Time and Bailey

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIME & BAILEY

[2014] FCCA 2094

Catchwords:
FAMILY LAW – Parenting – allocation of parental responsibility – capacity of father to provide for the physical needs of the child – extent of the mother’s time with the child during school terms – conflict over provision of electronic devices to child – assessment of risk of child not being returned from international travel – factors for determining appropriate level of security for international travel – extension of existing Watch List order.

Legislation:

Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 65D; 65DAC

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
McCall & Clark (2009) FLC 93-405

Applicant:

MS TIME

Respondent:

MR BAILEY

File Number:

HBC 967 of 2008

Judgment of:

Judge Baker

Hearing dates:

14 and 15 July 2014

Date of Last Submission:

15 July 2014

Delivered at:

Hobart

Delivered on:

10 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Lethbridge SC

Solicitors for the Applicant:

KDB Holmes Solicitors

Counsel for the Respondent:

Mr Dixon SC

Solicitors for the Respondent:

Abetz Curtis Lawyers

ORDERS

All previous parenting orders in relation to the child X born (omitted) 2005 (“the child”) with the exception of order 24 of the orders dated 9 June 2011, be discharged.
The parties have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with the Mother for two continuous periods of 9 days in each school term, those periods to be as follows:
(a)After the conclusion of school on the Friday which is the19^th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father; and
(b)From after school on the Friday which is the 47^th day of the school term or thereabouts when the Mother will collect the child from school until the following Sunday week (9 nights later) at 6.00pm when the Mother will return the child to the Father.
The child spend the second half of the 2014 September holiday period with the Mother and the first half with the Father.
The child spend the first half of the December/January 2014 school holiday period with the Mother and the second half with the Father and alternating yearly thereafter.
From 2015 the child spend the second half of each Term 1 and 2 school holiday period with the Mother and the first half with the Father.
The child spend each alternate September school holidays with the Mother commencing in 2015 and each alternate year with the father commencing in 2016.
In the years that the child is due to spend the second half of the December/January school holidays with the Mother this time shall commence three days early so that the child is returned to Tasmania a minimum of three days before school recommences.
For the purpose of facilitating the child’s travel to spend time with the Mother during school holiday periods:
(a)The Father deliver the child to the Mother no later than the time the child is to spend with the mother in each period;
(b)The Mother be solely responsible for the costs associated with the child travelling to Sydney or such other mainland capital city as nominated by her;
(c)The Father be responsible for the costs associated with the child returning to Hobart from any capital city on the eastern seaboard of Australia at the conclusion of his time with the Mother;
(d)The Mother and Father each be solely responsible for their own costs of travelling with the child; and
(e)The child must be booked on flights leaving Tasmania before 11am and booked on flights for return to Tasmania leaving after noon on the day of the child’s departure.
The child spend time with the Mother at other times as the parties may agree in writing.
The Mother be permitted to remove the child from Australia on one occasion per annum when in her care, to travel with him to the (country omitted) for a period of not more than 21 days including travel time, such trip to occur during the school vacation period in each school year unless otherwise agreed in writing by the parties, and in relation to those trips, the Mother must on each occasion:
(a)Provide to the Father a photocopy of return airline tickets in the child’s name, X, no later than 30 days prior to the child’s departure date;
(b)An itinerary indicating the places at which the child will be staying when in the (country omitted) and the address and, where possible, landline telephone number of each place;
(c)Provide to the Father a mobile telephone number on which the child may be contacted throughout the period he is to spend overseas with the Mother; and
(d)At least 14 days in advance pay to the Father’s solicitors $20,000.00 security to be held by those solicitors in a controlled monies account or if the Father does not have a solicitor into a controlled monies account held by the Mother’s solicitors, to be repaid to the Mother if the child is returned to Australia in accordance with these orders, or if the child is not so returned, to be applied in payment of the Father’s expenses incurred in seeking the child’s return to Australia, including legal costs and disbursements in Australia and (country omitted) and travel and accommodation costs incurred in travelling to seek the child’s return.
In order to facilitate the child’s travel overseas, the Father must provide the mother with the child’s Australian Passport within a time to enable the mother to book airline tickets for the child, and otherwise no later than 45 days prior to the child’s departure date.
