TILLEY & DENTON (No.2)
[2014] FCCA 1919
•25 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TILLEY & DENTON (No.2) | [2014] FCCA 1919 |
| Catchwords: FAMILY LAW – Parenting – spends time with arrangements – responsibility for sharing travel – statutory obligations in this regard. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 Tilley & Denton [2014] FCCA 561 |
| Applicant: | MR TILLEY |
| Respondent: | MS DENTON |
| File Number: | WOC 129 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 30 July 2014 |
| Date of Last Submission: | 30 July 2014 |
| Delivered at: | Wollongong |
| Delivered on: | 25 September 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Humphreys |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
Orders for Parental Responsibility
That the Mother and the Father shall have the equal shared parental responsibility for the Child, X born (omitted) 2010 ("the Child").
That each parent shall have the sole responsibility for making decisions about the day to day care, welfare and development of the Child whilst the Child is living with or spending time with them respectively.
Orders for Living with Each Parent
That the Child shall live with the Mother at all times that he is not otherwise spending time with the Father in accordance with these Orders.
That the Child spend time with the Father at such times as agreed between the parties and as follows:
(a)From the date of these Orders and in a four weekly cycle with Week 1 to commence on the first Saturday following the making of these Orders;
(i)Week 1 – From 10:00am to 4:00pm on Saturday, with changeover to take place at the residence of the Paternal Grandmother
(ii)Week 2 – From 12 noon to 4:00pm on Sunday with changeover to take place at the Mother's residence.
(iii)Week 4 –
A.From 10:00am to 4:00pm on Sunday with changeover to take place at the Mother's residence.
B.From after playgroup to 4:00pm on Monday with the Father to collect the Child from playgroup at the commencement of such time and return the Child to the Mother's residence at the conclusion of such time.
(iv)For the sake of these Orders it is noted that the Paternal Grandmother resides in (omitted) while the Mother resides in (omitted) and the Father resides in (omitted).
(v)In the event that the Paternal Grandmother is unable or unwilling to facilitate contact changeover at her residence in (omitted) then changeover on such occasions shall occur at (omitted)(omitted)(omitted).
(vi)The Mother shall be permitted to suspend the Father's time pursuant to Order 4(a)(ii) on one occasion provided she gives the Father at least 28 days' notice in writing (including text message), and if the Mother is taking the Child on a holiday, she is, at the time of notifying the Father of the suspension of time, to provide to the Father with an itinerary including details of accommodation.
(b)From 1 July 2015, in a four weekly cycle with commencement to coincide with the same weekly cycle as exists pursuant to Order 4(a) above:
(i)Week 1 – From 10:00am Saturday to 4:00pm Sunday, with changeover to take place at the residence of the Paternal Grandmother
(ii)Week 3 –
A.From 10:00am to 4:00pm on Sunday, with changeover to take place at the Mother's residence.
B.Until the Child is no longer attending playgroup, from after playgroup to 4:00pm on Monday, with the Father to collect the Child from playgroup at the commencement of such time and return the Child to the Mother's residence at the conclusion of such time.
(c)From 1 July 2016 and thereafter (subject to Order 6 and with commencement to coincide with the same weekly cycle as exists pursuant to Order 4(b) above):
(i)During school term, each alternate weekend from 5:00pm on Friday to 4:00pm on Sunday as follows:
A.Week 1 – The Child is to spend time with the Father in the (omitted) region on the Friday night and thereafter in the (omitted) and (omitted) region until the conclusion of time;
B.Week 3 – The Father is at liberty to take the Child to (omitted) during the period the Child spends time with him in accordance with Order 4(c)(i).
(ii)During school holiday periods
A.Until the Child commences Year 1 at school (being Term 1, 2017), for a period of three weeks in total each year, subject to the following conditions:
1. That such school holiday periods are to be for not more than one week at a time (with at least one week in between each period); and
2. The Father shall give the Mother at least 28 days written notice of his intention to exercise time pursuant to this Order and the dates that the Child will be spending time with him.
B.From the time the Child commences Year 1 at school (being Term 1, 2017):
1. For one half of the school holiday periods at the end of Term 1, Term 2 and Term 3, at times to be agreed, and failing agreement, for the first week in even years and the second week in odd years;
2. For one half of the school holiday period at the end of Term 4, to occur by way of an alternating week about basis, at times to be agreed, and failing agreement, to commence the first week in even numbered years and the second week in odd numbered years, and if either parent wishes to take X on a 2-week holiday in the holiday period at the end of Term 4, they can do so by providing the other parent with 28 days’ notice in writing, along with a full itinerary, and that such time is ‘swapped’ and is not in addition to the time that parent has with X.
Orders for Spending Time with Each Parent Upon Significant Occasions
That the Child spend time with the Father (when not already spending time with the Father pursuant to Order 4) as follows:
(a)Upon such occasions as the parents agree from time to time;
(b)From 2016 and each alternate year thereafter, from 10:00am Christmas Eve to 10:00am on Boxing Day, and in 2014 on Christmas Day for a period of two hours as agreed between the parents.
