Telford and Telford (No 3)
[2020] FamCA 755
•18 September 2020
FAMILY COURT OF AUSTRALIA
| TELFORD & TELFORD (NO. 3) | [2020] FamCA 755 |
| FAMILY LAW – CHILDREN – Parenting – where the mother unilaterally relocated from Adelaide to Sydney with the children and the father has since relocated to Sydney – where there are competing allegations of family violence made by both parties – where it was found that both parties have engaged in family violence before and after separation – where the father was subject to a final ADVO which has since expired – where family violence does not constitute an unacceptable risk to the children – where the mother alleges the father will not adhere to Court orders in light of removing the children interstate on one occasion and having proposed to do so on another occasion – where it was found conduct was contributed to by the mother unilaterally relocating – where held no serious risk – where the father alleges the mother’s emotional dysregulation constitutes an unacceptable risk of psychological harm to the children – where the father alleges the mother has alienated the children from him – where the mother had dysregulated responses after separation – where held her anxiety, depression and stress levels are now managed in the normal range with therapeutic intervention – where found the mother’s negative narrative of the father has been driven by her anxious personality rather than a conscious intention to alienate the children from their father – where held mother’s behaviour towards the father likely has had an alienating effect on the children’s perception of him – where the mother and the Independent Children’s Lawyer propose the mother have sole parental responsibility – where the father seeks equal shared parental responsibility – where the presumption of equal shared parental responsibility does not apply due to finding of family violence and is also rebutted in the best interests of the children – orders made for the mother to have sole parental responsibility – where the mother proposes the children live with her and spend no time with the father in the first instance or alternatively supervised time with the father up until they attain their majority – where found supervision not warranted – where found father had given insufficient attention to the practicalities of providing suitable accommodation for the children – where orders made for the children to live with the mother and spend substantial and significant time with the father – where father’s holiday time with the children subject to obtaining suitable accommodation – where orders made for the children’s names to be placed on the Family Law Watchlist until they reach 18. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61C, 61DA, 64B(2)(c), 65(1), 65D, 65DAA, 65DAB, 65DAC, 69ZT, 121 |
| Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Bilz & Breugelman [2013] FamCA 578 Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 Bondelmonte v Bondelmonte (2016) 259 CLR 662 Boyce & Boyce [2015] FamCAFC 60 CDJ v VAJ (No 2) (1998) 197 CLR 172 Chamness v Hanson (2009) FLC 93-407 Cox & Pedrana (2013) FLC 93-537 Damiani & Damiani (No. 2) [2009] FamCAFC 215 Donaghey & Donaghey (2011) 45 Fam LR 183 Dundas & Blake (2013) FLC 93-552 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Froth & Schneider [2011] FamCA 378 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Heath & Hemming (No 2) [2011] FamCA 749 In the Marriage of A (1998) FLC 92-800 In the Marriage of Paisio (1978) 26 ALR 132 Johnson & Page (2007) FLC 93-344 Jollie & Dysart [2014] FamCAFC 149 Lovett & McGregor (2019) FLC 93-935 M & S (2007) FLC 93-313 M v M (1988) 166 CLR 69 Maldera & Orbel (2014) FLC 93-602 Marvel & Marvel (2010) 240 FLR 367 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Re G: Children’s Shooling (2000) FLC 93-025 Robertson & Sento [2009] FamCAFC 49 Sieling & Sieling (1979) FLC 90-627 Sigley & Evor (2011) 44 Fam LR 439 Stott & Holgar and Anor [2017] FamCAFC 152 Tibb & Sheean (2018) 58 Fam LR 351 Vallans & Vallans (2019) 60 Fam LR 193 |
| APPLICANT: | Ms Telford |
| RESPONDENT: | Mr Telford |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 1050 | of | 2016 |
| DATE DELIVERED: | 18 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 17 – 21 February 2020 & 7 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen |
| SOLICITOR FOR THE APPLICANT: | L & M Law |
| COUNSEL FOR THE RESPONDENT: | Ms Goodchild |
| SOLICITOR FOR THE RESPONDENT: | Ark Law Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Schroder |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
Orders
All previous parenting orders in relation to the children Y born … 2012 and Z born … 2013 (“the children”) be discharged.
Subject to these Orders, all outstanding applications be otherwise dismissed.
Live with
The children live with the mother.
Parental Responsibility
The mother have sole parental responsibility for the children.
In the exercise of parental responsibility the mother shall:
(a) Inform the father by email or text message of the major issue that has arisen and invite his written comments. Such notice to the father is to be given within seven (7) days of such issue arising;
(b) The father shall give his comments within seven (7) days; and
(c) The mother shall take those comments, if made, into account and then make a final decision and inform the father of that final decision.
Time with the Father
That:
(a)Within sixty (60) days of the date of these Orders the father take all necessary steps to obtain accommodation, with no less than two (2) bedrooms and a right of exclusive occupation;
(b)Thereafter as soon as practicable the father shall provide written evidence to the Independent Children’s Lawyer that he has obtained such accommodation;
(c)Within seven (7) days thereafter the Independent Children’s Lawyer, if satisfied with the evidence provided by the father in accordance with Order 6(b), shall notify the father and the mother in writing that Order 6(a) has been complied with; and
(d)Upon the Independent Children’s Lawyer notifying the parties in accordance with Order 6(c), Orders 7, 8 and 9 shall become operative.
That, subject to Order 6, commencing on the second weekend after this order becomes operative, the children spend time with the father during school term as follows:
(a)Each alternate weekend from completion of school Friday to commencement of school Monday;
(b)That in the event that the children are spending time with the father in accordance with Order 8, the time specified in 7(a) shall be suspended for the duration of such time and shall recommence from the first weekend after school returns for the commencement of term after the end of the school holiday period.
(c) Such other times as agreed between the parties.
That subject to Order 6 the father shall spend time with the children during school holidays as follows:
(a) From conclusion of school on the last day of school attendance in Terms 1, 2 and 3 until 9:00 am on the middle Sunday of the school holidays; and
(b) From conclusion of school on the last day of school attendance in Term 4 until 9:00 am on the middle Sunday of the school holidays.
(c) Otherwise as agreed between the parties.
That in the event Orders 7, 8 and 9 become operative, and unless the parties agree otherwise in writing, the father shall use his best endeavours to maintain accommodation of no less than 2 bedrooms and a right of exclusive occupation when the children are in his care.