AND IT IS NOTED THAT the Mother will return the child’s passport to the Father at the conclusion of each period of overseas travel.
The Father be permitted to remove the child from Australia for a holiday for a period of not more than 21 days including travel time during the school holiday vacation period when he is in his care provided he comply with the following conditions:
(a)Provide the Mother with a photocopy of departure and return airline tickets in the child’s name, X, no later than 30 days prior to the child’s departure;
(b)Provide to the Mother an itinerary indicating the places at which the child will be staying when overseas and the address and landline telephone number of each place; and
(c)Provide to the Mother a mobile telephone number on which the child may be contacted throughout the period he is to spend overseas with the Father.
The child remain on the Airport Watch List until 20 January 2019 at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
For the purposes of Orders 12 and 14 herein, the Father cause the name of the child X to be removed from the Airport Watch List at all points of international arrivals and departures in Australia for the period required to facilitate the parties’ travel with the child in accordance with those Orders.
For the purposes of these orders, school holidays are defined as commencing on the day after school finishes and concluding on the day before school starts in accordance with the Term dates for Tasmanian Government School Students prepared by the Department of Education, Tasmania.
The child communicate with the Mother and the Father at times to be agreed in writing and failing agreement at the following times:
(a)If the child is not spending time with the Mother:
(i)Communication by web cam or similar visual technology each Tuesday between 7.40am and 8.00am;
(ii)Communication by telephone each Thursday between 7.40am and 8.00am or by Skype phone if the Mother is travelling outside of Australia;
(iii)Communication by telephone each Sunday between 8.00am and 8.20am or by Skype phone if the Mother is travelling outside of Australia;
(iv)Communication by web cam or similar visual technology or telephone between 9.00am and 9.20am on Christmas Day, the child’s birthday, the Mother’s birthday and Mother’s Day; and
(v)Such additional and/or alternate times as agreed, having regard to the child commencing school.
(b)If the child is not spending time with the Father:
(i)Communication by web cam or similar visual technology each Tuesday between 7.40am and 8.00am;
(ii)Communication by telephone each Thursday between 7.40am and 8.00am;
(iii)Communication by telephone each Sunday between 9.00am and 9.20am;
(iv)Communication by web cam or similar visual technology or telephone between 9.00am and 9.20am on Christmas Day, the child’s birthday, the Father’s birthday and Father’s Day.
The parties do all things reasonable to promote communication as set out in Order 18 herein including but not limited to:
(a)Ensuring that the child is available to communicate at the designated days and times; maintaining an internet connection of such speed so as to ensure that the webcam/Skype communication is working at optimum level; and
(b)Encouraging the child to participate in the communication and ensuring there are no disruptions or distractions during the communication and or interference by the other parent.
The parties correspond by email and, for the purposes of this order, inform each other and keep each other informed of a current, working email address at all times, excepting:
(a)In the case of emergency when either party can contact the other by mobile phone; and
(b)At the times the child is collected from the residence of either parent.
At all times the parties ensure each other has:
(a)A telephone contact number available for the other to speak with the child while the child is in the care of the other party; and
(b)Each party shall keep the other informed of any changes throughout the duration of these orders.
Each party inform the other of the residential address from time to time where the child will be staying.
The Mother be restrained from providing the child with a Wi-Fi enabled mobile telephone and/or iPad with Facetime capability while the child is in the Father’s care.
Neither party is to denigrate the other party or members of the other party’s family to the child or in the presence or hearing of the child, or at all.
Both parties must use their best endeavours to ensure that no person denigrates the other party or members of the other party’s family to the child in the presence or hearing of the child, or at all.
Any minor changes to the arrangements anticipated by the Orders be made not less than 24 hours in advance, by agreement between the parties.
Both Parties:
(a)Attend and complete, as soon as practicable, a Post Separation Parenting Program;
(b)Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)Pay and otherwise be responsible for all costs associated with the program;
(d)Provide evidence to the other party’s solicitor that they have enrolled in the program; and
(e)Provide evidence to the other party’s solicitor that they have successfully completed the program.

