed that the father believed that the marriage was still on foot when she was in Melbourne and that he was expecting her and X to return to Sydney at the end of November 2014.
She did return to Sydney and to the matrimonial home in November 2014. Within three days of her return, the parties argued about X attending (omitted) school, as it would cost $10,000 a year and the father no longer wanted her to attend a (omitted) school. The mother agreed that she refused to go back to work and said that he should get a second job. After this argument the father moved into a spare room. They did not reconcile, although they spent Christmas together as a family.
Within days of the argument about (omitted) school, the mother contacted (omitted) School in Melbourne on 9 December 2014 and asked if it was possible to enrol X for the following year (2015). They offered her a place, but needed to know by 17 December 2014 whether X would take the place. On 17 December 2014, she agreed that she wrote an email to the school, indicating that she decided to stay in Sydney. She agreed that she was not intending to relocate at that stage. She wrote that the father would not agree for X to move permanently from Sydney without him and it would be a battle that she did not want to have.
In my view the parties did not separate in July 2014. They separated after the argument about X’s school in December 2014. The mother left the home on 27 January 2015.
The Mother’s Unilateral Move
The mother’s evidence about her move to Melbourne is one inquiry among many in deciding the ultimate question of what is in X’s best interests. Her evidence demonstrated that she was deceptive about the move.
She was planning to move to Melbourne with X from between 30 November 2014 and 27 January 2015. She sought legal advice during this time about her desire to move to Melbourne.
On 27 January 2015, she sent an email to (omitted) School. She indicated that she was working towards a return to Melbourne. She wrote “if an opportunity for (omitted) class presents itself this year, being 2015, any time, please let me know. If we can’t manage to this year I would like to apply for class one in 2016. I will work hard to pay for it.” She received a response on 29 January 2015 to indicate that they had a place for X, but she did not have to start the following week and they would keep a place open for her.[5]
[5] Exhibit F6.
In the meantime, X was enrolled in school at (omitted), where she attended for two terms.
The mother agreed that she contacted (omitted) School again on 10 March 2015. She indicated that legal proceedings were only just beginning and she will therefore be staying another term. She wrote “I will message you again early next term or as soon as I have consent to leave”.
She agreed that in late April 2015, the father’s shifts changed and he was not able to spend time with X on Friday afternoons. She agreed that on 26 May, he contacted her and told her that he was able to take a day off to collect X from school. He spoke to X about the arrangements. On that evening the mother emailed him to inform him that he was to leave X alone and to work out the arrangements with her only. She wrote “do not change arrangements without consulting me first” and “do not expect extra days and times because your shifts change. I am not running life according to yours”.
She agreed that at the end of May she paid a bond for the (omitted) School. She signed an enrolment form for X to start Prep on the 13 July 2015. She wrote to the school on 10 June “Hi (omitted), just letting you know I paid the bond last week and attached is the enrolment form. Hope you’re well and we look forward to seeing you smiling through the window very soon”. Her explanation for not telling the father about the enrolment was, “I was in danger at that time. In danger of his abuse”.
The mother agreed that she knew that she had to consult the father and could not leave without him agreeing for X to leave the State. She agreed that she knew that he would not consent to X moving to Melbourne, as her life was in Sydney and that was the only place that she knew as her home.
The mother agreed that she told him that she was going to Melbourne for the school holidays. She did not tell him that she was moving. She wrote on the last day of term saying “I’m taking X to Melbourne for the second week of the school holidays. We’ll be staying at (omitted) and going to the snow at (omitted). We are house sitting at (omitted) at (omitted) until then”.
She agreed that X only knew that she was going for a holiday to Melbourne at that stage. She agreed that X had a really positive report from X in Sydney. She was a student representative and had friends at the school and was going really well.
After the mother and X went to Melbourne, the father sent her a text “is X okay? Have you arrived safely? As X’s dad, do you seriously think it’s okay I don’t know if my daughter is okay? No phone call, no text, nothing”.
The mother accepted that he was concerned. She sent a text saying “we’ve arrived in (omitted). X is well”. She agreed that he did not get a chance to talk to X on that day and two days later he wrote “I’ve had a two minute conversation with X since Thursday. Any chance of me talking to my daughter?”
She sent him a text the next day saying “X would like to call you tomorrow.” On 10 July she wrote “I need to stay longer to help with the family issues. X is happy. She has school next week, so I’ll look for a school not far from the cabin and inform X.” She did not tell the father that she had already enrolled her in (omitted) School in May.
He responded “is everything okay? How long are you staying? When can I talk to X?” On 10 July she wrote “dad’s health has deteriorated. X doesn’t know. I don’t want to worry her. And (omitted) has broken her foot. She needs help with the baby. Not sure how long. Will call when we get to town.” The father responded “please call when you can. And I hope your dad is getting better. I can understand it’s not a pleasant situation. Please that we know how your dad is and what’s your plan. I’m trying to see your perspective. I can only wish you could see mine.”
The mother responded “look, X started at (omitted) school. No news about dad. I’m planning on staying for a while, so I’m looking for longer – term accommodation now. X has been notified. Please call an earlier… As the reception is terrible here. I’ll let her know you called.”
In the midst of the move, the parties had been attending mediation through Relationships Australia. The mother said that she initiated mediation in March 2015 and they both did intakes and attended the information sessions. She agreed a mediation session was due on 23 July. The father wrote “Ms Tait, we need to do mediation re X. I have agreed to follow it through. You need to realise I have a say my daughter’s life, and I have a right to be a big part of it. Your sudden decision – making has had a huge negative impact on my life. There is mediation on 23 July.”
The father wrote to her on 22 July 2015, and asked when X was coming home and when they were going to do mediation. On 22 July, she replied to him “as I explained, our stay is indefinite. Relationships Australia will be in touch re mediation. I will send a memo reiterating this.” He answered, “I have every right to be with my daughter, and I’ve been told you just cannot take her interstate without my consent. You do not have my consent. And for a parenting plan to be put in place where I have access to my daughter, your communication has made this worse. You are in (omitted) and your family is in Melbourne. X’s dad is in Sydney. I have a right to see my daughter. Did you not do the course mediation you made me do?”
The mother did not attend mediation on 23 July. It was deferred to 11 August after she requested telephone mediation. She said that once the IVO was obtained, the mediation was cancelled.
On 25 July the father texted the mother “I want X back in Sydney next week. We have mediation.” The mother responded “don’t worry about it. X will call you in half an hour.”
The mother received some advice from (omitted) Domestic Violence Service to obtain an IVO. She agreed that the father texted her on 1 August, “when can I see my daughter?” She responded “when can you come down?” Two days later she obtained an IVO, which included X as an affected person. She had applied for the order on 3 August. In the application, she alleged that she was at risk of family violence and the father was going to be coming to her home. She agreed that one of the reasons she gave for needing the order was because the father asked X for her exact address. She said that she felt immediately threatened and feared for her safety.
This evidence indicates that the mother planned the move and was deceptive about it, because she knew the father would not agree for X to move.