Religious holidays
That notwithstanding any other Orders, unless otherwise agreed in writing, the children spend time with the mother and father during Religious holidays as follows:
(a) Religious Festival 1 each year with the mother.
(b) Religious Festival 2 each year with the mother.
(c) Religious Festival 3:
(i)In even-numbered years, with the father commencing at 3:00 pm the afternoon of the commencement of Religious Festival 3 and concluding at 9:00 am on the fifth day, and from 9:00 am on the fifth day until the seventh day of Religious Festival 3 with the mother.
(ii)In odd-numbered years, with the mother commencing at 3:00 pm the afternoon of the commencement of Religious Festival 3 and concluding at 9:00 am on the fifth day, and from 9:00 am on the fifth day until the seventh day of Religious Festival 3 with the father.
(d) Religious Festival 4 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 4 and concluding 9:00 am the day after the holiday concludes in even-numbered years with the mother and odd-numbered years with the father.
(e) Religious Festival 5:
(i)In even-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 5 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the father, and from 9:00 am on the fifth day until the eighth day of Religious Festival 5 with the mother.
(ii)In odd-numbered years, commencing 3:00 pm the afternoon of the commencement of Religious Festival 5 and for four (4) consecutive nights concluding at 9:00 am on the fifth with the mother, and from 9:00 am on the fifth day until the eighth day of Religious Festival 5 with the father.
(f) Religious Festival 6 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 6 until 9:00 am the day after the festival concludes with the father each year.
(g) Religious Festival 7:
(i)In even-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 7 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the mother, and from 9:00 am on the fifth day until the ninth day of Religious Festival 7 with the father.
(ii)In odd-numbered years, commencing at 3:00 pm the afternoon of the commencement of Religious Festival 7 and for four (4) consecutive nights concluding at 9:00 am on the fifth day with the father and from 9:00 am on the fifth day until the ninth day of Religious Festival 7 with the mother.
(h)Religious Festival 8 commencing at 3:00 pm the afternoon of the commencement of Religious Festival 8 and concluding 9:00 am the day after the holiday concludes in odd-numbered years with the father and even-numbered years with the mother.
Other Special Occasions
That notwithstanding any other Orders, the children shall spend the following times with the Father:
(a)On Father's Day from 9:00 am until 5:30 pm;
(b)On the father's 1st birthday, when the children are not otherwise spending time with the father in accordance with these Orders, and his birthday falls on a school day, from the conclusion of school until 6.30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day;
(c)On the father's 2nd birthday, when the children are not otherwise spending time with the father in accordance with these Orders, and his birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00am until 5:30 pm if such a day is not a school day;
(d)Such other times as agreed between the parents.
That notwithstanding any other Orders the children's time with the father be suspended and the children live with the mother at the following times:
(a)On Mother's Day from 9:00 am until 5:30 pm;
(b)On the mother's 1st birthday, when the children are not otherwise living with the Mother in accordance with these Orders, and her birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day;
(c)On the mother's 2nd birthday, when the children are not otherwise living with the Mother in accordance with these Orders, and her birthday falls on a school day, from the conclusion of school until 6:30 pm or otherwise from 11:00 am until 5:30 pm if such a day is not a school day.
Changeover
That where the father’s time with the children commences at the conclusions of school, changeovers shall take place at school, or as otherwise agreed between the parties in writing.
That for the purposes of changeovers which do not occur at school, collection and delivery of the children shall occur at the parking area of K Shopping Centre, or such other location as the parties agree in writing.
That:
(a)where possible the parties shall use their best endeavours to organize for a third party to collect and deliver the children at the commencement and conclusion of the time;
(b)the parties shall inform the other party of the name of the person who will be collecting or delivering the children pursuant to this Order 13 by text message.
That the parties may at any time by agreement in writing change the location or manner of changeover.
Restraints
That neither party shall use physical discipline when disciplining either of the children.
That neither party shall denigrate the other party to or in the presence of or hearing of either of the children and shall use their best endeavours to ensure that no third party denigrates a parent to or in the presence of or hearing of either of the children.
That the parties be and are hereby restrained from discussing the proceedings with either of the children or within their presence or hearing or from showing either child any document pertaining to the proceedings and they shall use their own best endeavours to ensure that no other person does so.
Communication
That each of the parties shall be at liberty to communicate with the children by telephone, Skype, WhatsApp or other such electronic communication when they are in the other party’s care and, failing agreement, such electronic communication to be each Tuesday or Thursday between 6:00 pm and 7:00 pm.
That unless otherwise specified in these Orders, or otherwise agreed in writing, the parties shall communicate with each other by email or text message.
That each party keep the other party informed as to any other matter relevant to the welfare of the children including but not limited to the children receiving medical attention, being prescribed medication or attending any health practitioners.
That subject to Orders 3 and 4, in the event that either or both children are hospitalized or suffer a medical emergency or major illness, the party in whose care the children then are shall inform the other party as soon as practicable and not less than twelve (12) hours after such hospitalization or emergency or diagnosis and shall authorize any medical practitioner to provide the other party with all information that he or she may request.
That the mother shall authorise all health and medical practitioners to provide all information as to the children’s health to both parties as either party may require or may be requested directly by either party of the treating practitioner.
That should either of the children be unwell while in either party’s care and require the administration of medication, then that party shall advise the other party at the time of changeover of any medication recently given or required to be given while the unwell child is in the other party’s care.
That the parties shall keep each other informed of any change to their residence, although neither party shall be obliged to furnish their residential address to the other party, but must furnish an address at which the children can be collected during an emergency, together with a contact telephone number and personal email addresses and notify the other party within twenty-four (24) hours of any change.
Other matters
That the parties shall continue to engage with the P Services and facilitate the children's attendance at such program until such time as the manager of the program determines that the parties and/or the children are no longer required to attend.
That leave is given to the Independent Children’s Lawyer to provide a copy of these Orders and reasons for judgment to:
(a) Ms B, Psychologist;
(b) Ms C, Psychologist; and
(c) The Manager of the P Services.
That leave is given to the Independent Children’s Lawyer to provide a copy of these Orders to the Principal of Suburb R School.
That, subject to Order 29, both parties and their respective partners are entitled to attend all events involving the children including:
(a) Sporting events;
(b) School graduations and award ceremonies;
(c) Extracurricular activities that allow for parental attendance; and
(d)School functions that allow for parental attendance including but not limited to concerts, assemblies, sports days, canteen duties and social functions and the party who has the children in their care on the day of such activities will be responsible for their day to day care at such event and their transportation to and from such event.