THE COURT NOTES THAT:

A.With respect to the time to be spent by the child with the Mother, that time during school term will be spent in Tasmania.
B.There are no obligations on either parent to ensure that communication between the other parent and the child lasts for a minimum period of time.
C.The Mother and Father will ensure that telephone communication with the child does not occur on speaker phone, and that the child is provided with privacy in which to speak to the other parent when communicating in accordance with Order 18 herein.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Time & Bailey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 967 of 2008

MS TIME

Applicant

And

MR BAILEY

Respondent

REASONS FOR JUDGMENT

Introduction

This is the application for parenting orders made by the mother of X born (omitted) 2005.
The parties commenced cohabitation in Tasmania in 2003. They separated in 2007. X has lived with the father in Tasmania since 2008 and spent regular time with the mother in Sydney and Hobart.
The mother is 50 years of age and was born in (country omitted) in (country omitted). She commenced to permanently reside in Australia in about 1994. In 1995 she obtained permanent Australian residency. In July 2000 she became an Australian citizen and holds dual (country omitted) citizenship. She is employed as a (occupation omitted) and lives in Sydney. She is an undischarged bankrupt.
The respondent father is 41 years old and was born in (country omitted). He commenced a new relationship in 2008 and has subsequently married his partner. He lives with her and X in (omitted) (about 40 minutes from Hobart). They have a business at the (omitted).
X attends (omitted) Primary School and is in Grade 3. He spends regular weekend and holiday time with his mother.

Background

In December 2006 the mother relocated to Sydney with X. The father remained working in Tasmania and commuted to Sydney on a regular basis.
On 21 June 2007 the mother left Australia with X to travel to (country omitted) without notice to the father. X was aged two years and five months at the time. The father had no contact with him until October 2008 when he was three years and nine months old.
On 10 August 2008 orders were made in (country omitted) pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) for the return of X to Australia. He was returned to Australia on 17 October 2008. Since that time he has lived in Hobart with the father.
An order for costs was made against the mother in favour of the father, who lodged a proof of debt with the mother’s trustee in bankruptcy for approximately $42,000, none of which has been paid to him.
On 9 December 2008 interim orders were made in the Family Court of Australia for X to live with the father and spend time with the mother. On 28 October 2009 final orders were made, which provided that X live with the father and spend time with the mother. These orders included an Airport Watch List order in respect of X until 20 January 2015.
During 2009 X was in a shared care arrangement, living with the father during weekdays and with the mother on weekends. The orders made in the Family Court provided for X to live with the father and spend time with the mother each alternate weekend, alternating those weekends between time in Sydney from Friday to Sunday, and time in Hobart from Friday until Monday.
The father filed further proceedings in 2011, which were finalised by consent orders on 9 June 2011. The orders extended the blocks of time that X was to spend with the mother. They provided for weekend time every second or third week from Thursday until Sunday, with one weekend in each school term to occur in Sydney, for which X would fly to Sydney on Thursday afternoon and to return to Hobart on Sunday evening.
On 13 November 2013 after an interim hearing, it was ordered that the mother be permitted to take X for a holiday to (country omitted) upon payment by her of a security bond of $50,000.
The mother took X to (country omitted) in January 2014 pursuant to the orders and after payment of the security bond.

Proposals

The mother

The mother proposed that the order made by consent on 9 June 2011 that the parents have equal shared parental responsibility for the child continue. She sought that X spend time with her for two continuous periods of 10 days during each school term, the first period commencing at the conclusion of school on the 19^th day of the term until the morning of the 29^th day, and the second period commencing at the conclusion of school on the 47^th day of term until the morning of the 57^th day. This term time is to take place in Hobart.
She sought holiday time with X as follows:
a)the second half of each school holiday period at the end of terms one and two;
b)each school holiday at the end of term three (September/October); and
c)the first half of the Christmas school holidays in 2014, and then each alternate year.
She sought that she be permitted to remove X from Australia to travel to the (county omitted) for a period of not more than 21 days each September/October holidays. This trip would be conditional on her providing the father with a photocopy of return airline tickets, itinerary and a mobile telephone number.
She proposed that, unless otherwise agreed in writing, X must not be enrolled in or engaged by either party in more than one sporting activity or extracurricular activity during term time where that extra activity would occur during the period he is to spend time with her in Tasmania. During the hearing the mother’s Counsel indicated that she would not pursue an order limiting X to one sport, if she were to succeed in obtaining her proposed block periods during term time.
She also sought Web Cam, telephone and email communication.