(c)Father's Day –
(i)In 2014 – The Child shall spend time with the Father on the weekend that includes Father's Day from 10:00am to 4:00pm Sunday with changeover to take place at the Mother's residence.
(ii)Thereafter, from 10:00am Saturday to 4:00pm Sunday with changeover to take place at the residence of the Paternal Grandmother in (omitted).
(d)By Skype (once the Mother has obtained all necessary programs, connections and machines to enable this to occur, and the Child attains the age of four years), each Christmas Day, Child's birthday, Father's birthday, and such other times as agreed between the parties.
(e)On the Child’s birthday on (omitted) 2014 from 11:00am to 2:00pm, with the Father to collect X from, and return him to, the home of the Mother.
(f)Notation: The parties shall give consideration to making X available to attend at major celebrations in each other's extended families such as weddings and milestone birthdays and anniversaries.
That the Child spend time with the Mother (when not already living with the Mother pursuant to Order 3) as follows:
(a)Upon such occasions as the parents agree from time to time;
(b)From 2015 and each alternate year thereafter, from 10:00am on Christmas Eve to 10:00am on Boxing Day;
(c)Mother's Day – Order 4 shall be suspended on the weekend that includes Mother's Day;
(d)By telephone – at any time that the Child expresses a desire to do so at which time the Father shall facilitate the Child's wish by contacting the Mother for the Child if required.
That each parent be entitled to attend all events involving the Child including, but not limited to:-
(a)sporting functions;
(b)extra-curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation;
AND the parent who has the Child in their care on the day of such activity will be responsible for the day to day care of the Child at such event including the Child's transportation to and from the event unless otherwise agreed on between the parents.
That neither party will enrol the Child to participate in weekend sport, or other regular weekend extra-curricular activities, without the express written approval of the other parent.
That for the purposes of facilitating the changeover of the Child (where not already referred to in these Orders) such arrangements will be as agreed between the parents but failing agreement the parties shall meet and the residence of the Paternal Grandmother in (omitted) (or (omitted)).
That each parent shall permit the Child to convey between their respective residences any particular toy that the Child wishes to take with him (within practical reason) and shall use their best endeavours to ensure that such toy or toys are not left behind by the Child when travelling to the other parents' residence unless the Child has expressed such a wish.
Orders for Parental Communication
That each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the Child whilst in the care of either parent;
(b)any medication that has been prescribed for the Child;
(c)any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child;
(d)any significant social, school or religious functions which the Child is to attend;
(e)their residential address and telephone contact number;
(f)any other matter relevant to the welfare of the Child.
Each of the parents are to be permitted to liaise directly with the Child’s school, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the Child’s progress and that both parents are to authorise the school, sporting bodies and/or other organisations to facilitate this.
Both parents are hereby authorised to receive any information from the Child’s school including but not limited to: copies of the Child’s school reports as they fall due along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the Child to ensure that the school forwards these items to both parents.
Orders Restraining the Parents
That each parent is restrained from physically disciplining or shouting at the Child, or allowing any other person from physically disciplining or shouting at the Child.
That each parent refrain from making critical or derogatory remarks about the other parent or members of the other parent's family in the presence or within hearing of the Child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent or members of other parent's family in the presence or within hearing of the Child.
That for the purpose of communicating information between the parents the Father and Mother shall communicate by Communication book, SMS text message or email and shall be restrained from using the Child as a messenger.
Orders for Dispute Resolution
That in the event the parents cannot reach a joint decision about:-
(a)any major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders;
each of the parents will do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act 1975.
That before an application is made to a Court for a variation of these Orders, to take account of the change in needs or circumstances of the child or of the parties, each of the parents is to participate in family dispute resolution with a person authorised under the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Tilley & Denton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 129 of 2013
| MR TILLEY |
Applicant
And
| MS DENTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born (omitted) 2010. X is nearly 4 years old. His father is the applicant. He is a (occupation omitted) and (occupation omitted), is 43 years old, and lives in (omitted). X’s mother is the respondent. She is 36 years old, describes herself as undertaking home duties, and lives in (omitted). X’s parents have been able to agree about the vast majority of parenting issues in dispute, and these reasons explain why the Court has made Orders in relation to outstanding discrete issues.
Background
The Father is profoundly deaf and has been since birth. The Mother is hearing impaired. X is deaf. Both X and his father have cochlear implants. The evidence in this case was given with the assistance of Auslan interpreters.
X’s parents commenced their relationship in 2007, X was born in 2010, and the parents separated in 2012. They lived in (omitted) during their relationship, but after separation X and his mother moved to the (omitted), which is where the Mother originally came from.
Given the narrow ambit of the dispute, the Court does not believe it necessary to set our further historical matters. Suffice it to say that after separation, the parents could not always agree about the arrangements for X to spend time with his father. The Father eventually commenced this Court case. On 10 September 2013, Judge Terry made an Order that the Father continue to spend time with X in accordance with an interim parenting plan they had agreed to. A Family Report was ordered. After the report was released, and following an interim hearing, the Court made Orders changing that arrangement. As at the final hearing, therefore, X was spending time with his father:
a)In week one, from 10:00am until 4:00pm on Saturday, with changeover at the home of the Paternal Grandmother in (omitted); and
b)In week two, from 12noon until 4:00pm on Sunday, with changeover at the Mother’s residence; and
c)In week four, from 10:00am until 4:00pm on Sunday, with changeover at the Mother’s residence, and from after play group until 4:00pm on Mondays.