She said that she moved to Melbourne primarily due to her untenable financial situation and safety concerns.[6] She said that it is better for X to live in Melbourne because:
“we are away from the daily abuse that we received in Sydney. It’s better for X because I can as a sole parent afford a two-bedroom home, she can see her mum that’s not on a couch every day which is what I had in (omitted). It’s better for X because she surrounded by my family who love and support me, and when they come to her extracurricular activities they’re actually engaged rather than standing at the back door and not willing to come in… It’s better for X because it is better for me psychologically. I’m not surrounded by this daily abuse from her father which means that she doesn’t experience stress that’s associated with that.”
[6] Mother’s affidavit filed 27 November 2015, at para 53.
She was “in a constant state of nervous tension, suffered extreme anxiety and other stress-related symptoms such as nausea, hair loss and severe headaches. My physical and mental health were significantly impacted and I had no family and few friends to support me.” She said that this related to the last six years. She said “as the abuse coming from Mr Hahn and the tension in the home increased, so did my anxiety and symptoms of that was hair loss, headaches. The nausea I experienced quite a lot in the relationship and the tension I experienced with Mr Hahn was on a daily basis.”
The mother had been seeing her general practitioner Dr S in Sydney for many years. He did not give evidence about her presenting with these stress-related symptoms, when she was living in Sydney. She agreed that there was nothing in his medical records about stress-related symptoms, except in 2004, before X was born and before she was married. There was also a note about patches of alopecia in 2004. There was nothing relating to the father.
Following her return from Melbourne in November 2014, she was referred to Victim Services by Relationships Australia. She commenced seeing a psychologist, Ms E. She said that she diagnosed her as having post-traumatic stress disorder.
During cross-examination, she produced a report dated 26 May 2015.[7] It was unclear when she had attended appointments, and how many sessions she had. The report indicated that she attended one session, yet it also indicated that 6 hours had been used.
[7] Exhibit M4.
Ms E did not give evidence and was not cross-examined. Nevertheless, the report is helpful in that it indicated that the mother presented with post-traumatic stress symptoms, but was not diagnosed with post-traumatic stress disorder. There were no child protection risk factors or serious domestic violence risk factors indicated.
I am not persuaded by the mother’s allegation that X suffered from stress-related symptoms whilst living in Sydney from an early age, due to the environment they were living in. She said that she took her to Dr S for anxiety, stress and headaches.
In the subpoenaed medical records, there were notes of six visits between 2011 and 2013 of the mother alone or with the father, and another five visits with X. There was nothing in Dr S’s file notes about X’s alleged stress-related symptoms or treatment for them.
However, it is likely that prior to separation, X had been anxious from hearing her parents’ arguments and from being exposed to their conflict. After separation, she was also no doubt unhappy about her parents separating. The mother said that X was having headaches, nightmares and was very attached to her. She said, “I saw no other option at the time than to come to Melbourne, to get away from the situation I was in and seek the assistance and support of my family”.[8]
[8] Mother’s affidavit filed 27 November 2015, at para 53.
On 11 September 2015 in Melbourne, she took X to Dr O. His notes referred to the mother reporting “continual upper respiratory infections last year” and “family break up over past year. Stress +++. X not happy at home or school (bullying)”.[9]
[9] Exhibit F9.
The parties were living in a stressful environment leading up to separation. They were in serious financial difficulties and were involved in conflict, yelling at each other and frightening X.
I consider that whilst the mother has exaggerated the extent of her symptoms prior to the move, it is likely that she was stressed prior to separation and leading up to the move. She was living in a small one bedroom unit, which was unsuitable for X.
Family violence allegations
In support of her allegations about family violence, the mother referred to an incident in 2005. She alleged that the father threw a punch at her and missed, causing a hole in the bedroom door.
Another incident occurred in 2011. She alleged that the father cornered her in the bathroom, shouting at her, causing her to cower from him.
She alleged that on other occasions he broke furniture, including her dressing table, and a coffee table. He also damaged a pram. During fits of rage, he called her a “fucking bitch” and put her down and called her stupid. During cross-examination, she said he thumped his fist on two occasions onto furniture and broke it. She said he showed explosive behaviour on a daily basis. This grew in time over the relationship. She alleged that in January 2015, he verbally abused her when arguing about arrangements for X and her schooling.
The mother told the Family Consultant that there would be an argument or a physical explosion, which cycled into remorsefulness and an apology. The cycle was repeated often and was eroding her self-esteem during the relationship. She said that the father was aggressive towards her and gave an example of him threatening her by “placing his fists up to her head” and often slamming doors and threatening to take X from her. She also alleged that there were occasions when he had bruised X’s arms and exposed her to his anger.
She said that she attended Dr H about her difficulties in conceiving a child and about family violence. She attended her to obtain a mammogram and pap smear referral on 28 February 2013. The medical notes of Dr H for 28 February 2013 read, “Opened up about relationship issues with the partner and stated she encounters verbal and emotional abuse from her partner. He has never been physically abusive towards her, although she can be afraid of the possibility of this happening. She is thinking of separating”. She was given the domestic violence phone line and urged to phone for counselling. She was told to call the police if she had fears for her safety.
Dr S assisted the parties with counselling once in 2012 and once in 2013. The notes for July 2013 read, “Patchy. Many unresolved issues.” There were notes of six visits between 2011 and 2013 by the mother alone or with the father, and another five visits with X. There was no record about her discussing any allegations of violence or the father’s alleged drug and alcohol abuse.
In Melbourne, when she consulted Dr O with X on 11 September 2015, she did not speak to him about any issue of family violence involving X.
The mother alleged that the father controlled all the finances, leaving insufficient funds in the joint accounts to meet their basic needs. She agreed that she had access to the bank account into which his salary was going. She had five credit cards in her name, which she used to pay for living expenses.
In his affidavit, the father denied that he has raised his fists to the mother, sworn at her or accused her of not being a fit mother or homemaker. He acknowledged that they had arguments towards the end of the relationship, but he said he was never aggressive towards her. He also denied that he exhibited control over the family finances. The mother has always had access to all of their credit cards and to their mortgage offset account during the relationship.
He did not dispute that X heard some of the arguing, although he tried not to argue in front of her. He denied that he raised his fist and hit the dressing table and cracked the top of it. He denied that he raised his fist to hit the coffee table and caused a crack in it. He does not believe that these items of furniture were damaged.
In his affidavit, he said that in 2005, he pushed the door open with the palm of his hand, not realising it was shut, causing a small hole in it. He told the Family Consultant that he put his palm against the door and it left a handprint. During cross-examination, he said he pushed the door in the middle and with the momentum of the push, he caused a small hole. He did not punch a hole in the door. The door was a little bit tougher than balsa wood. The mother was nowhere near the door. She was in the kitchen. He had walked into the bedroom to get away from an argument.
He could not recall an argument in 2011 in the bathroom, but he recalled an argument in 2005. He again denied that he broke furniture in the house.
During cross-examination, he did not deny that he has sworn at the mother and verbally abused her during arguments. He was sure that this went both ways. He could not recall an argument on the day after they separated about financial issues and about X’s school. It was suggested to him that he called the mother “a total fucking bitch.” He could not remember, but said it was possible. He agreed that is how he felt about her after she had left and about the things she had done.