If both the mother and the father are present at any events referred to in Order 30, unless they agree otherwise in writing:
(a) They are to take all necessary steps to remain no less than 50 metres from each other;
(b) Neither party shall speak in a hostile or aggressive manner towards the other party; and
(c) Neither party shall physically restrain either of the children from approaching the other party.
That each party shall take all necessary steps to organise separate parent teacher interviews with the school attended by the children, so that they do not attend such interviews together.
That each party be entitled to obtain directly from any school attended by the children, copies of any reports, notices, school photos or other relevant verbal or written advice affecting the education and welfare of the children, at the cost of the requesting party.
That the mother shall ensure, including by any necessary authorisations, that Suburb R School and any other school attended by children shall include the father on “Skoolbag” and “Seesaw” and any other app, electronic or internet platform that the school uses to communicate information to parents including access through the school “Parent Portal”.
Travel
Both parties be permitted to take the children interstate during the time that the child is in their care provided the travelling party has given the other party thirty (30) days written notice of the proposed travel.
That all travel arrangements for the children are to be made during their respective time with each parent unless otherwise agreed between the parents in writing.
Unless otherwise agreed between the parties in writing, the mother and father, by themselves, their servants or their agents are restrained from removing or attempting to remove the children from the Commonwealth of Australia.
The Court requests that the Australian Federal Police place the name of the children, Y (born … 2012) and Z (born … 2013) on the Family Law Watchlist at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia until the children attain the age of 18 years.
The Marshal and all offices of the Australian Federal Police and the police forces are requested and authorised to give effect to these Orders.
That in the event the parties agree in writing to permit either party to travel outside the Commonwealth of Australia with the children, the parties shall take all necessary steps to cause the temporary removal of the names of the children from the Family Law Watchlist between the dates agreed upon by the parties.
That the mother will retain the children’s passports and, in the event the parties agree for the father to travel internationally with the children, will provide the passport to the father within forty-eight (48) hours of being requested to do so but no sooner than fourteen (14) days prior to the date of departure and on the father’s return from travel with the children, he will return the passport to the mother within seven (7) days of such travel.
Unless otherwise agreed in writing, within thirty (30) days prior to the expiration, or after the loss or theft, of the passport of either child, the parties shall take all necessary steps, including providing any necessary authorisations, and co-operate to procure the renewal or replacement of such passport
COVID-19
At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.
That both parties shall use their best endeavours to communicate with reasonable regularity in accordance with these orders, to seek agreement on the management of issues affecting either child arising from the COVID-19 pandemic.
That, notwithstanding Order 18, during any period of mandatory quarantine these Orders so far as they relate to the father spending face to face time with the children, be suspended, and in lieu thereof the father communicate with the children by way of electronic communication that permits the father and children to see each other such as Skype, WhatsApp, Zoom and Facetime as requested by the father once per day, and unless otherwise agreed, between 6:00 pm and 7:00 pm. The parties are to do all things necessary to facilitate this communication and the father and children are to be given privacy during the communications.
That during any period of mandatory self-isolation imposed on either party:
(a) The isolated party communicate as soon as practicable that a period of mandatory self-isolation has been imposed to the other party.
(b) If the mandatory self-isolation of an isolated party includes the children, then these Orders for the other party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties in accordance with the procedure referred to in Order 5(a) and Order 43 for the other party to communicate with the children.
(c) If the mandatory self-isolation of an isolated party does not include the children, then these Orders for the isolated party to have face to face time, or live, with the children are suspended for the duration of the mandatory self-isolation period. During any such period, communication shall take place between the parties in accordance with the procedure referred to in Order 5(a) and Order 43 for the other party to communicate with the children.
Disputes or Variations
The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 45 shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Costs
If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Telford & Telford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1050 of 2016
| Ms Telford |
Applicant
And
| Mr Telford |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This is a parenting matter between the applicant mother, Ms Telford (“the mother”) and the respondent father, Mr Telford (“the father”) in relation to the children of the relationship, Y born in 2012 and currently eight years of age and Z born in 2013 and currently six years of age (together referred to as “the children”).
The children reside with the mother in Sydney. The mother relocated from Adelaide to Sydney in February 2016. The father relocated to Sydney in February 2017. Both parties claim they intend to remain living in Sydney.
The proceedings began in 2016. There are currently interim parenting orders which, inter alia, provide for children to live with the mother, and for the father to spend supervised time with the children every second weekend on a Sunday for a period of three hours and to communicate with the children via Skype or Facetime for an hour, three nights a week.
On a final basis, in summary, the mother seeks an order for sole parental responsibility, for the children to continue to live with her and for any time with the father to be supervised, if the Court determines it is in the children’s best interests to spend time with the father. She also seeks that the children’s names remain on the Family Law Watchlist. The father proposes that the parties have equal shared parental responsibility, for the children either to live with him and to spend time with the mother during the school term each alternate weekend commencing Friday after school and half of the school holidays, or live with the mother and spend time with the father five nights each fortnight from Wednesday after school to Monday before school, as well as time on Religious holidays and festivals. The Independent Children’s Lawyer (“ICL”) proposes the mother have sole parental responsibility, the children live with her, and spend unsupervised time with the father each alternate weekend from completion of school Friday to the commencement of school Monday with school holiday time. The differing proposals are set out in detail later in these reasons.
One implicit theme through the evidence of both parties was a perception that they were locked in a battle over their rights as parents. They both require a strong reminder that the legislative intent of Part VII of the Family Law Act 1975 (Cth) (“the Act”) is to focus on the “rights of children, on the one hand, and [the] duties, obligations and responsibilities of parents on the other” (original emphasis): per Kent J sitting as the Full Court in Vallans & Vallans [2019] FamCAFC 260; (2019) 60 Fam LR 193 at [39], following Blaze & Anor & Grady & Anor [2015] FamCA 1064; (2015) 54 Fam LR 172 at [101].
Background
The mother was born in 1983 in an overseas country and is currently 37 years old.
The father was born in 1980 in an overseas country and is currently 39 years old.
The parties first met in 2007 in South America and started dating in January 2010 when they met again in the United States of America. The parties were married in Country BN on 22 August 2010 and then embarked on a one year honeymoon backpacking trip around the world. The parties returned to reside in the United States of America for the period August 2011 to September 2011.