There is no question that the Orders the Court made on 18 March 2014 significantly reduced the time X spent with his father. The reasons for judgment were published as [2014] FCCA 561.
By the time the final hearing concluded on 30 July 2014, the parents had entered into Consent Orders in the form that is reproduced in the first schedule to these reasons. This document incorporates the Consent Orders made 22 July 2014, as well as the further Consent Orders made 30 July 2014, as well as identifies the issues in dispute.
Issues for Determination
There remained four issues for determination which the Court records as follows:
a)Weekend contact: Whether X should spend time with his father, from 1 July 2016 when he is nearly 6 years old and will have started school:
i)each alternate weekend from 5:00pm on Friday until 4:00pm on Sunday, with changeover at (omitted), as the Father proposes; or
ii)on:
·the first alternate weekend from 5:00pm on Friday until 4:00pm on Sunday, provided it is in the (omitted) region, and with changeover at the Mother’s residence; and
·the second alternate weekend from 10:00am on Saturday until 4:00pm on Sunday, with changeover at (omitted).
The Mother did signal to the Court some flexibility about her proposal, in evidence. For example, she was flexible about which weekend was to be spent in the (omitted). Moreover she would countenance the first night of a weekend being in (omitted).
b)Christmas Day/Boxing Day: Whether, from 2016, and each alternate year thereafter, the Father’s time with X that was agreed to start at 10:00am on Christmas Eve would conclude at;
i)4:00pm on Boxing Day as the Father proposes; or
ii)10:00am on Boxing Day as the Mother proposes.
The parents were agreed that on Christmas Day 2014 X would spend two hours with his father as agreed between them.
c)Father’s Day: Where, in circumstances that the parents agree that X should spend Father’s Day with his father from 10:00am on Saturday until 4:00pm on Sunday, the changeover should be:
i)At (omitted), as the Father proposes; or
ii)At the Mother’s residence, as the Mother proposes.
d)Changeover generally: Where the changeover location is not otherwise specified, whether it should be:
i)At (omitted), as the Father proposes; or
ii)At (omitted) at the commencement of time, but at the Mother’s home at the conclusion of time, as the Mother proposes.
The Mother’s concerns, repeated several times in her evidence and on her behalf in submissions, related to how X would cope with absences from her, and the extensive travel that would be involved in spending time with his father. This raises issues about the nature of X’s relationship with his father and, to a lesser extent, his parental capacity and insights.
The Evidence
The Father relied on the following affidavits:
a)Affidavit of Ms A, filed 15 July 2013; and
b)Affidavit of Mr Tilley, filed 16 July 2014
The Mother relied on her Affidavit, filed 17 July 2014.
The Family Consultant’s report is dated 2 February 2014
The Father, Mother and Family Consultant were all cross-examined.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act 1975, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Uncontroversial Findings
Having regard to the very limited ambit of the dispute it is possible to make some findings that should be relatively uncontroversial.
a)There are no credit issues in this case. Both parents gave their evidence clearly and honestly. The fact that they cannot agree on matters relating to X has nothing to do with that honesty and integrity.
b)It is clear they both love X. X is very lucky to have his parents.
c)The travel time between the Mother and Father’s residence is as little as 3 hours 20 minutes in favourable traffic but could be as much as 4 hours in moderate traffic.
d)If X is to spend time at his father’s home in (omitted), over the period that he spends time with his father and is returned to his mother, he will directly experience this travel time.
e)Each weekend that the Father collects and returns X from (omitted) will involve the Mother travelling about 376km.
f)For X, of course, each weekend that he spends time with his father in (omitted) will involve him travelling about 1000km, and spending at least 6 hours 40 minutes in the car, and more likely 8 hours.
g)The Mother’s proposal for one alternate weekend in the (omitted) spares X having to travel, but creates other logistical problems for the Father (e.g. accommodation) as well as potentially limiting the range of experiences X might have with him.
h)The Mother’s proposal for the other alternate weekend Saturday to Sunday contains no requirement that X actually spend time with his father in (omitted). Indeed the Father’s evidence is he would return to (omitted) anyway.
i)Both parents agreed that the Paternal Grandmother’s residence in (omitted) was not an ideal environment for X to spend extended time with his father.
j)There appears to be no communication difficulties as between X and each of his parents.
k)However, each of X’s parents struggle in the communication with each other, though their relationship is civil.
Evidence of the Family Consultant
Ms L is a Regulation 7 Family Consultant who prepared the Family Report dated 2 February 2014. She was also cross-examined at the hearing. As she is the only independent and expert witness in this case, her evidence has particular importance. Reference will only be made to those parts of her evidence relevant to the issues before the Court.
Ms L recognised at [3] of her report, and in her oral evidence, that there were limitations as to the depth and quality of the information gathered because of the parties’ disabilities.