He acknowledged that it was upsetting for both of them not to be able to conceive a second child and that the mother had miscarriages. He said that he was very supportive towards her and consoled her after these events, which were always heartbreaking and very difficult for both of them. He denied that he ever said “put up and shut up”.
He said that the mother’s intervention order application primarily relied upon her account of a telephone conversation he had with X on 25 July 2015, which was an hour long in duration. During that call, he asked her about school, her (hobby omitted) and living in the cabin in (omitted). He denied that he repeated the address of the cabin five times and denied that he engaged in any behaviour which caused the mother to feel threatened, intimidated or manipulated.
X gave him the address of the cabin and repeated it several times. He did not ask for the address repeatedly, as he had been there before. He said that was “the most gobsmacking thing about the interim order, the fact that she is now saying that she was scared because I knew where she was. I know where that cabin is… I’ve been to that cabin more times than I could possibly remember.”
On 1 August 2015, he sent her a text asking when could he see X. She answered, “when can you come down”? He told her that he was “not coming down.” He never had an intention of going to Melbourne.
During cross examination, he conceded that he repeated the address once. He repeated the address, “because I was just… talking to X for an hour. There was a lot of things that we say.” He said that he “was just having a very long chat with my daughter, and when that you talk to X on the phone with the mother listening, it does make it very awkward from me in the sense that I can’t tell X anything that is going on in my life.”
It was suggested to him that the mother interpreted his repetition of the address as a message to her that he was coming to the cabin. His answer was that she had taken this the wrong way.
Ms V, the mother’s sister gave evidence that at a dinner at her parents’ home in September 2014, the father made some derogatory comments about the mother. She said that he would either cut her off when speaking or give her a look conveying that she had to be quiet.
The father denied that he spoke about the mother in a derogatory way or engaged in conduct that belittled or intimidated her. The paternal grandfather gave evidence that he never observed his son putting the mother down or criticising her. Conversely, he heard her put him down. On occasions at family gatherings, he heard her say words to the following effect, “you’re always asleep” or “you’re useless.”
Ms P, a friend of the mother, gave evidence that she observed the father’s anger on one occasion when X was six months old. She was walking with the mother and X. It had been agreed that he would collect them. When they arrived at the collection point, she witnessed him driving up and down the road in a furious state. She said he verbally abused them for taking too long. She said she was scared of him due to his behaviour, body language and words used. She said that the mother put X in the car whilst he attempted to fold the pram and place it in the boot of the car. When folding it down, he threw it to the ground with such force that it broke. She said that his violence was terrifying to her.
Ms P’s evidence was not challenged by the father. He agreed that he was very impatient to get home. He was very frustrated because they were going to a function and were running late. He denied that he yelled at the mother and denied that he threw the pram to the ground and broke it. He said that Ms P exaggerated what happened.
He said that he does not hate the mother, but is very angry with her for deceiving him and lying to him and to X. She has made accusations against him which are false, and he is upset and angry about this. He has been referred to as “an Ice addict and a wife basher. I’ve had my daughter taken away from me. I’ve had these accusations levelled against me. I now hear what suffering my daughter has gone through…”He believes that he could manage this anger if the mother and X live in Sydney.
The father denied that he has ever been physically or verbally abusive towards X. He loves his daughter dearly and would never do anything to endanger or frighten her. The paternal grandfather gave evidence that he has never seen his son being aggressive towards X. From his observations, he is a very caring and affectionate father.
Conclusion about Family Violence
There has been conflict and arguments between the parties. The father conceded that he may have sworn at the mother. X told the Family Consultant that their arguments frightened her.
There were infrequent incidents over a long period of the marriage. The conflict and arguments increased towards the end of the marriage. I do not accept the father’s evidence that there was no physical damage to furniture, or about how he damaged a bedroom door. I consider that it is likely that he broke furniture on several occasions. I am not persuaded that he threw a punch at the mother, missed and punched the door. I consider that he hit the door and made a hole in it, as a result of his frustration during an argument in 2005. I accept the evidence of Ms P that he broke X’s pram when he threw it down, in anger and frustration about the mother being late.
The father has displayed a temper on occasions. I accept the mother’s evidence that he has verbally abused her. She told Dr H in 2013 that he had never been physically abusive to her, but she encounters verbal and emotional abuse from him. Verbal aggression and damage to furniture is likely to have made the mother feel intimidated and I accept that she felt intimidated by him on occasions.
However, I do not accept her evidence that he has physically or verbally abused X.
In respect of the application for an IVO, even though the father had told the mother that he was not coming to Melbourne, I consider that after he repeated the cabin address, it is likely that the mother was fearful about him coming to the cabin. She knew that he did not agree for X to live in Melbourne, and wanted her return to Sydney. It is likely he was upset and angry. The IVO prevented him from approaching the cabin.
Allegations about drug and alcohol use
The mother alleged the father uses marijuana on a daily basis. She also alleged that he has had a longstanding issue with alcohol and regularly consumes alcohol to excess. She alleged that he drinks on week days, when doing 12 hour shifts and on weekends. She said that he can hold a senior position at (employer omitted), even though he is an “Ice” user, a marijuana user and an excessive user of alcohol.
The mother’s two sisters gave evidence about his use of marijuana and consumption of alcohol prior to X’s birth. Ms M gave evidence that she believed that he was intoxicated during an hour-long telephone conversation in 2012, when he was home alone with X one evening. The father admitted that he had a few beers whilst talking to her, but denied that he was intoxicated. He said that X was asleep during this telephone call.
Ms V gave evidence of him at drinking heavily on one occasion in 2013 and going out to his shed frequently for “hits”. The father acknowledged that he engaged in recreational use of marijuana at social events, but said that he does not smoke marijuana on a regular basis. The parties had smoked marijuana together in the past at social events. He smoked it in his shed from time to time.
He denied that he has smoked marijuana in front of X and is aware that he should not expose a young child to use of illicit substances. He told the Family Consultant that he smokes marijuana occasionally and the last time he smoked it was on 15 August 2015. He told her that his use had diminished after having X and it is now sporadic. He does not believe that he had a problem in the past. He said it became a problem for the mother when she got pregnant and she wanted him to stop smoking and drinking. He denied that they ever discussed drug and alcohol rehabilitation. He denied that he requires this intervention. He has provided negative results from two random drug screens since 15 August 2015.
He denied that he drove his boat under the influence of drugs or alcohol, as alleged. He denied that family functions were “fuelled by drugs and alcohol”. He said that the mother always appeared to enjoy family functions. He denied that his family consumed drugs or drank alcohol to excess. He would often have to leave for work after family gatherings, so would not drink at all.
The mother believes that he is using “Ice” because a friend asked her if he was using, as he was borrowing money and was associated with known users. She said that there was a decline in his appearance and he was distant, erratic and unpredictable.