According to the father in September 2011 he was offered a temporary position as an educator at the Suburb S Centre, and according to the mother they moved to Sydney in October 2011 on working holiday visas and lived with friends rent-free.
Y was born in 2012.
The father states he was able to find locum work with a Brisbane Religious Centre and as a result, they relocated to Brisbane in February 2013. Following this, he took up work with another Brisbane Religious Centre which secured the parties temporary visa sponsorship. During this time the family lived in Brisbane.
According to the father, when their Australian visas expired, they travelled to Country BY. While there, he was able to secure work and sponsorship for permanent residency visas in Adelaide with the Adelaide Religious Centre as an educator commencing in March 2013. The father accepted the position. The parties and the children returned to Adelaide in that month. The mother took on a role for the Centre. The family was provided with a large five bedroom furnished home owned by the centre. The dining and family room combined was capable of seating more than sixty people. They often had a dozen guests at their table and, for festivals, up to thirty-five guests. They had numerous people stay with them for various lengths of time over a period of two and a half years.
Z was born in 2013.
The father states that he and the mother were granted permanent residency on or about 2 July 2015.
By early 2016, the mother felt she could no longer continue in the marriage, and on 19 February 2016 the mother left Adelaide with the children.
Post Separation
The mother filed her Initiating Application in the Federal Circuit Court of Australia on 25 February 2016, about a week after leaving Adelaide. On the same day, the father received a letter from the mother’s solicitors advising that she and the children were safe in Sydney.
The mother sought orders for the children to live with her, to have sole parental responsibility for the children and for the father to spend time with the children twice a fortnight for three hours in Sydney with provisions for Skype communication.
In her Notice of Risk, she made the following allegations:
1. Ongoing financial control by the husband over all family monies, including: cutting off the Wife’s credit cards and all access to bank accounts, demanding receipts for all money spent by the Wife, controlling money earned by the Wife, insisting on property being in the Husband’s name.
2. Emotional abuse and controlling behaviour by the husband including degradation, strict control of the Wife’s clothing, prevention of the Wife eating particular foods and harsh criticisms leading to the Wife experiencing anxiety and depression.
The father gave an undertaking on 1 March 2016 in the following terms:
1. In relation to time that the children will spend with me in Sydney prior to any Court Orders being made, I will:
1.1. remain at all times within the sight and hearing of the Supervisor; and
1.2. I will not remove the children from Sydney, or the State of New South Wales.
According to the father he was pressured to give the undertaking and he felt slightly humiliated but went along with it for the sake of the children. He denied there was any basis for supervision.
On 3 March 2016, the mother attended Suburb F Police Station which resulted in an Interim Apprehended Domestic Violence Order (“ADVO”) being made for the protection of the mother, which she believes was later withdrawn by police on 23 August 2016 due to the father residing in Adelaide.
In a letter to the mother’s solicitors dated 21 March 2016, the solicitor for the father sought to withdraw the undertaking made by the father and advised that in his Affidavit affirmed and filed on 21 March 2016, the father had made an undertaking not to take the children out of Sydney metropolitan when spending time with them on select dates including 12 April 2016 to 14 April 2016.
The father spent time with the children on 12 April 2016 and on 13 April 2016.
It was agreed between the parties that the father would also spend time with the children on Thursday, 14 April 2016 for three hours from 4:00 pm to 7:00 pm, with the children to be collected from the Suburb G playground and returned at H Restaurant.
However, the father kept the children with him that Thursday night at the home where he was staying. He claimed he did so because the children were distressed on 12 and 13 April 2016, and that they had informed him the mother had been hospitalised for anxiety attacks, and because the mother was living at a refuge with the children and he wanted to see if the children would settle. At around 10:00 pm that night, the father sent the mother a Skype message stating “the kids are with me and safe. I have given them dinner, read them a bed time story, and they are comfortbaly slepeing [sic]. I have pajams [sic] for them, changes of cloths [sic], and nappies. we are looking forward to a pleasant school holiday together”. On Friday morning, 15 April 2016, according to the father, the children were happy and safe, so he thought he would keep them for the weekend.
The mother filed an Application in a Case on 15 April 2016 seeking, inter alia, the recovery of the children. Orders were made by Judge Monahan on that date for the father to return the children to Sydney Child Dispute Services on 20 April 2016 and for the application to be heard on that date with the father to be in attendance.
On Sunday 17 April 2016, the father decided to take the children back to their former home in Adelaide. He said he believed that his undertaking not to remove the children from NSW was only applicable on select dates, which did not cover the weekend, and he had every intention of returning the children. The father contends that his solicitor had made him aware of the orders of Friday, 15 April 2016 on Sunday, however the father said that on the flight to Suburb K, Z was sick, had ear problems and a nosebleed and he did not think it was safe to fly back within two days to Sydney. The father proposed to return the children the following Sunday.
On Wednesday, 20 April 2016, the father failed to return the children. The matter was heard by Judge Monahan in the absence of the father, with the recovery application opposed by the father’s solicitor. A recovery order was made in respect of the children and an ICL was appointed. Interim parenting orders were made for the children to live with the mother and for the children to spend time with and communicate with the father as agreed between the parties. Further, the father was restrained from retaining or taking possession of the children without the consent of both parties or an order of the Court, and both parties were restrained from removing the children from the Commonwealth of Australia for three years. The children’s names were placed on the Family Law Watchlist.
That night at about 10:00 pm the police attended upon the father’s home in Adelaide while the mother waited outside, and the police returned the children to the mother’s care.
On 24 June 2016, orders were made by consent of the parties which provided for the mother to facilitate the children to spend time with the father for not less than two consecutive days from 8:30 am until 5:00 pm each day when the father was in Sydney. The mother was also to facilitate Skype communication between the children and the father each Tuesday and Thursday evening between 6:00 pm and 7:00 pm.
On 22 December 2016, the proceedings returned before Judge Monahan. Further orders were made by consent, discharging the orders of 24 June 2016. They provided for the parties to have equal shared parental responsibility for the children and for the children to live with the mother. The orders also provided for the father to spend time with the children from 9 January 2017 to 17 February 2017 during the day, and commencing on 3 March 2017 each alternate weekend from after school Friday until 5:30 pm Sunday. Further, if the father resided in Sydney, the children were to spend time with him each Tuesday from after school until 6:30 pm, or if the children were not in attendance at school from 8:30 am to 5:30 pm that day. With respect to the religious festivals of … and Religious Festival 5, orders were made for the children to spend overnight time with the father at BH Street, Suburb BJ or such other address as the father consistently resides at.