At [12] Ms L records what the Father told her in relation to X:
Mr Tilley reported that the time he spends with X has been going very well. He said that X always seems very happy to see him and he is very sad to leave him. Mr Tilley said that X can seem quite insecure at times when he is with him and he is loath to let Mr Tilley out of his sight. Mr Tilley said that X is prone to be unsettled at night and so he allows X to sleep in the same bed with him.
The Father was reported to have expressed a belief about X’s behaviour that he clearly still held at the hearing. Paragraph 19 of the report states:
Mr Tilley said that, as happy as he is that he now gets to spend every second weekend with X, it is simply not enough time for them to properly enjoy each other’s company. Mr Tilley expressed the belief that X’s behaviour – being clingy, anxious, and not wanting to leave Mr Tilley – means that X would benefit from spending more time with him. Mr Tilley said that because the overnight stay also involves the drive to and from (omitted), X barely has time to settle in before he has to leave again.
At [21] the Father’s view about travel was recorded:
The burden of travelling that falls on X was discussed with Mr Tilley. He acknowledged that the distance is a considerable one, and X is the person who has to do all of the travelling, but Mr Tilley believes that X is now used to the travelling and he loves being in the car and looking around. Mr Tilley said he has not noticed any negative effects of the travel on X except that it occurs over a very short period of time and does seem to tire him out, which would of course be mitigated if X was to have longer weekends with him.
Again, this is a view he continued to hold at the hearing. The Mother’s concerns are recorded at [27] to [28]:
27. Ms Denton reported that X coped reasonably well with the weekend day visits but he has struggled to cope with the overnight visits. Ms Denton said that X looks forward to spending time with his father – appearing happy and excited at the prospect – but at the end of the weekend, “he is really restless and tired and cranky.” Ms Denton said it usually takes her about three days to settle X back down into a routine and calm his behaviour, which can be quite agitated.
28. Ms Denton expressed the view that X has to do too much travel for a child of his age and this is very disruptive to the strong routine that she has established whereby X has different therapeutic activities every day of the week except for Thursday.
Observations of parent-child interactions are often an important feature of a Family Report. The relevant ones are recorded at [48] to [51]:
48. X’s emotional response to his father was somewhat ambivalent. While he seemed quite happy to play with his father, and to show him things of interest, there was no physical affection between the two of them. X made no effort to kiss or cuddle his father and he did not sit on his lap or try to get close to him physically. In fact, X at times seemed to choose to stand or sit quite separately to his father, and he would move away if his father got too close, as if he was creating a safe distance between them.
49. At the end of the session, in a mixture of speech and signing, X was told that his father would be leaving. He barely acknowledged this information and went on playing. Mr Tilley approached him and picked him up for a cuddle. X was noted to hold himself quite rigidly in his father’s arms and he turned his head away from being kissed. X struggled to get down and when his father put him down, he ran away to play with another toy. Mr Tilley then left the room quickly.
50. When his mother entered the room, X looked up and smiled at her. She went over to where he was playing with a puzzle on the floor and started playing it with him. Ms Denton and X communicated in speech throughout the session. They did not sign at all. Mr Tilley was quiet in her manner with X but markedly educational in her approach, testing his knowledge of colours, shapes and numbers. She strongly structured his play.
51. During his time with his mother, X appeared much more relaxed and less physically wary. He smiled considerably more and (naturally) he vocalised much more. X was noted to test disciplinary boundaries with his mother several times (insisting on playing games that were too old for him) and she dealt with him quietly but firmly and he was observed to comply quickly and settle down to more age appropriate games.
The Family Consultant’s evaluation was an extensive one. In reality, much of what she says has been taken on board by the parents in reaching the agreement that they have. In these reasons, therefore, the focus will remain on the contentious issues only.
At [54] of her report, and in her oral evidence, the Family Consultant urged the parents, but especially the Father to focus on the quality of the time that he spends with X, and not its quantity:
In cases where a very young child moves between their parents, each parent may interpret the child’s behaviour pre and post visitation as being evidence that the child needs to be with them, either on an exclusive, fulltime basis (the residential parent) or for longer periods of time (the non residential parent). Neither of these options are usually what is needed. What is required is a visitation regime that puts the child’s developmental needs first and foremost (even when these needs may be in direct conflict with what a parent wants or believes that the child wants) and which seeks to balance these developmental needs with the concomitant need for the child to have every chance to have a meaningful relationship with each of their parents. Spending regular overnight time with the non residential parent is only one way that a positive, warm and nurturing relationship can be built between a parent and their child. What matters far more than overnight time per se is the quality of the time that a parent spends with a child.
There is specific reference to travel time at [55] to [56] in the context of a discussion about how parenting arrangements affect X:
55. In this matter, an outcome of mediation held at the end of 2012 was an agreement that X should commence spending overnight time with his father when he was 2 years and 4 months old. This arrangement requires X to be in a car travelling for approximately 3 ½ hours on Saturday and back again on the Sunday. While the journey between (omitted) and the (omitted) is broken up with a brief stop at the paternal grandmother’s house in (omitted), it is nonetheless, an enormous journey for a young child to undertake on such a regular basis. X’s special needs mean that he is already at a disadvantage when negotiating the emotional landscape of his parents’ separation. It does not seem that this was taken into account when the interim parenting plan was developed.