The father

The father proposed that he have sole parental responsibility for major long term issues for X, including but not limited to the following:
a)his education;
b)his recreational and social interests; and
c)his health
He proposed that he would, prior to making the sole ultimate decision about any issue:
a)use his best endeavours to advise the mother in writing of the decision intended to be made;
b)seek the mother’s written response in relation to the decision;
c)consider, by reference to the best interests of the child, any response prior to making any such decision; and
d)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
In respect of X’s time with the mother, he proposed that X spend with her each third weekend; one period of seven consecutive days each school term; and one half of each school holiday period.
He also proposed various other orders as set out in his Case Outline, including telephone, Skype and Web Cam communication.
In respect of international travel, he proposed that the mother have one international trip with X each alternate year to any country that is a signatory to the Hague Convention, and that, unless otherwise agreed, the trip take place during the summer school holiday period of not more than three weeks. The trip would be conditional on the mother providing the sum of $50,000 to his solicitors; copies of the return airline tickets; and an itinerary and mobile telephone number. He also sought that the existing Watch List order be extended to 2021.
He proposed that he have one international trip with X each alternate year on the same terms, including communication by Web Cam and Skype communication.

Issues

The main issues were:
a)the allocation of parental responsibility;
b)the extent of the mother’s time with X during school terms; and
c)X’ international travel, specifically whether it should take place annually or bi-annually, and whether it should take place either in the September or Christmas school holidays. The issue of security for the international travel was also in dispute.

Evidence

The mother relied upon:
a)her affidavits filed 1 August and 30 October 2013, 7 July 2014, and her financial statement filed 1 August 2013;
b)the affidavits of Mr R filed 29 October 2013 and 23 December 2013;
c)the affidavits of Ms C filed 31 October 2013 and 9 July 2014;
d)the affidavits of the Ms K filed 31 October 2013 and 9 July 2014;
e)the affidavit of Dr J filed 9 July 2014; and
f)the Family Report.

Dr J did not attend for cross-examination. All other witnesses were required and attended for cross-examination, except for Ms K who was not required.
The father relied upon:
a)his affidavit filed the 7 July 2014;
b)the affidavit of Ms J (nee (omitted), the father’s present wife) filed 7 July 2014; and
c)the affidavit of Ms M (the paternal grandmother) filed 7 July 2014.
The father and Ms M were cross-examined. Ms M was not required for cross-examination.

The Family Report

The Family Consultant, Ms I, interviewed the parents, Ms M (the father’s present wife), and X.
Ms I wrote that each parent wants the best possible long-term outcome for X. They are aware that his welfare would be improved by a lessening of the tensions between them. However, neither parent believes that this is achievable because of the lack of trust between them, due to the history of their parenting and litigation since separation.
Ms I that said that Ms M described X as being “secretive” about the time with his mother and thought that he has “two very different lives with his parents”.
X impressed to be a reserved and cautious child. He was not readily forthcoming with any information. Ms I said that this appeared partly to be due to his extreme caution to not favour either parent in any of his replies, and also his apparent caution to not say anything negative or likely to cause any problems for anyone. She said that it did not appear that X has been overly influenced by either parent or has become embroiled in their dispute. She said it appears that he has learnt to keep his own counsel, and to be well-behaved and pleasant in both households. She said it would appear that X lives a childhood where his parenting is “deeply divided” rather than “richly shared”.
Ms I recommended that X spend block time with the mother as soon as she has appropriate accommodation in Hobart, occurring from Saturday to Sunday (an eight day block) at first, and that this could be reviewed once it becomes more routine and established.
She recommended that X travel to Sydney for his time with his mother primarily during the school holidays, and that the two week block of holiday time in September alternate annually between the parents.
She recommended that the mother exercise her parental judgement as to when and how often she travels to (country omitted) with X, as long as it occurs only within the agreed time that he is with her. Finally, she recommended that the parents consider attending the ‘parenting after separation’ course, in an effort to improve their communication and to use the services available to further negotiate any parenting matters that arise.
Ms I was cross-examined by Counsel for both parties. She explained her recommendation for X’s time with the mother in an eight day block as a compromise position of the parties’ proposals, and to enable X and the father to adjust to the time.
She indicated that X’s concept of time is developmentally limited and she was confident that he would cope with being away from the father for longer periods during school holidays. She said that he could manage the travel to (country omitted).
Ms I said that she recommended all of the September school holidays for each parent on an alternating basis, as it is usual for people to want to travel from Tasmania at that time for a holiday to a warmer climate.
Ms I is a very experienced family consultant. She did not change her views during her oral evidence. I place weight on her evidence.