The parties were also to enrol and complete a parental program at BK Services as soon as practicable.
In February 2017, the father relocated to Sydney to be closer to the children.
According to the mother, on 17 May 2017 she attended Suburb T Police Station and reported ongoing harassment by the father sending emails to third parties in relation to the family law proceedings.
On 18 May 2017, Judge Monahan made orders that “both parties be injuncted from discussing any aspect of these proceedings with any third parties, or publishing any aspect of these proceedings”.
A further Interim ADVO was made for the protection of the mother by police on 28 May 2017 which was upheld on 8 June 2017 after a contested hearing. Conditions were imposed which prevented the father from emailing, commenting or providing to anyone, other than his solicitor, any documents relating to the family law proceedings.
The father later emailed the mother’s parents about the proceedings. Consequently, on 18 July 2017 the father was arrested and charged for breach of the Interim ADVO.
On … 2017, the parties were granted a civil divorce.
According to the mother, and Ms V, on 11 November 2017 the father spent time with the children supervised by Ms V and her husband at their house.
The matter was again before Judge Monahan on 12 March 2018 for interim hearing. Orders were made on 28 March 2018 for the matter to be transferred to the Family Court of Australia and for a family report to be prepared in the matter. Orders were also made allocating overnight time in block periods of between three and five days for the father to spend time with the children during term 1 through to term 4 and during school holidays, and on religious special occasions with respect to both parties for the remainder of the year.
In 2018, a Final ADVO was made for the protection of the mother for a period of 24 months from 2018 until 2020. In the transcript of the hearing, her Honour Magistrate W stated:
I accept that Ms Telford has reasonable grounds to fear, that she does, in fact, fear, further intimidation by you. Yes I do note there has been no inappropriate emails since the last one in July 2017 but of course an AVO was in place at that stage It is my view … the AVO … has been protecting her in the interim.
In late 2018, according to the mother, she attended Suburb F Police Station and reported an email sent to her by the father in late 2018. As a result the father was arrested and charged in late 2018 with breach of the Final ADVO.
On 26 February 2019, the mother alleges that the children were attending a celebratory event with the father at the L Centre and the father returned the children three hours later than agreed. The father contends that the mother arrived half an hour early to pick up the children and advised she would pick them up from K Shopping Centre at 6:30 pm. The father alleges he was late as he was trying to locate the children’s belongings and that when he dropped the children off the mother chased him for thirty seconds screaming “Someone call the police. I have an ADVO against him for my protection. I want someone to call the police right now!”
In 2019, the mother filed an application for variation of the Final ADVO on the basis that the father was emailing her work email about these proceedings. The above-mentioned breach and the application for variation was part-heard on in mid 2019, and the mother alleges that on that occasion, the father was following her around and that his behaviour was threatening and intimidating. The matter was adjourned to later in 2019.
The mother further states that the father failed to return the children on 28 April 2019 at 5:30 pm, and that she and the police were unable to make contact with the father. The father returned the children on the following day at 5:30 pm.
On 13 May 2019, the parties attended mediation but were unable to resolve their dispute.
The matter first came before me for a First Day Less Adversarial Hearing on 15 May 2019, and orders were made by consent for the parties to complete the program at Z Centre.
On 21 June 2019, I listed the parenting aspect of these proceedings for final hearing, and noted that due to the father being self-represented and the criteria for s 102NA(1) having been met, the requirements of s 102NA(2) of the Act were applicable to any cross-examination occurring in these proceedings.
The matter came before Senior Registrar Campbell on 26 June 2019 for interim hearing. There was no appearance by the father. Orders were made suspending all existing orders for the children to spend time with the father, with any time to be conditional upon the parties’ agreement in writing. The father states he was in BW City, Country BZ at the time and that he had been under the impression that because he had discontinued his Application in a Case to spend time with the children during the December/January holidays, there would be no reason to attend Court.
The father alleges that on 4 July 2019, having returned from Country BZ to attend a celebration for Z’s 100 days of kindergarten, he was requested by Deputy Principal Q to leave because he had been unaware of the orders suspending his time with the children. The mother contends that the father rushed up to her and physically attempted to remove Z from her care shouting “Let go of his arm! You’re hurting him!” The father denied this, pointing out that there is no mention of such conduct in the teacher’s notes of the incident. The father argued that Z was trying to break free from the mother and the mother used such excessive force that the incident was reported to the Department of Family and Community Services.
Following this, by agreement of the parties, the father spent time with the children supervised by either one or both of the maternal grandparents on 7, 11 and 16 July 2019.
On 12 July 2019, the part-heard hearing regarding the ADVO returned to Court and on that date the father was found guilty of the breach alleged. He was put on an 18 month good behaviour bond. The ADVO was varied to further restrain the father from sending emails to the mother’s work email address until 21 May 2020. I note this ADVO has now expired.
On 18 July 2019, the father was charged with breach of the Final ADVO because he sent an email to the mother and the maternal grandparents. The charge was later dismissed on 28 October 2019.
On 15 August 2019, Senior Registrar Campbell made orders for the father to spend time with the children every second weekend on a Sunday for a period of three hours with such time to be supervised by a children’s contact centre or such other person as agreed by the parties in writing. Pending further order, the parties were restrained by injunction from removing the children from the Commonwealth of Australia for 12 months and their names were to be placed on the Family Law Watchlist.
According to the father, following these orders, he did not speak with the children for several weeks. He claims he made attempts to message them on Skype between 28 August 2019 and 12 October 2019, and multiple attempts to message the mother to see if he could speak with the children.
On 18 November 2019 (and amended on 11 December 2019), orders were made by consent for the children to have Skype and/or Facetime communication with the father for one hour each Tuesday, Thursday and Sunday evening. According to the father, following these orders the Skype calls resumed.
On 25, 29 December 2019 and 16 January 2020, the father spent further supervised time with the children.
The final hearing was conducted between 17 and 21 February 2020. It was not completed on those days. The balance was adjourned part-heard for further hearing on 7 April 2020. On 21 February 2020, orders were made by consent, pending further order, allocating three proposed supervisors to facilitate the father spending supervised time with the children pursuant to orders made by Senior Registrar Campbell on 15 August 2019.