56. Both parents gave accounts of X’s behaviour during and after his visits with his father which is consistent with a child who is struggling to cope emotionally with the situation. Mr Tilley, however, strongly believes that X’s clingy and insecure behaviour is an indication that X needs to spend more time with him. While some basic information was given to Mr Tilley about a child’s attachment needs, and how attachment problems can manifest themselves, he did not seem willing to take this information on board. He insisted (and repeated these views emphatically in a follow up email) that X’s best interests would be best met by them spending more time together – that it was their lack of time together which was causing X to become anxious. Specifically, the lack of more overnight time.
Paragraphs [58] to [59] explain why the Court made the interim orders it did on 18 March 2014, reducing the Father’s time. However, at [59] some relevant observations are made:
…The logistics involved in having regular visits when the parents live some distance away from each other are always complex and usually more frequent contact is not a viable solution. However, in this situation, X’s needs are such that it is the parent/s that must make the effort to ensure that the relationship between father and son is maintained successfully.
The travel issue, as well as the Father’s concerns, are discussed at [61] to [63]:
61. Mr Tilley’s objections to travelling to (omitted) on a regular basis are noted. However, these objections appears to be based either on the inconvenience factor (which is not an issue for consideration) or on financial factors (which may be able to be counter-balanced with an adjustment in child support or other expenses that Mr Tilley currently contributes to). It is not reasonable that X is the one who is currently shouldering all of the travel burden and Mr Tilley needs to put aside his objections for the sake of X’s wellbeing, and ultimately, for the sake of their relationship.
62. Mr Tilley is also keen for X to maintain his connections with the former marital home and the local (omitted) community. This is understandable but it is not as important for X as simply spending time with his father is. For these reasons, X’s weekend time with his father (if not occurring in (omitted)) should occur in (omitted), using the paternal grandmother’s house as the base.
63. Any new arrangement which is put in place should remain consistent for at least 12 months in order to provide X with a sense of security, stability and predictability. Any subsequent changes to this arrangement should take place gradually and the emphasis should remain on limiting the amount of travel which X is required to do.
It is quite clear that the Father continued to feel the same way at the hearing.
The Family Consultant’s relevant recommendations are at [67] to [69]:
67. It is recommended that X spend time with his father in the following way:
- In week 1, in (omitted) from 10am-4pm on Saturday with the mother driving him to and from the paternal grandmother’s house;
- In week 2, from 12-4pm on Sunday in (omitted), with the father picking him up from and dropping him back to the mother’s house;
- In Week 4, from 12-4pm Sunday in (omitted), with the father picking him up from and dropping him back to the mother’s house; and then
- Also in Week 4, from after playgroup on Monday until 4pm.
68. It is recommended that after these arrangements have been in place for a minimum of 12 months that the time in Week 1 could be extended to commence at 10am Saturday and finish at 4pm on Sunday.
69. It is recommended that no further changes are made to the spending time arrangement until X has finished his first year of school and that at this time, the parents engage in mediation in order to develop a new parenting plan that best meets X’s needs in the longer term.
Before setting out the oral evidence given by Ms L it is important to note that the focal point of the present dispute is principally from 2016. X will be 4 years old shortly. By this time in 2016 he will be nearly 6 years old. By the end of 2016, X will have finished his first year at school. Indeed, Counsel for the Mother explored with Ms L the potential consequences of introducing another overnight for X, during his first year at school. The additional overnight is, of course, one of the points of difference between the parents, as from 1 July 2016. Ms L was more concerned about the distance and the travel, and how “X shoulders the burden” of travel, rather than the introduction of an overnight. She seemed comfortable with another overnight if it were in the (omitted), so there would be less travel for X. Indeed her support of the Father’s proposal for school holiday time (subsequently accepted by the Mother) demonstrates that her main concern was travel and distance, rather than overnights.
When cross-examined by the Father, Ms L was again focussed on the quality of the Father’s time with him, rather than the quantity. Clearly what she was concerned about was that the travel time could not be regarded as quality time per se, but also, and perhaps more seriously, any unsatisfactory experience that X has in travel may be played out in the Father’s time with him, something that the Father had already reported to her, e.g. at [12]. When the Father pointed out to Ms L how much more travel he does in order to spend time with X, compared to X, she gently but firmly reminded him that as a parent he should be doing the bulk of the travel instead of the child.
The Court accepts Ms L’s evidence. Nothing was put to her that caused her to reconsider her recommendations or evaluation.
Evidence of the Parents
With great respect to the parents, nothing they said in their oral evidence really added to the evidence before the Court insofar as it related to them. The Court was able to form some impressions about them, however, as a result of observing them give evidence.
The Mother demonstrated a child-focus and flexibility that was clearer in her oral evidence than in her written evidence. Thus she explained that as X became older he might be able to better cope with travel including, for example, travelling by train from (omitted) to (omitted). She explained she was open to possible variations of her proposal so that X spent one night in the (omitted), and one night in (omitted). She demonstrated that she was able to take on board Ms L’s oral evidence, and made several concessions about issues that were contentious till that time.