He denied that he has ever used the drug “Ice” or that “Ice” paraphernalia or any illicit drugs have ever been kept at their home. He admitted that he once tried growing some marijuana in a pot approximately five years ago. He has never used ecstasy at any time during the relationship, but admitted that he tried it when he was younger. He admitted that he took cocaine recreationally, the last time at a party in around 2000.
He admitted that he often looks tired because he works nightshift and comes home from work in the early hours the morning. He often does not have sufficient sleep as he was often woken by X at 6:00 am. Due to his work, he does not have the opportunity to socialise during the week and never consumes alcohol after his shifts. He denied that he was ever hungover on the morning after finishing his shift. On weekends he rarely consumes alcohol and generally only on social occasions. He denied that he has had a problem with alcohol abuse in the past. He lost his license for drink driving once in 1988.
The paternal grandfather was shocked by the mother’s assertion that there was drug taking at family gatherings. He refuted that anyone in his house took drugs or were drug affected during family functions. He has never observed members of his family taking illicit drugs.
He did not observe the father drinking alcohol to excess at family gatherings. He often had to go to work after a family function and more often than not would only drink soft drinks. At most, he would have a couple of beers. He never observed him behaving aggressively after drinking, or at any time.
He said that he enjoys a few drinks on social occasions. His wife does not drink at all. His daughters and their husbands will have between one and three glasses of alcohol during family gatherings. Usually one partner will not drink at all, due to the need to drive.
There is no basis for the mother’s allegation about the father using the drug “Ice”. He drinks alcohol and smokes marijuana on social occasions and at home. However, I am not persuaded that he drinks and uses marijuana to the extent alleged by the mother.
I am not persuaded that he has placed X at risk of harm as a result of his consumption. However, as the Family Consultant indicated, it is in X’s best interests to have a responsive parent and he should desist from any drug use when X is in his care.
Relevant Law
This matter involves a dispute about the place of X’s residence after a unilateral relocation of her residence by the mother from Sydney to Melbourne. Relocation cases are recognised by many decisions as being very difficult.
A relocation of residence can have consequences for children in respect of their relationships with the remaining parent. Issues about travel and expense for children to maintain a meaningful relationship with the remaining parent often arise. As in this matter, a move can result in a sense of grievance by the parent left behind.
In AMS v AIF, Kirby J noted:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To that extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. [footnotes omitted][10]
[10] (1999) 199 CLR 160, at 145.
The parent wishing to move does not need to demonstrate compelling reasons and does not need to convince the Court for the proposed relocation. The issue of relocation should not to be treated as a separate issue, but as one of the proposals for X’s future living arrangements.[11]
[11] Taylor & Barker [2007] FamCA 1246, Duggan & Duggan [2009] FamCAFC 115, Heaton & Heaton [2012] FamCAFC 139.
In determining this matter, X’s best interests are the paramount consideration.[12] The parties’ competing proposals will be considered against the criteria in s.60CC of the Family Law Act 1975 (“the Act”), informed by s.60B. If the presumption of equal shared parental responsibility applies, the consequences of an order for such must be considered. Section 60B provides as follows:
(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.
[12] Family Law Act 1975 (Cth), s.60CA.
(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)
The Court must consider the advantages and disadvantages of the parties’ proposals. X’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.[13] However, X’s best interests remain the paramount consideration.
[13] Morgan & Miles (2007) FLC 93-343.
The Child’s Best Interests
In determining X’s best interests, the court must consider the matters set out in S.60CC(2) and (3). I shall now turn to address these considerations.
Section 60CC(2)(a)
Section 60CC(2)(a) provides that, when considering the best interests of a child, the court is required to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed by s.60B(1)(a).
The term “meaningful” is not defined in the legislation but it has been the subject of a number of judgments. In Mazorski v Albright,[14] Brown J considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[15]
[14] (2007) 37 Fam LR 518.
[15] Ibid at 526-527.
The preferred approach to this consideration is to consider the prospective benefit to the child of having a meaningful relationship with his or her parents.[16]
[16] McCall & Clark (2009) FLC 93-405, at para 119.
The Family Consultant said that it is important for a child to keep a connection with each parent, which is important for both the child and the parent. She gave an example of doing something special with a child, which they remember in the future as something they did with that parent. This provides a psychological connection, whether the parent is present or not. She said that a variety of interactions supports relationships. Such interaction includes physical visits, gifts, letters, telephone, Skype and video conferencing.
X has a close and loving relationship with the mother. The father told the Family Consultant that she is a good mother and loves X.
X has a close and loving relationship with the father, whom she affectionately addresses as “my daddy”. The mother acknowledged that X has a well-established bond with her father and will benefit from having a meaningful relationship with both her parents.
I consider that it will be of benefit to X to have a meaningful relationship with both her parents.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that, when determining the best interests of a child, the Court is required to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
X told the Family Consultant about her parents arguing. She said that she “yelled to stop them arguing” and was annoyed about them arguing. The Family Consultant gained the impression from X that she had been exposed to “a lot” of conflict between her parents. She “had to withdraw into herself”, as the arguments were quite frightening to her.
The parties’ marriage was difficult and their inability to have more children and the experiences of eight miscarriages may have contributed to what the Family Consultant described as “the highly charged and unhappy family environment.”
X needs to be protected from exposure to any further conflict or verbal abuse between the parties.
Section 60CC(2A)
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b), the Court is to “give greater weight to the consideration set out in paragraph (2)(b)”.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X was described by the Family Consultant as articulate and confident. She was able to describe her life with her parents. She reported that from her assessment of X, her experience of her relocation indicated a preference for her to return to her previous home. Her desire was either to return to (omitted) or on the mainland close to (omitted). Her experience at her current school was of being marginalised and ignored with no real friendship group compared to her friendships and Kindergarten time in NSW.
The Family Consultant said that X’s desire is for her parents to change. She would like a mother to be strong and the father to move to the mainland. She harbours a need to return to NSW because it symbolises a reconciliation for her. She sees her mum as being much happier now than she was in NSW and stated that “dad is happier, maybe not really happy.”
During cross-examination, the Family Consultant agreed with the suggestion of Counsel for the mother that X’s homesickness is for her family to be together, rather than for a specific geographical preference about where she lives. She said that “she harbours a need for mum and dad to reconcile, as long as they change and not argue.” She said that X wants that connection back again and it is understandable at her age that she would like that for her parents.
The father gave evidence that from July 2014, he continued to have telephone contact with X. She would repeatedly say to him “I miss you daddy” and “love you my daddy.” When he told her that he would be coming to visit for her birthday in (omitted) 2014 X told him “I can’t wait to see you my daddy”. When the mother and X met him at the airport, she was very excited to see him. She yelled “daddy” and ran up to him and gave him a huge hug. She did not stop talking all the way in the car on the drive to (omitted).
X expressed the view to her father that she did not like her school and that she did not like living in the cabin in (omitted). She told him that the kids were mean to her and she wanted to go back to (omitted) school. The cabin was squishy and Melbourne was boring. She asked whether she could live back in Sydney with him and her mother.