I note for completeness that on 21 February 2020, being the fifth day of the trial, I made orders for the balance of the hearing to take place in a closed Court. No party objected to this course. I closed the Court because it was brought to my attention that a member of the public may have disseminated part of an account of evidence given on the previous day and possibly did so quite inaccurately, raising an actual or threatened breach of s 121 of the Act. I gave oral reasons. No further comment need be made about this.
Issues in dispute
The main outstanding issues between the parties are, as follows:
a)Whether the presumption of equal shared parental responsibility applies or has been rebutted, and if so whether an order should be made allocating sole parental responsibility for the children to the mother;
b)Whether the children should live with the mother or the father;
c)In the event orders are made for the children to live with the mother, whether the father should spend substantial and significant time with the children or whether the time should be supervised by a professional contact agency to be paid for by the father;
d)Whether either parent poses an unacceptable risk of physical or psychological harm to the children;
e)Whether the children should continue to attend Suburb R School as proposed by the mother or should attend AA School as proposed by the father; and
f)Whether the parties should be restrained from removing the children from the Commonwealth of Australia and whether the children’s names should be placed on the Family Law Watchlist until they reach the age of 18.
Proposals
On 1 April 2020, I made orders that the parties were to file an updated Proposed Minute of Final Orders to take account of the COVID-19 pandemic.
As set out in her updated Proposed Minute of Final Orders received by email on 6 April 2020, the mother’s proposal is as follows:
1. That the mother shall have sole parental responsibility for the children Y and Z.
2. That the children shall live with the mother.
3. That Order 6 made 15 August 2019 (watchlist order) is made on a final basis.
If the Court determines it is in the children’s best interests to spend time with the father then orders in terms of paragraphs 4 - 15
4. That orders 1 - 5 made 15 August 2019 are made on a final basis subject to these Orders.
COVID-19 restrictions
5. That any order made by this Court which requires the mother to make the children available to spend time with the father is stayed until all Public Health Orders relating to outbreaks of COVID-19 made by the NSW Government under the Public Health Act 2010 are repealed.
6. If the father travels outside of the Commonwealth of Australia after the date of the making of these orders, or is outside such jurisdiction at the time these orders are made and later returns to the jurisdiction, then any order made by this Court which requires the mother to make the children available to spend time with the father is suspended for a period of 14 days commencing with the time of his arrival in Australia, and this order shall remain in force and effect for a period of 2 years as and from the date it is made.
7. If the father suffers from any symptom of COVID-19 during the 14 day period referred to in order 6 then the period in that order extends to 14 days from the date the father last had symptoms.
Collection and return of the children
8. As per minute of order sought by the ICL orders 10-12.
9. If the Court makes an order which requires the father to deliver the children to their school or schools at the conclusion of his time or during his time with the children then that order shall be taken to require the father to deliver the children to school in time to participate in any extra-curricular or co-curricular activity one or both of the children are enrolled in, provided the father has been notified in writing by the mother beforehand of the fact of such enrolment.
10. If the Court makes an order which permits unsupervised time and on any single occasion the father fails to return the children to the mother’s care in accordance with Orders then the father’s time is thereafter suspended according to the following schedule, unless the mother has agreed prior in writing that the children may be returned late:
a) If more than 15 minutes after the conclusion of time without prior written notice; and
b) If more than 30 minutes after the conclusion of time with prior written notice.
11. The Court expects that if the father is more than 30 minutes late due to a genuine emergency medical or otherwise or genuine delay and has given the mother prior written notice of the delay, then the mother’s consent to the children being returned late to her is not to be unreasonably withheld for the purposes of order 10.
Personal protection orders
12. As per minute of order sought by the ICL orders 20-21, noting change from “church” to “religious centre”.
Accommodation orders, in the event orders are made for the children to spend overnight time with the father
13. The father shall forthwith provide a copy of the lease and property particulars for the premises in which he resides, the same to have at least two bedrooms available for his exclusive use, to the mother.
14. If the father changes his accommodation he shall notify the mother in writing at least 7 days prior to such change, and within 24 hours of moving into new premises shall comply with order 13 for those new premises.
15. If at any time the father fails to comply with orders 13 & 14, including but not limited to residing in accommodation which has less than 2 bedrooms available for his exclusive use, then any order made by this Court which requires the mother to make the children available to spend time with the father is suspended until his failure to comply with the orders is rectified.
For ease of reference, Orders 1 to 6 made by Senior Registrar Campbell on 15 August 2019 are as follows:
1. The children Y born in 2012 and Z born in 2013 (“the children”) spend supervised time with the father every second weekend on a Sunday for a period of three (3) hours.
2. The supervision pursuant to Order 1 herein shall be by one of the following:
a) DD Services;
b) FF Services; or
c) In the event that neither of the first two options are available then at a children’s contact centre as agreed between the parties.
d) Such person or organisation as may be agreed between the parties in writing.
3. The parties shall forthwith do all things necessary to complete the intake process for a children’s contact centre in anticipation of DD Services or FF Services being unavailable to provide supervision.
4. The time the children spend with the father pursuant to Order 1 will be suspended when the father is unable to travel due to his religious obligation unless the father indicates that he is able to do so in writing seven (7) days before the date of the religious obligation.
5. The costs of the supervision pursuant to Order 1 and 2 will be paid for by the father.
6. That until further order each party Mr Telford born in 1980 and Ms Telford born in 1983 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children Y born in 2012 and Z born in 2013 from the commonwealth of Australia for a period of 12 months
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said child on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list for the said period, or until the Court orders its removal.
The mother also sought orders in respect of Religious holidays as set out at paragraph 20 of her Application in a Case filed on 22 September 2017 (which became Exhibit “E”) as follows:
20. These Orders for Religious holidays take precedence over all other Orders.
20.1. Subject to the Father providing providing [sic] the Mother and the Independent Children's Lawyer 4 weeks prior to the commencement of Religious holidays as listed hereunder, with an address in the Eastern Suburbs including details of accommodation and bedding where the children will spend overnight and the Mother's approval thereof, the children spend time with each of the parents during the Religious holidays as follows:
20.2 First night Religious Festival 1 in even numbered years (2018) with the Mother and in odd numbered years (2019) with the Father from 5:00pm on the 1st night until 5:00pm on the 1st day, subject to the Father complying with Order 20.1. Alternatively, from 5:00pm until 9:00pm on the 1st night and from 10:00am on the 1st day until 5:00pm on that day, being 1st day Religious Festival 1;
20.3 Second night Religious Festival 1 in odd numbered years (2019) with the Mother and in even numbered years with the Father (2018) from 5:00pm on the 1st day until 5:00pm on the 2nd day subject to the Father complying with Order 20.1. Alternatively, from 5:00pm until 9:00pm on the 2nd night and from 10:00am on the 2nd day until 5:00pm on the 2nd day Religious Festival 1;
20.4 Religious Festival 2 in even numbered years with the Father and in odd numbered years with the Mother from 3:00pm on the eve of Religious Festival 2 until 7:00pm on the conclusion of Religious Festival 2, subject to the Father complying with Order 20.1.