Relevant Law

In proceedings for a parenting order, the Court may make such parenting order as it thinks proper subject to Part VII, Div 5, including orders which discharge, vary or suspend previous parenting orders.[1]
[1] Family Law Act, ss 65D(1), 65D(2).
Section 60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(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).
Section 60CA of the Act provides that when a Court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.
In determining the child’s best interests, the Court is guided by s.60CC of the Act.
I turn to consider the best interest considerations for X.

Primary considerations

Section 60CC(2)(a)

Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
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
The preferred approach to this is to consider the prospective benefit to the child of having a meaningful relationship with his parents.[2]
[2] McCall & Clark (2009) FLC 93-405.
I consider it is of benefit for X to have a meaningful relationship with both his parents. They have both been involved in his life, and he has a close and loving relationship with each of them.

Section 60CC(2)(b)

the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

This sub-paragraph is not relevant.

Section 60CC(3)(a)

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Ms I was of the view that X had not been overly influenced by either parent, nor had become embroiled in the parental dispute.
Ms I reported that X said that he would like his mother to come to Tasmania for 10 day blocks, as he hates flying up and down all the time. However he said that he still wants to spend time in Sydney as well. He said he misses his Dad when he is away from him for a long period of time. He spoke of wanting the holidays to be “a bit shorter …. 4 days” but then he asked: “Is a week seven days? That’ll be good, that’s the max”.
The father told Ms I that X has said he does not want longer blocks of time, but he also suggested that X may not understand what is being proposed.
In respect of overseas travel, X said he would prefer to go for “a week” next time. When asked about going to (country omitted) every September holidays, he said “the first year, yeah, the next year, no, the next year, yeah”.
X would not be drawn on his thoughts about what Ms I might tell his parents. He stated that, to make him feel happy his parents, could “stop arguing”. He regards both parents as being participants in their arguing.
Ms I noted that X is still a young child and has limited understanding about time, other than when it is too long, such as a long plane journey or a long time in (country omitted). He did not appear to hold strong views.
During cross examination, Ms I indicated that limited weight should be given to X’s views. I agree with her opinion, given his age and his limited understanding about time.

Section 60CC(3)(b)

the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

X has a close and loving relationship with both parents. He has close relationships with the father’s wife and his paternal grandmother.
X has a good relationship with his maternal grandmother, with whom he speaks regularly via Skype. He also has a good relationship with the mother’s siblings and cousins, who live in (country omitted).

Section 60CC(3)(c)

the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

This sub-paragraph is not relevant.

Section 60CC(3)(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;

The father is primarily responsible for maintaining X. The mother does not pay child support, although she has paid his dental costs and other expenses.

Section 60CC(3)(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;

Ms I was of the view that X will cope with time away from the father, whether it be term time or holiday time.
I am of the view that there will be little effect on X to any changes to his circumstances in Australia.
If the mother travels with X to (country omitted) and fails to return him, and if it takes time to arrange for him to return to Australia, is likely he will miss the father and suffer emotional harm by not having frequent time with him.

Section 60CC(3)(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;

There are no practical difficulties in respect of the mother’s time with X in Australia. The mother will be travelling to Tasmania during term time to spend time with him. X will travel to Sydney to spend time with the mother during school holidays.