The father gave evidence that when he went to Melbourne on the 14 and 15 November, he and X had a lovely time together. When she went to Sydney on 21 November, he said that she happily left her mother and said goodbye to her. She did not appear anxious or upset about leaving her. They drove to his parents’ home and she played with her cousins happily. When it was time for her to leave on Sunday, X said she wanted to stay. The father was not challenged about this evidence.
X is young, being six years old. I take into account her expressed views, but do not place weight on them, in view of the Family Consultant’s evidence that her desire to return to NSW symbolises a reconciliation of the family.
Section 60CC(3)(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);
X has a close and loving relationship with her mother, who has been her primary carer since her birth. The Family Consultant observed that X’s clear attachment is to her. She also has a close and loving relationship with the father. X was assessed to have an established relationship with him, albeit not as strong as with her mother.
X has a close relationship with the paternal and maternal extended families.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father said that he took X to (hobby omitted) lessons each week from the time she was two years old, until 27 June 2015. X also commenced taking (hobby omitted) classes when she was about three years old and he often took her to these classes as well, which were also on Saturday mornings. They often visited his family (his parents, two sisters, their partners and children) after her Saturday morning activities. This enabled X to spend time with her cousins, A and N.
After separation, the father continued to take X to her Saturday morning activities of (hobbies omitted) and then visit his parents. X spent time with his family, including her cousins.
After separation, the father asked the mother for X to stay with him overnight. She responded that she did not want X staying on the (omitted) with him. He then proposed that X stay with him at his parents’ home. The mother refused this request and said “X needs her mummy.”
In April 2015, the father’s work shifts changed and he was no longer able to spend time with X on Friday afternoons. He told the mother that he was trying to change a shift back so he could spend that time with her. On 26 May 2015, he was able to negotiate a day off for the upcoming Friday. He spoke to X that night and told her that he could pick her up after school. X was happy about that.
Later that night the mother emailed him and told him “… Do not change arrangements without consulting me first and do not expect extra days and time because your shifts change. I’m not running life according to yours.”
The father was unable to spend time with X during the July 2015 school holidays. During cross-examination, he accepted that the mother did not know until the day before she left, that he had taken a week off work to spend time with X at the same time she was taking X to Melbourne.
Between 3 July and 22 July 2015, the father had spasmodic telephone communication with X. He believes that the mother restricted X’s relationship with him and this also impacted upon her relationship with his family.
After obtaining the IVO, the mother contacted him on 13 and 31 August, and on 5 September 2015 offering for him to communicate with X.
I have had regard to the parties’ competing proposals. Each party sought that X live with the mother in the city in which they currently live. There was no evidence that the father is prepared to move to Melbourne. His family live in Sydney. He is employed in Sydney. He has worked for 28 years with his current employer in Sydney. He does not believe he could obtain employment in Melbourne. The mother does not want to move back to the (omitted) area of Sydney, but in the event that I order that X live there, she has indicated that she will return with X to be her primary carer.
I consider that it is not in X’s best interests to spend equal time with each parent. The mother is her primary carer and has a close attachment with her. Equal time would not be reasonably practicable even if the parties lived in close geographic proximity. The father works full-time with shift work, which means that he could not implement such an arrangement.
Substantial and significant time includes include time at weekends, during the week, during holidays and special days. Such time allows a parent to be involved in a child’s daily routine and in occasions and events of particular significance to a child. I consider that it would be in X’s best interests to spend substantial and significant time with each party, and such time would be reasonably practicable if the parties lived geographically proximate.
However, I consider that it is in the best interests of X that she lives with the mother and she be permitted to relocate her residence to Melbourne. I consider the benefits of her living with the mother in Melbourne outweigh the benefits of her living with the mother in Sydney. The mother will have support from her family in Melbourne. She is likely to be happier there, which is likely to enhance her parenting capacity. Rental accommodation is more affordable for her. She can complete her (omitted) course and believes she can earn some part-time income. X and the father will be able to continue to have a meaningful or an “important, significant and valuable” relationship by spending regular weekend and holiday time together and by having telephone and other communication.
This has been a difficult and finely balanced matter, as is often the case with relocation applications. There will be much disappointment for the father. He believes that the mother should be brought to account for the deceptive way she moved X to Melbourne. However, the ultimate issue for this Court is the best interests of X and not to bring the mother to account or punish her.
The father proposed that X spend time with him on two weekends each term, in Sydney on the fourth weekend of each term and in Melbourne on the seventh weekend. He also proposed that X spend all the term holidays with him in Sydney and one half of the summer holidays with him in Sydney.
I am of the view that it is in X’s best interests to spend two weekends per term in Sydney and one weekend per month in Melbourne at the option of the father. The weekends in Sydney can occur on the fourth and seventh weekend of each term in accordance with the father’s proposal. This will mean that there will be around two trips each term for X and the mother to travel and around two-three trips each term for the father. The length of the school terms vary from around eight to eleven weeks.
Having regard to the relevant factors under s.60CC, I consider that the mother should pay her own travel costs and the parties should share X’s travel costs to Sydney. For the travel to Melbourne, the father should pay the travel and accommodation costs. The time in Melbourne is to occur from after school on Friday (or 3.00pm if not a school day) until 5:00pm Sunday. This will enable the father to have some capacity to engage with X’s schooling and peers.
For the time in Sydney, X shall depart no later than 5:00pm on Friday and depart no later than 5:00pm on Sunday. This time should mean that X will not miss school and not arrive home too late on Sunday.
The parties agreed for X to spend time with the father in Sydney from 25 March 2016 for a period of seven days and nights. The father agreed to return X to the mother for the day, if X becomes upset. X and the mother will have telephone time during the week. I do not consider that X’s time with the father should be disrupted by returning X to the mother for a day and night in the middle of the time, as proposed by her.
I agree with the Family Consultant that it would not be appropriate for X to spend all the holiday periods in Sydney. During the term school holidays, I consider that X should spend one half of the holidays with each parent, the first half with the father in 2016; and the second half in 2017 and each alternate year thereafter, unless otherwise agreed. The means that Easter with each parent in Term I holidays will be alternated. I consider that the travel costs for X for school holidays to Sydney should also be shared equally.
From the 2016/2017 Christmas school holidays, X should spend two weeks with the father from 10:00 am Christmas Eve until 6:00pm on 7 January and from 6:00 pm 21 January until 6:00pm 28 January 2017. I do not consider that X should be required to travel on Christmas Day. X will be seven years old and will have spent three separate weeks of holiday time with the father during the year. She will be able to have frequent communication with the mother during this time.
In 2017/2018 Christmas school holidays, X will be eight years old. She should spend one half of the holidays with each parent, the first half with the mother and the second half with the father and alternating yearly thereafter, so that Christmas Day with each parent is alternated.
On X’s birthday, the father should have the opportunity to spend time with her in Melbourne from after school until 6.00pm if a school day and from 10.00am until 2.00pm if a non-school day.
The parties may agree upon alternative or other periods from time to time.
I consider that telephone, Skype, facetime communication should occur regularly.
The changeover in Melbourne can occur either at school or at (omitted) Station and the changeover in Sydney at Sydney airport, unless otherwise agreed.