20.5 The 1st 2 nights of Religious Festival 3 in odd numbered years with the Father and in even numbered years with the Mother from 5:00pm on the eve of Religious Festival 3 until 5:00pm on 2nd day of Religious Festival 3, subject to the Father complying with Order 20.1. Alternatively, with the Father from 5:00pm on the eve of Religious Festival 3 until 9:00pm and then from 10:00am on the 1st day of Religious Festival 3 until 5:00pm on that day;
20.6 On the eve of Religious Festival 4 in even numbered years with the Father and in odd numbered years with the Mother, from 5:00pm until the conclusion of Religious Holiday 10 at 7:00pm, subject to the Father complying with Order 20.1. Alternatively, with the Father from 5:00pm on the eve of Religious Festival 4 until 9:00pm and from 1 0:00am on Religious Holiday 10 until 5:00pm;
20.7 The first night of Religious Festival 5 in odd numbered years with the Father from 5:00pm until 5:00pm on the 1st day of Religious Festival 5 subject to the Father complying with Order 20.1. Alternatively, with the Father from 5:00pm to 9:30pm on the 1st night and from 10:00am until 5:00pm on the 1st day of Religious Festival 5 and in even numbered years with the Mother;
20.8 The 2nd night of Religious Festival 5 in even numbered years with the Father from 5:00pm on the 1st day of Religious Festival 5 until 5:00pm on the 2nd day of Religious Festival 5, provided the Father complies with Order 20.1. Alternatively, with the Father from 5:00 p.m. on the 1st day of Religious Festival 5 until 9:30pm on the 2nd night night and in odd numbered years with the Mother, from 5:00pm on the 1st day of Religious Festival 5 onwards;
20.9 The first night of Religious Festival 6 with the Father in even numbered years from 5:00pm on the eve of Religious Festival 6 until 5:00pm on the 1st day of Religious Festival 6, subject to the Father complying with Order 20.1. Alternatively, with the Father from 5:00pm on the eve of Religious Festival 6 until 9:00pm and from 10:00am until 5:00pm on the 1st day, and in odd numbered years with the Mother;
20.10 The second night of Religious Festival 6 with the Father in odd numbered years from 5:00pm on the 1st day until 5:00pm the following day, subject to the Father complying with Order 20.1. Alternatively, with the Father from 5:00pm until 9:00pm on the 2nd night and from 10:00am until 5:00pm the following day, and in even numbered years with the Mother from 5:00pm on the 1st day onwards;
20.11 Subject to Order 20.1 where Religious holidays coincide with the time the children are spending with the Father, the children are to spend no more than two consecutive nights with the Father;
20.12 In years when the children are not spending time with the Father as per these Orders then the children shall spend the 3rd night and 3rd day of Religious Festival 9 with the Father, subject to the Father complying with Order 3. Alternatively, from 5:00pm until 9:00pm on the 3rd night and if Religious Festival 9 falls on a school day, from the conclusion of school until 6:30pm or otherwise from 11:00am until 5:30pm on the 3rd day.
As set out in his Updated Proposed Minute of Final Orders received by email on 6 April 2020, the father’s proposal is as follows:
1. That upon the father’s return from Country GG and in accordance with the current guidelines for the COVID-19 circumstances, the father shall self-quarantine for a period of 14 days and for these purposes the father shall have contact with the children via video call or Skype every day at 5pm for the duration of this period.
2. Upon expiration of Order 1 and the father does not test positive for COVID-19, then the children Y born in 2012 and Z born in 2013 (“The Children”) live with the father.
3. That the parents have equal shared parental responsibility for the children.
4. That unless otherwise outlined in the Orders and set out below, the Father have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during the periods when the children are spending time with him.
5. That the Mother has sole parental responsibility for making decisions about the day to day care, welfare and development of the children during the periods when the children are spending time with her.
6. That the children spend time with the mother as follows:
6.1. During school term, every second weekend from after school on Friday until the commencement of school on Monday morning;
6.2. Half of school holidays with their Mother and half with their Father;
6.3. For Religious Festival 1 and Religious Festival 2;
6.4. From the conclusion of school Friday until the commencement of school Monday on Mother’s Day weekend;
6.5. On the Mother’s 2nd birthday:
6.5.1. If a school day, from the conclusion of school until the commencement of school the following day;
6.5.2. If on a Saturday from the conclusion of school Friday until 9:00am Sunday;
6.6. If on a Sunday from 9:00am Sunday until the commencement of school Monday.
6.6.1. That the time with the Mother abates when she is spending time with the children so that they spend the following Religious holidays with the Father:
a. The first three days and night of Religious Festival 3 every year with their father;
b. The first four days and nights of Religious Festival 5 every year with their father;
c. The first four days and nights of Religious Festival 8 every year with their Father;
d. Religious Festival 8 every year with their Father;
e. Religious Festival 6 every year with their Father
f. For the children’s birthdays as they fall on the 1st calendar:
i.If a school day, from the conclusion of school until the commencement of school the following day;
ii.If on a Saturday from the conclusion of school Friday until 9:00am Sunday;
iii.If on a Sunday from 9:00am Sunday until the commencement of school Monday.
6.7. At other times as may be agreed between the parties from time to time.
7. In the alternate, if the Court deems the children safe to live with the mother, then the children should spend time with the father as follows:
7.1. From Wednesday after school to Monday before school;
a. The first three days and night of Religious Festival 3 every year with their father;
b. The first four days and nights of Religious Festival 5 every year with their father;
c. The first four days and nights of Religious Festival 9 every year with their Father;
d. Religious Festival 8 every year with their Father;
e. Religious Festival 6 every year with their Father
f. For the children’s birthdays as they fall on the 1st calendar:
i. If a school day, from the conclusion of school until the commencement of school the following day;
ii. If on a Saturday from the conclusion of school Friday until 9:00am Sunday;
iii. If on a Sunday from 9:00am Sunday until the commencement of school Monday.