By contrast, the Father remained resolute in his conviction that travel was not an issue for X, and that the real problem was that he was not spending enough time with his father. While there is no question about his love for X, there does remain an issue about his insight into X’s needs.
Discussion
Even though the issues in dispute are quite limited, the issues must be determined by reference to law. The parties have agreed about equal shared parental responsibility. Neither party proposes either equal or substantial and significant time. Even though, therefore, s.65DAA does not apply, there is a certain persuasiveness in the High Court’s admonition in MRR v GR [2010] HCA 4 at [15] to consider the reality of the situation for the parents and the child. It also means that there is focus on issues of practical difficulty and expense associated with spending time with a parent: s.60CC(3)(e). All of this must be considered in the broader context of s.60CC(3), and particularly relationship issues.
At a very pragmatic level, the Court is satisfied that the Father is better able to cope with the financial costs associated with his time with X. His financial position is clearly superior to that of the Mother. But the burden that he bears in terms of travel is also significantly greater than that of the Mother. The Court finds she can afford the cost of travel to (omitted) if that is adjudged to be in X’s best interests. She can afford to do that even if it were to mean several trips a month. This Court believes that it is important for a child to see that each parent is actively engaged in travel that facilitates him spending time with his father. It is consistent with the statutory scheme in Part VII of the Act that conveys a sense of the mutuality of the responsibilities of parents, e.g. ss.60B(1)(a), (2)(a), (3)(b) is explicit in its reference to “both” parents; s.60B(2)(c) emphasises that “parents jointly share duties and responsibilities” relating to their children. In a case like this where the Court finds that no s.60CC factors contra-indicate the Mother’s involvement in contact related travel, these objects and principles are important signposts indicating the mutuality of the parents’ obligations. Thus, as a general principle to be applied to this case, the Mother should be sharing the travel, noting that her share is still significantly smaller than the Father’s share.
The real issue is where the Father should spend time with X, a matter that has a great bearing on who really bears the burden of travel, i.e. the Mother, the Father, or X? The issue of where is also linked to the issue of how much time X should spend with his father. The other significant variable in this case is for what period these Orders will be operative, the general consensus being that they will need to be reviewed at the end of X’s first year in school, i.e. end of 2016, beginning of 2017.
The Mother’s submissions as to why X should be spending time with his father in the (omitted) area is as convincing as the Father’s submissions as to why this time should be in (omitted). The disadvantage is the travel for him. The benefits and the disadvantages to X, and to his parents, need to be balanced. By 1 July 2016 the Court believes that X will be able to sustain a two night absence from his mother. Even the Mother concedes this, implicitly, in the Orders that she agreed to. The alternate weekend time should, therefore, begin at 5:00pm on Friday and conclude at 4:00pm on Sunday and there is no need to make a distinction between weekends.
The Court does see benefit in the Father commencing at least one of the first alternate weekends mostly in the (omitted), even if he does not spend the whole weekend there. It will bring the Father closer to X’s school and community and provides an opportunity for him to engage with X’s world. It provides for a more relaxed Friday night with X because he is not travelling long distances that night. Whilst there is a cost to the Father of accommodating X and himself in the (omitted) on a Friday night, it is limited to that one night in each four week period. The Father will cope with the financial burden of this.
What the Court finds more troubling is whether to restrict X’s movement on the Saturday and Sunday on the first of the alternating weekends? Clearly that is the Mother’s preference, but not the Father’s. The Court believes it is in X’s best interests to limit his movement to (omitted) on this weekend, but not to (omitted). It seems that the Paternal Grandmother’s home may be another possible place for X and the Father to stay on the Saturday night of the weekend in question. The Court accepts that both parents considered this not to be ideal. The photos of the Grandmother’s home indicate new, modern, light-filled residential accommodation, the most notable draw-backs being small external areas, and internal steps that looked somewhat child unfriendly. The evidence indicates, however, the X already spends time there so it is a familiar environment for him. It is clear she is involved in X’s life and very supportive of both X and the Father. It does not appear impractical, therefore, to limit X’s time with his Father on the Saturday/Sunday of this first alternate weekend to (omitted), with the Grandmother’s home as a base. The Court recognises that in making an Order to this effect it is, in reality, formulating and accepting its own proposal, being one not put to the parents during the hearing. Provided the Court believes it to be in X’s best interests, whilst accepting that it is less than ideal to make an Order which is outside the parents proposal without notice to them, it is nonetheless permissible. The focus must be on X, and not on his parents. On this first of the alternate weekends with his father, he starts off in his community, moves to his grandmother’s community, but always remains in the presence of his father. The range of activities available to the Father and X in both the (omitted) and (omitted) are, one would have thought, quite substantial. At the conclusion of this weekend, the Mother will pick him up from the Grandmother’s home at (omitted).
As to the second of the alternate weekends, the Father and X should be free to engage with the Father’s broader community in (omitted). True it is that he will be exposed to the full burden of travel, but it will only be for one weekend in four. Given the relative infrequency of this, the benefit outweighs the disadvantages. Again, the Mother must deliver to, and collect from, (omitted).