I am not persuaded that the father should undertake further drug testing. He has provided two negative results. I will make an order that he be restrained from consuming illicit drugs whilst X is in his care and 48 hours prior to her coming into his care. I will also make an order that he be restrained from smoking and consuming alcohol whilst she in his care. The mother has proposed that the order be made in respect of her also.
I am satisfied that the above arrangements will enable X to continue to have a meaningful or an “important, significant and valuable” relationship with her father, when living in Melbourne.
I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 26 February 2016
APPENDIX 1 – FULL PROPOSALS: MOTHER
That the Husband and the Wife have equal shared parental responsibility for the child of the marriage X born (omitted) 2009 (“the child”).
That the child live with the Wife.
That the Wife be permitted to relocate the child’s residence to the Melbourne metropolitan area in Victoria.
That in the event that the child lives with the Wife in Victoria, the child spend time with the Husband as follows:
a)In Melbourne on one weekend every month during every Victorian school term from 9.00am on Saturday until 4.00pm on Sunday (or between such other times as may be agreed, subject to flight availability) on dates to be agreed and in default of agreement, with such dates to be nominated by the Husband in writing within 7 days prior to the commencement of every school term;
b)On two additional weekends during every Victorian school term in Sydney, New South Wales at the option of the Husband from 9.00am on Saturday until 2.00pm on Sunday (or between such other times as may be agreed, subject to flight availability) with the dates to be nominated by the Husband in writing within 7 days prior to the commencement of every school term;
c)Upon the Husband providing the Wife with no less than 28 days notice in writing of his intention to spend time with the child, in Melbourne as follows:
i.On the child's birthday from 9.00am until 1.00pm;
ii.On the evening preceding Father's Day until 4.00pm on Father's Day;
iii.On the evening preceding the Husband's birthday until 4.00pm on the Husband's birthday;
d)During the summer school holidays:
i.In 2015/2016 as follows:
A.From 10.00am on 26 December 2015 until 4.00pm on 28 December 2015 in Melbourne; and
B.From 10.00am on 16 January 2016 until 2.00pm on 18 January 2016 in Sydney;
ii.In 2016/2017 as follows:
A.From 10.00am on 23 December 2016 until 2.00pm on 27 December 2016 in Sydney; and
B.From 10.00am on 14 January 2017 until 2.00pm on 19 January 2017 in either Melbourne or Sydney at the election of the Husband;
iii.In 2017/2018 and every year thereafter for two non-consecutive weeks, excluding Christmas Day in 2017 and in each alternate year thereafter and including Christmas Day in 2018 and in each alternate year thereafter, being in the last week of December and the third week of January, unless otherwise agreed in writing 28 days prior to the conclusion of the fourth Victorian school term, with time to take place in Melbourne, or Sydney at the election of the Husband.
e)During every period of the Victorian school holidays at the conclusion of terms 1, 2 and 3 in either Melbourne or Sydney (at the election of the Husband) as follows:
i.in 2016 for three consecutive nights from 10:00am on the second day after the conclusion of the school term until 2:00pm on the fifth day of the school holidays (which will include Easter);
ii.in 2017 and in every year thereafter for five consecutive nights from 10:00am on the second day after the conclusion of the school term until 2:00pm on the seventh day of the school holidays (subject to Order 4(f) herein);
f)Every alternate Easter commencing in 2016, to be included in the Husband’s school holiday time if Easter falls during the first term school holidays;
g)Such further or other time as may be agreed in writing between the parties in writing, including by e-mail and text message.
That for the purpose of changeover for the time spent pursuant to Order 4, unless otherwise agreed in writing:
a)For time spent in Melbourne pursuant to Orders 4(a) and 4(c) and any other time spent in Victoria, the Husband shall collect the child from and return her to the Wife at the Skybus terminal at (omitted) Railway station;
b)For time spent in Sydney pursuant to Order 4(b), school holiday time or any other time spent in Sydney, until the child can travel as an unaccompanied minor, the Husband collect the child from the Wife at the Melbourne Airport at the commencement of the time and the Wife collect the child from the Husband at the Sydney Airport Domestic Terminal at the conclusion of the time; and
c)For the purposes of Sydney time thereafter, the parties arrange for the child to travel as an unaccompanied minor between Melbourne and Sydney.
That for the purposes of the child spending time with the Husband, the travel costs be borne as follows:
a)The Husband book and pay for his return airfares from Sydney to Melbourne;
b)The Wife book and pay for her return airfares from Melbourne to Sydney;
c)The parties each pay for one-half of the child’s airfares, with the Husband paying for a one way ticket for the child's travel to Sydney and the Wife paying for a one way return ticket for the child;
d)Upon the child being able to travel as an unaccompanied minor, the parties each pay for one-half of the child’s airfares, with the Husband paying for a one way ticket for the child's travel to Sydney and the Wife paying for a one way return ticket for the child;
That in the event that the child resides in New South Wales with the Wife, then the child spend time with the Husband as follows:
a)Every alternate weekend from 9.00am on Saturday until 4.00pm on Sunday during school terms in 2016;
b)Every alternate weekend from the conclusion of school on Friday until 4.00pm on Sunday during school terms in 2017;
c)Every alternate weekend from the conclusion of school on Friday until the commencement of school on Monday during school terms in 2018 and every year thereafter, subject to the Husband’s work commitments and his availability to care for the child on Sunday nights;
d)For one week of the first and third term school holidays, being the first week unless otherwise agreed and including Easter in every alternate year (commencing in 2016);
e)During the summer holidays, for two non-consecutive weeks, excluding Christmas Day in 2015 and in each alternate year thereafter and including Christmas Day in 2016 and in each alternate year thereafter, being in the last week of December and the third week of January, unless otherwise agreed in writing.
f)Christmas Day (to be included in the Husband’s first week of holiday time) in alternate years, commencing in 2016;
g)On the child's birthday from 2.00pm until 6.00pm;
h)On the evening preceding Father's Day until 4.00pm on Father's Day;
i)On the evening preceding the Husband's birthday until 4.00pm on the Husband's birthday;
j)Otherwise as agreed between the parties from time to time.
That for the purposes of all time spent, the Husband be in substantial attendance.
That pending the settlement of the sale of the former matrimonial home at (omitted) and the Husband moving into alternative accommodation at which the child has her own bed, all overnight time in Sydney occur at the residence of the Husband's parents.
10.That the parent with whom the child is not living with, or spending time with facilitate the other parent communicating with the child by telephone, facetime or Skype every Monday, Wednesday and Friday at 3.30pm, or such other days and times as may be agreed and at any other times requested by the child and each parent, to the extent that it is practicable, provide the child with privacy to take the other parents calls.
11.That the Husband undertake supervised drug screen testing at his expense as follows:
a)The testing to occur at a testing facility that is accredited by the National Association of Testing Authorities (NATA) and applies AS/NZS 4308:2008 ("the testing facility");
b)The testing is to occur randomly on no more than eight (8) occasions within 24 months from the date of this Order;
c)The Husband is to attend upon the testing facility within 48 hours of being notified by the Wife, or her solicitors that he is required to do so; and
d)The results of the testing are to be forwarded to the Wife within seven (7) days of such notification being made.