7.2. At other times as may be agreed between the parties from time to time.
7.3. For the autumn, winter and spring school holidays of NSW school holidays for the first half, in odd numbered years and in the second half for even numbered years;
7.4. For the summer school holidays on a week about basis.
8. For the purposes of collection and handovers:
8.1. If a school day, the parent having the children overnight shall collect the children from school that day and deliver the children to school the next morning.
8.2. If not a school day, the parent with whom the children have been living shall deliver the children to K Shopping Centre outside Woolworths or as agreed.
9. That each of the parties shall be at liberty to communicate with the children by telephone and/or Skype and or WhatsApp (or other such electronic communication) when they are in other party’s care and, failing agreement, with such calls to be each Tuesday or Thursday and to commence between 6pm and 7pm on those days.
10. That further to the immediate preceding order, each of the parties:
10.1. Shall, if necessary, make their mobile telephone available to facilitate such calls between the children and the other party; and
10.2. Shall not hinder or prevent the children from initiating reasonable telephone communication with the other party at all other times.
11. That the parties shall keep each other informed of any change in their residential address, landline, mobile telephone numbers or personal email addresses within 24 hours of such change taking place.
Parent Communication
12. That the parents shall communicate with each other in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the children.
13. That the parents shall use email to communicate regarding all non-urgent matters and text message to communicate regarding urgent matters, for clarity, urgent matters are matters that require the other parent to be aware to take action within 24 hours.
14. That in the event either of the children is hospitalised, the parent in whose care the children is in shall notify the other parent as soon as practicable by telephone call and no more than 2 hours after the event, such notification will include sufficient details that have been made available to enable both parties to be consulted in respect to and being fully advised regarding such illness or condition and any treatment.
15. That the parents shall keep each other informed of any change to their residential address (although neither party shall be obliged to furnish their residential address to the other party, rather an address at which the children can be collect during an emergency), telephone number and personal email addresses and notify the other parent within 24 hours of any change.
16. That the parents are to consult with each other about non-urgent long-term decisions to be made in the exercise of their shared parental responsibility as follows:
a. Inform each other via email about the decision that needs to be made relating to a major long-term issue for the children not less than 7 days prior to any major long-term decision needing to be made; and
b. Discuss via email the decision that needs to be made and provide all relevant information that must be considered to make an informed decision on the issue; and
c. In the event the parents are unable to reach a joint decision about a major long-term issue involving the children, the parties will do all acts and things necessary to participate in Family Dispute Resolution with a person authorised to do so under the Family Law Act 1975.
17. That on without admission basis, the mother and father be hereby restrained from speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleased fashion in the presence or hearing of the children.
18. That the parents be and are hereby restrained from discussing the proceedings with the children or within his presence or hearing or from showing him any document pertaining to the proceedings and they shall use their own best endeavours to ensure that no other person does so.
Medical
19. That each parent keep the other parent informed as to any other matter relevant to the welfare of the children including but not limited to the children receiving medical attention, being prescribed medication or attending any health practitioners.
20. That each party shall authorise all health and medical practitioners to provide all information as to the children’s health to both parents as either parent may require or may be requested directly by either parent of the treating practitioner.
21. That should the children be unwell while in either parent’s care and require the administration of mediation [sic], then that parent shall advise the other parent at the time of changeover of any medication recently given or required to be given while the children is in the other parent’s care.
Education
22. That the children be enrolled and attend AA School.
23. It is noted that the parents will enter into a Binding Child Support Agreement requiring them to share the costs of the children’s education at the said college with the father agreeing to cover the tuition and the mother agreeing to cover anything else such as uniforms, books, excursion, and extra curricular school based activities.
24. That the parties keep each other informed as to significant events occurring in the children’s life, including whenever applicable, but not limited to, parent/teacher interviews, sporting events and invitations received by or on behalf of the children.
25. That the parties do all acts and things and sign all documents necessary so as to ensure each of them whenever applicable receives a copy of the children’s school reports, newsletters and other relevant notices issued by the children’s school.
26. That each parent be entitled to obtain directly from any school attended by the children copies of any reports, notices, school photos or other relevant verbal or written advise affecting the education and welfare of the children, at the cost of the requesting parent.
27. That both parents and their respective partners are entitled to attend all events involving the children including:
a. Sporting events;
b. School graduations and award ceremonies;
c. Extracurricular that allow for parental attendance; and
d. School functions that allow for parental attendance including but not limited to concerts, assemblies, sports days, parent/teacher interviews, canteen duties and social functions and the parent who has the children in their care on the day or such activities will be responsible for their day to day care at such event and their transportation to and from such event.
Travel
28. That all travel arrangements for the children are to be made during their respective time with each parent unless otherwise agreed between the parents in writing.
29. That the parent with whom the children are living with will retain the children’s passports and will provide the passport to the other parent within 48 hours of being requested to do so but no sooner than 14 days prior to the date of departure and on the parents return from travel with the children, the parent will return the passport to the other parent within 7 days of such travel.
30. That pursuant to section 65Y of the Family Law Act 1975 either parent is at liberty to take the children outside the Commonwealth of Australia for a holiday and if either parent nominates to take the children on an international holiday the following Orders shall apply:
a. The parent wishing to take the children outside of Australia shall provide the other parent no later than 30 days prior to their departure date the location and approximate length of time the children will be outside of the Commonwealth of Australia;
b. No later than 10 days prior to departure, the travelling parent shall provide to the other parent a copy of their travel itinerary, flight details, contact phone numbers for accommodation which has been arranged for the children whilst they are travelling and emergency contact phone number;
c. The parent travelling with the children shall ensure that the children communicates with the other parent at least twice a week during the holiday, with the travelling parent to email the non-travelling parent at least 7 days prior to departure advising of the days and times that the children will be calling the non-travelling parent; and
d. The travelling parent shall ensure that they return the children to the Commonwealth of Australia on the date provided for in the travel itinerary.
31. In the event that either parent loses or misplaces the children’s current valid passport that parent is to replace the lost of missing passport at their cost within 30 days of the passport being lost or missing including covering any fees that might need to be paid if there is an urgent need for the passport.
32. Such further or alternative relief as this Honourable Court deems fit.
Conclusion
For the reasons given I am satisfied the orders set out at the commencement of this judgment should be made.
I certify that the preceding three hundred and thirty eight (338) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 18 September 2020
Associate:
Date: 18 September 2020
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