What is the reality of the situation for the parents and the child, having regard to the above? It means that most months X will spend a weekend with his father in the (omitted) and (omitted), and a weekend with his father in (omitted). In reality X will have burdensome travel on one weekend only most months, as the travel between the (omitted) and (omitted) was not suggested to be burdensome. As for the Mother, on most months she will be making only three return trips to (omitted) from (omitted). It is a burden the Court believes she will adequately manage. As for the Father, he will continue to carry the greatest burden in terms of travel and cost, especially on the weekends when he is limited to (omitted)/(omitted). He will cope. The reality of the situation is an acceptable one for all concerned, especially for X.
There was an issue between the parents as to whether the Father’s time with X concludes on Boxing Day at 10:00am (as the Mother proposes) or 4:00pm (as the Father proposes) in alternate years. The Court will order that it conclude at 10:00am, particularly given that X will then need to return to (omitted) from (omitted), no doubt to continue celebrations with the Mother and her family.
There was an issue between the parties about Father’s Day and where changeovers are to take place. For reasons previously expressed, changeovers should be at (omitted). Indeed, unless expressly indicated to the contrary in these Orders, changeover should be at (omitted).
Orders in X’s best interests
Having regard to the reasons set out above, the issue now becomes to formulate the precise orders to be made. This is best achieved by reference to Schedule One, a document that sets out the orders made by consent, and those orders needing judicial determination.
Order 4.3.1 deals with the Father’s time with X during school term, from 1 July 2016. Consistent with paragraph 43 of these reasons, the alternate weekend time should begin at 5:00pm on Friday and conclude at 4:00pm on Sunday. Consistent with paragraphs 44 to 45 of these reasons, the first of the alternate weekends should commence in the (omitted) with X spending time with his father in the (omitted) on Friday night. For the remainder of this weekend, X’s time with his father must be either in the (omitted) or in (omitted). As to the second of the alternate weekends, consistent with paragraph 46 of the reasons, collection and return is from (omitted), but the father is free to spend time with X wherever he lives, including in (omitted).
Order 5.2 deals with time over Christmas. Consistent with paragraph 48 of these reasons, X’s time with his father concludes at 10:00am on Boxing Day.
Orders 5.3.2 and 9 deal with where changeover should take place when not previously specified. Consistent with paragraph 41 of these reasons, changeover should be at (omitted) as the order proposes.
The remainder of the orders in Schedule One are by consent. The Court notes that when the Orders in Schedule One are transposed onto the template the Court uses for its Orders, the numbering will change so that, for example, Order 4.3.1 becomes 4(c)(i). Despite this, the substance remains the same.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 25 September 2014
Schedule One
Orders for Parental Responsibility
That the Mother and the Father shall have the equal shared parental responsibility for the child, X born (omitted) 2010 ("the child").
That each parent shall have the sole responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is living with or spending time with them respectively.
Orders for Living with Each Parent
That the child shall live with the Mother at all times that he is not otherwise spending time with the Father in accordance with these Orders.
That the child spend time with the Father at such times as agreed between the parties and as follows:
4.1From the date of these Orders and in a four weekly cycle with Week 1 to commence on the first Saturday following the making of these Orders;
4.1.1Week 1 – From 10.00am to 4.00pm on Saturday with changeover to take place at the residence of the Paternal Grandmother
4.1.2Week 2 – From 12 noon to 4.00pm on Sunday with changeover to take place at the Mother's residence.
4.1.3Week 4 –
(a)From 10.00am to 4.00pm on Sunday with changeover to take place at the Mother's residence.
(b)From after playgroup to 4.00pm on Monday with the Father to collect the child from playgroup at the commencement of such time and return the child to the Mother's residence at the conclusion of such time.
4.1.4For the sake of these Orders it is noted that the Paternal Grandmother resides in (omitted) while the Mother resides in (omitted) and the Father resides in (omitted).
4.1.5In the event that the Paternal Grandmother is unable or unwilling to facilitate contact changeover at her residence in (omitted) then changeover on such occasions shall occur at (omitted).
4.1.6The Mother shall be permitted to suspend the Father's time pursuant to Order 4.1.2 on one occasion provided she gives the Father at least 28 days' notice in writing (including text message). And if the Mother is taking the child on a holiday, she is, at the time of notifying the Father of the suspension of time, to provide to the Father with an itinerary including details of accommodation.
4.2From 1 July 2015 in a four weekly cycle with commencement to coincide with the same weekly cycle as exists pursuant to Order 4.1:
4.2.1Week 1 - From 10.00am Saturday to 4.00pm Sunday with changeover to take place at the residence of the Paternal Grandmother
4.2.2Week 3 –
(a)From 10.00am to 4.00pm on Sunday with changeover to take place at the Mother's residence.
(b)Until the child is no longer attending playgroup, from after playgroup to 4.00pm on Monday with the Father to collect the child from playgroup at the commencement of such time and return the child to the Mother's residence at the conclusion of such time.