12.That in the event that the Husband fails to provide a drug screen result within seven (7) days of the request being made or produces a drug screen result that shows the detection of drugs, then the child’s time with the Husband shall be suspended and recommence only upon production by the Husband of a clear supervised drug screen.
13.That the Husband forthwith enrol and complete a post separation parenting course and provide a certificate of completion to the Wife within 3 months.
14.That all communication between the Husband and Wife be by way of telephone text message or email only, unless otherwise agreed.
15.That the parties do all acts and things and sign all documents necessary to authorise the school attended by the child to provide to each of the parties, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, notices of parent and teacher meetings and sporting events and both parties be permitted to attend the school events parents are normally invited to attend.
16.That if the child requires medical attention when in the Husband's care, then the Husband is to take her to see Dr S in Sydney and Dr M in Melbourne, if practicable, save that in the event of medical emergency the Husband notify the Wife immediately and provide contact details of the health care professional or medical facility upon which the child attends and that no further medical action/intervention can take place without the consent of the Wife.
17.That in the event that the child is prescribed medication, each party notify the other of the prescribed medication as soon as is practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication is provided to the other parent at changeover.
18.That each party inform and keep the other informed at all times of their telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and shall notify the other party of any changes thereto within forty eight (48) hours of the date of such change occurring.
19.That each party do all such acts and sign all such documents necessary to obtain a passport for the child and any renewals thereof, with such passport to be held by the Wife, subject Order 20(c).
20.That each party be permitted to travel overseas with the child during their time with her upon the following conditions:
a)The other party providing his or her written consent, such consent not to be unreasonably withheld;
b)The party wishing to travel overseas with the child providing to the other party no less than 28 days prior to the proposed travel an itinerary, including the dates of travel, destinations, flight numbers and the addresses at which the child will be staying whilst overseas; and
c)The Wife providing the child’s passport to the Husband within 14 days of child’s departure from Australia and the Husband returning the child’s passport to the Wife within 14 days of the child’s return to Australia.
21.That each of the parties are hereby restrained by injunction from:
a)abusing, insulting, belittling, or otherwise denigrating the other party, or any member of the other party's household or extended family to or in the presence or hearing of the child (and use their best endeavours to ensure that no other person does so);
b)consuming illicit drugs or non-prescription medication when the child is in their respective care or 48 hours prior to the child coming into their care;
c)smoking in the presence of the child;
d)consuming alcohol while the child is in their care; and
e)using physical discipline with the child.
APPENDIX 2 – FULL PROPOSALS: FATHER
That the parties have equal shared parental responsibility in respect of all major long-term issues for the child, X born (omitted) 2009 (“the child”);
That the mother relocate the residence of the child to the (omitted) Area of Sydney, New South Wales, comprising all suburbs within the local government areas of (omitted) (hereinafter, the (omitted) Area) by 8 January 2016;
That unless otherwise agreed between the parties, the parties be restrained from relocating the residence of the child from the (omitted) Area;
That within 7 days of the date of these orders, the Child be re-enrolled at (omitted) Primary School at (omitted);
That the child live with the mother when not spending time with the father pursuant to these orders;
That the child spend time with the father, at such times as agreed, but failing agreement:
a)During the School term, on alternate weekends, from after school Friday (or 3pm if not a school day) until before school Monday (or 9am if not a school day);
b)During the school holidays:
i.For the first half of the term one, term two and term three school holidays in odd numbered years, from after school at the commencement of the school holidays until 6pm on the middle Saturday of the school holidays;
ii.For the second half of the term one term, term two and term 3 school holidays in even numbered years, from 6pm on the middle Saturday of the school holidays until before school when school resumes;
iii.For the school holidays at the conclusion of term 4, in 2015/2016 and every alternate year thereafter:
A.from 10am on Christmas Day (25 December) until 6pm on 8 January; and
B.from 6pm on 22 January until school resumes;
iv.For the school holidays at the conclusion of term 4, in 2016/2017 and every alternate year thereafter:
A.For four nights, from after school until 6pm on the 3rd full day of the school holidays; and
B.from 6pm on 2 January until 6pm on 16 January;
c)On Father’s day, in the event that the child is not already spending time with the Father, from 6pm on the Saturday preceding Father’s Day until 6pm on the Sunday;
That the child’s time with the Father pursuant to order 6 above shall be suspended on Mother’s day, from 6pm on the Saturday preceding Mother’s Day until 5pm on the Sunday;
That orders 5 and 6 above are suspended during the following periods and the child shall spend time with the parties during these periods, as agreed between the parties, but failing agreement:
a)For the child’s birthday:
i.If on a school day, from after school until 6pm, with the parent who the child is not otherwise living with or spending time with in accordance with these orders;
ii.On a non-school day, from 10am until 2pm, with the parent who the child is not otherwise living with or spending time with in accordance with these orders;
b)At Easter (if it does not fall during the School holidays):
i.From 5pm on Holy Thursday until 5pm on Easter Saturday in odd numbered years with the mother and even numbered years with the father;
ii.From 5pm on Easter Saturday until 5pm on Easter Monday in odd numbered years with the father and even numbered years with the mother;
For the purpose of calculating school holidays, school holidays are deemed to commence when the school attended by the child finishes on the last day of term and start when school commences on the first day of the following term and include pupil free days or public holidays that occur at either the commencement or the conclusion of the school holiday period;
10.That for the purpose of calculating the father’s time with the child during school term, the father’s time each alternate weekend shall commence:
a)At the conclusion of the first week of school term if he did not spent the last weekend of the school holidays with the child; or
b)At the conclusion of the second week of school term if he did spend the last weekend of the school holidays with the child;
11.That for the purpose of changeovers:
a)If the child is attending school immediately before or after changeover, then changeovers shall occur at the child’s school.
b)If the child is not attending school, then the father shall deliver the child to the residence of the mother at the conclusion of his time with the child and the mother shall deliver the child to the residence of the father (or (omitted) if the father is residing in (omitted)) at the conclusion of her time with the child;
12.That within fourteen (28) days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to authorise the school attended by the child to provide to each of the parties, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the mother and the father individually, then the parent who is in receipt of this information shall provide copies to the other parent as soon as is practicable.
13.In the event that either party attends upon any medical practitioner or health professional with the child, they shall advise the other of such attendance as soon as possible, or in any event within 24 hours;
14.That each party shall:
a)in the event that the child is prescribed medication, notify the other of the prescribed medication as soon as is practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication will be provided to the other parent at changeover and the party being provided the medication will ensure that it is given to the child as prescribed and returned to that parent at the conclusion of the child’s time with the other parent.
b)In the event that any of the child is involved in a medical emergency, notify the other immediately and provide details of the health care professional or medical facility upon which the child attends;
c)provide the other party a copy of any report received with respect to any medical treatment for the child within 48 hours of having obtained that report.
15.That each party shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and shall notify the other party of any changes thereto within forty eight (48) hours of the date of such change occurring.