4.3From 1 July 2016 and thereafter (subject to Order 6);
4.3.1During school term, each alternate weekend (Judicial Decision Required)
4.3.2During school holiday periods
(a)Until the child commences Year 1 at school (being Term 1, 2017:
(i)For a period of three weeks total per year;
(ii)Not more than one week at a time (with at least one week in between each period);
The Father shall give the Mother at least 28 days written notice of his intention to exercise time pursuant to this Order and the dates that he will be spending time with the child.
(b)From the time the child commences Year 1 at school (being Term 1, 2017:
(i)For one half of the school holiday periods at the ends of Term 1, Term 2 and Term 3, at times to be agreed, and failing agreement, for the first week in even years and the second week in odd years;
(ii)For one half of the school holiday period at the end of Term 4 to occur by way of an alternating week about basis, at times to be agreed, and failing agreement, to commencement the first week in even numbered years and the second week in odd numbered years. And if either parent wishes to take X on a 2-week holiday in the holiday period at the end of Term 4, they can do so by providing the other parent with 28 days’ notice in writing, along with a full itinerary, and that such time is ‘swapped’ and is not in addition to the time that parent has with X.
Orders for Spending Time with Each Parent Upon Significant Occasions
That the child spend time with the Father (when not already spending time with the Father pursuant to Order 4) as follows:
5.1Upon such occasions as the parents agree from time to time;
5.2From 2016 and each alternate year thereafter – from 10.00am Christmas Eve to (Judicial Decision required) Boxing Day and in 2014 on Christmas Day for a period of two hours as agreed between the parents.
5.3Father's Day –
5.3.1In 2014 - The child shall spend time with the Father on the weekend that includes Father's Day from 10.00am to 4.00pm Sunday with changeover to take place at the Mother's residence.
5.3.2Thereafter, from 10.00am Saturday to 4.00pm Sunday with changeover to take place at (Judicial Decision Required).
5.4By Skype (once the Mother has obtained all necessary programs, connections and machines to enable this to occur and the child attains the age of four years)
5.4.1Each Christmas Day, child's birthday, Father's birthday, at times as agreed between the parties.
5.5On the child’s birthday on (omitted) 2014 from 11am to 2pm with the Father to collect X from, and return him to, the home of the Mother
5.6Notation: The parties shall give consideration to making X available to attend at major celebrations in each other's extended families such as weddings and milestone birthdays and anniversaries.
That the child spend time with the Mother (when not already living with the Mother pursuant to Order 3) as follows:
6.1Upon such occasions as the parents agree from time to time;
6.2From 2015 and each alternate year thereafter - 10.00am Christmas Eve to 10.00am Boxing Day
6.3Mother's Day – Order 4 shall be suspended on the weekend that includes Mother's Day
6.4By telephone – at any time that the child expresses a desire to do so at which time the Father shall facilitate the child's wish by contacting the Mother for the child if required.
That each parent be entitled to attend all events involving the child including, but not limited to:-
7.1sporting functions;
7.2extra-curricular activities that allow for parental attendance or participation;
7.3school functions and events that allow for parental attendance or participation;
AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child's transportation to and from the event unless otherwise agreed on between the parents.
That neither party will enrol the child to participate in weekend sport, or other regular weekend extra-curricular activities, without the express written approval of the other parent.
That for the purposes of facilitating the changeover of the child (where not already referred to in these Orders) such arrangements will be as agreed between the parents but failing agreement the parties shall meet and the residence of the paternal grandmother in (omitted) (or (omitted)) (Judicial Decision Required).
That each parent shall permit the child to convey between their respective residences any particular toy that the child wishes to take with him (within practical reason) and shall use their best endeavours to ensure that such toy or toys are not left behind by the child when travelling to the other parents' residence unless the child has expressed such a wish.
Orders for Parental Communication
That each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:-
11.1any medical problems or illness suffered by the child whilst in the care of either parent;
11.2any medication that has been prescribed for the child;
11.3any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
11.4any significant social, school or religious functions which the child is to attend;
11.5their residential address and telephone contact number;
11.6any other matter relevant to the welfare of the child.
Each of the parents are to be permitted to liaise directly with the child’s school, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress and that both parents are to authorise the school, sporting bodies and/or other organisations to facilitate this.
Both parents are hereby authorised to receive any information from the child’s school including but not limited to: copies of the child’s school reports as they fall due along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the child to ensure that the school forwards these items to both parents.
Orders Restraining the Parents
That each parent is restrained from physically disciplining or shouting at the child, or allowing any other person from physically disciplining or shouting at the child.
That each parent refrain from making critical or derogatory remarks about the other parent or members of the other parent's family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent or members of other parent's family in the presence or within hearing of the child.
That for the purpose of communicating information between the parents the Father and Mother shall communicate by Communication book, sms text message or email and shall be restrained from using the child as a messenger.
Orders for Dispute Resolution
That in the event the parents cannot reach a joint decision about:-
17.1any major long-term issue involving the child; or
17.2the interpretation of these Orders; or
17.3the implementation of these Orders; or
17.4the enforcement of these Orders;
each of the parents will do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act.
That before an application is made to a Court for a variation of these Orders, to take account of the change in needs or circumstances of the child or of the parties, each of the parents is to participate in family dispute resolution with a person authorised under the Family Law Act.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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