16.That the party who the child is living/spending time with in accordance with these orders shall facilitate telephone or such other similar means of communication with the other parent, at any reasonable time, upon the request of the child;
17.That the parent who is not living/spending time with the child is at liberty to telephone the child on Mondays, Wednesdays, Fridays and Sundays, between 3.30pm and 4.00 pm and the other parent shall ensure that they have a telephone available so the child can receive the call.
18.That instead of communication via telephone, the parties are also at liberty to communicate with the child by skype, text message or other such electronic means, if those means are available.
19.That each of the parties are hereby restrained by injunction from:
a)showing the child documents in these proceedings, discussing these proceedings in the presence or hearing of the child, or permitting any other person to do so;
b)abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child (and use their best endeavours to ensure that no other person does so);
c)consuming illicit drugs or alcohol 48 hours prior to the child being in either parties’ care;
d)smoking in the presence of the child; and
e)using physical discipline with the child.
Alternate Parenting Orders Sought if the Court orders that the child remain in Melbourne
That the parties have equal shared parental responsibility in respect of all major long-term issues for the child, X born (omitted) 2009 (“the child”);
That the child live with the mother in Melbourne;
That the child spend time with the father, at such times as agreed, but failing agreement as follows:
a)During the Victorian School term, in Sydney on the fourth weekend terms one, two, three and four, with the child to depart Melbourne no later than 5pm on Friday and depart Sydney no earlier than 5pm on Sunday, with the mother to arrange and pay for the costs of the child’s travel to and from Melbourne;
b)During the Victorian School term, in Melbourne on the seventh weekend terms one, two, three and four, from after school Friday (or 3pm if not a school day) until 5pm Sunday, with the father to arrange for and pay the costs of travel and accommodation in Melbourne;
c)During the school holidays:
i.For the Victorian school holidays at the conclusion of terms one, two and three, in Sydney, with the child to depart Melbourne no later than 5pm on the last day of school term and to depart from Sydney no later than 3pm on the last Friday of the school holidays, with the mother to arrange and pay for the costs of travel;
ii.For the Victorian school holidays at the conclusion of term 4, in 2015/2016 and every alternate year thereafter, for the first half of the school holidays, with the child to depart Melbourne no later than 5pm on the last day of term and to depart from Sydney no later than 3pm on the midpoint day of the school holidays, with the father to arrange and pay for the costs of such travel;
iii.For the Victorian school holidays at the conclusion of term 4, in 2016/2017 and every alternate year thereafter, for the second half of the school holidays, with the child to depart Melbourne no later than 11am on the midpoint day and to from Sydney no later than 3pm on the second last day of the school holidays, with the father to arrange and pay for the costs of such travel;
For the purpose of calculating school holidays, school holidays are deemed to commence when school finishes on the last day of the Victorian school term and start when school commences on the first day of the following Victorian school term and include pupil free days or public holidays that occur at either the commencement or the conclusion of the school holiday period;
That for the purpose of the child’s travel to and from Sydney and Melbourne, unless otherwise agreed between the parties:
a)Travel during school term time must be by aeroplane;
b)Travel during school holiday time can be by aeroplane or motor vehicle;
c)That until the child reaches the age of 8, the party responsible for arranging the child’s travel by aeroplane pursuant to these orders, must personally accompany the child or arrange for the child to be accompanied by another adult relative or friend (with whom the child is well acquainted) and be responsible for the costs of their travel or of the person otherwise accompanying the child;
d)That from the age of 8, the chid may travel by aeroplane unaccompanied (subject to the requirements of the airline) and the parent responsible for arranging the travel pursuant to these orders must comply with any requirements of the airline regarding children travelling unaccompanied;
e)That the parties will provide to each other notification in writing by email or text message of their means of travel, departure and arrival times and flight numbers at least 48 hours prior to the said travel, and inform the other of any changes to the itinerary as soon as known;
That for the purpose of changeovers:
a)When the father is in Melbourne:
i.If child is attending school immediately before or after changeover, then changeovers shall occur at the child’s school;
ii.All other changeovers shall take place at such other location as agreed in writing between the parties, but failing agreement, at (omitted) Station, Melbourne;
b)When the child is in Sydney:
i.If the mother is travelling to Sydney by motor vehicle, the mother shall deliver the child to and/or collect the child from the residence of the father (or (omitted) if the father is residing in (omitted));
ii.If the child is travelling to Sydney by aeroplane:
A.the father shall collect the child from Sydney airport at the commencement of his time with the child, unless he is otherwise responsible for personally accompanying the child to Melbourne pursuant to these orders, in which case, changeover shall occur at Melbourne airport;
B.the mother shall collect the child from Melbourne airport at the conclusion of the father’s time with the child, unless she is otherwise responsible for personally accompanying the child to Sydney pursuant to these orders, in which case, changeover shall occur at Sydney airport;
That within fourteen (28) days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary to authorise the school attended by the child to provide to each of the parties, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the mother and the father individually, then the parent who is in receipt of this information shall provide copies to the other parent as soon as is practicable.
In the event that either party attends upon any medical practitioner or health professional with the child, they shall advise the other of such attendance as soon as possible, or in any event within 24 hours;
That each party shall:
a)in the event that the child is prescribed medication, notify the other of the prescribed medication as soon as is practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication will be provided to the other parent at changeover and the party being provided the medication will ensure that it is given to the child as prescribed and returned to that parent at the conclusion of the child’s time with the other parent.
b)In the event that any of the child is involved in a medical emergency, notify the other immediately and provide details of the health care professional or medical facility upon which the child attends;
c)provide the other party a copy of any report received with respect to any medical treatment for the child within 48 hours of having obtained that report.
10.That each party shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for the child to communicate with the other party, and shall notify the other party of any changes thereto within forty eight (48) hours of the date of such change occurring.
11.That the party who the child is living/spending time with in accordance with these orders shall facilitate telephone or such other similar means of communication with the other parent, at any reasonable time, upon the request of the child;
12.That the parent who is not living/spending time with the child is at liberty to telephone the child on:
a)Mondays, Wednesdays, Fridays and Sundays, between 3.30pm and 4.00 pm;
b)Mother’s Day at 10am (if the Mother is not otherwise spending time with the child);
c)Father’s Day at 10am (if the Father is not otherwise spending time with the child);
d)Christmas Day at 10am;
e)The child’s birthday at 3.30-4.00pm;
f)The parent’s birthday at 3.30-4.00pm;
and the other parent shall ensure that they have a telephone available so the child can receive the call.
13.That instead of communication via telephone, the parties are also at liberty to communicate with the child by skype, text message or other such electronic means, if those means are available.
14.That each of the parties are hereby restrained by injunction from:
a)showing the child documents in these proceedings, discussing these proceedings in the presence or hearing of the child, or permitting any other person to do so;
b)abusing, insulting, belittling, rebuking or otherwise denigrating the child, the other party, or any member of the other party’s household or extended family to or in the presence or hearing of the child (and use their best endeavours to ensure that no other person does so);
c)consuming illicit drugs or alcohol 48 hours prior to the child being in either parties’ care;
d)smoking in the presence of the child; and
e)using physical discipline with the child.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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