Section 60CC(3)(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;

The mother raised concerns about the father’s capacity to provide for X’s dental needs.
The father said that X does not have issues with his teeth and dental hygiene, as claimed by the mother. He said that X has had regular six and twelve monthly dental checks since he was in his primary care in 2009.
However, it is apparent that X has, over the last two years, had significant issues with his teeth, requiring one tooth to be extracted and numerous fillings. The work has been carried out at a number of dentists both in Tasmania and in Sydney.
In January 2013, following her observation that X had a hole in a tooth, the mother sought a report from (omitted) Dental Care in Sydney. The report notes that X required extraction of one tooth and restoration on another, and that other teeth would also require work.[3] The problem tooth was extracted by (omitted) Dental Surgery on 31 January when X was back with the father in Tasmania. The mother had made a provisional appointment for 14 January, however this was time when X was to be with the father.
[3] Exhibit M6.
The (omitted) report noted that X’s “current oral hygiene … was poor, and appropriate parental supervision as well as diet is necessary to prevent further carious lesions”.
The mother took X to (omitted) Dental Centre in July 2013, following X reporting a cracked tooth while he was with her in Sydney. The Centre confirmed decay on one tooth (which was temporarily restored at that visit) and possible decay on a further eight teeth. The Centre noted that, during the visit, “X became very anxious and it was difficult to identify if he was feeling pain”. The report also noted that it was “important that X starts treatment as soon as possible to save his teeth”.[4]
[4] Affidavit of the father (filed 7 July 2014), Annexure C.
The father agreed that it was a concern that the report highlighted potential problems with ten of X’s teeth. He said that the dental problems noted in the report could have been as a result of time spent with both parents, however agreed that X had primarily lived with him since 2009.
The father attached to his affidavit a report from Dr K of (omitted) Dental Surgery dated 30 August 2013[5] that concluded that “X is keeping his mouth well and showed very good signs of healthy gums and good dental hygiene”. This report was confirmed by Dr K to the mother several weeks later. However since that date, X has required a significant number of procedures to rectify his previously identified decay and associated dental issues, including a number of fillings and dental sealing.
[5] Affidavit of the father (filed 7 July 2014), Annexure B.
The father said that the mother “continues to unilaterally make decisions about X’s care, welfare and development without [his] knowledge or consent”, and is “constantly subjecting X to dental, medical and psychological examination without [his] knowledge”. He said that she does this to “demonstrate that [he] does not provide adequate care for X”. He gave four examples of appointments for dental procedures attended by X without his knowledge. However, he had also questioned the mother’s judgment in not taking X to a dentist in Sydney while he was in her care in June 2013.
The father attributed the conflict about the dental work to a lack of communication between the parties. An example of this is the x-ray of X’s teeth at (omitted) Hospital in August 2013. The father agreed that he had no problem with this being undertaken, particularly as it stemmed from an appointment that he had organised. However, he disliked being advised of it after it had occurred.
The father said that all the required dental repairs set out in the (omitted) Health Fund report have now been undertaken. He agreed that the treatments had all occurred while X was in the mother’s care. He agreed that she had paid for the treatments.
I am of the view that the mother behaved as a responsible parent in obtaining dental treatment for X. I do not accept she has done this for the purpose of demonstrating that the father does not provide adequate care for X, as asserted by the father. She has done this to ensure X was treated.
The father’s main concern was that he had not been consulted by the mother before appointments. He did not complain that the treatment was unnecessary.
The father also complained about the mother making an appointment with an educational psychologist without consulting him before making the appointment. She acted on advice from a teacher in late 2013, some months before the appointment was made in March 2014. The advice was to take X to an educational psychologist. This was because he had been emotional in class and would get upset if he could not answer questions.
The father did not agree to the appointment, as X appeared to be settled at school and he wanted to wait to see how he progressed. The appointment was cancelled when the father did not give his consent.
I consider that neither parent acted unreasonably about this issue. The mother was not unreasonable acting upon advice. The father was not unreasonable in wanting to see if the appointment was still necessary. This is another example of unnecessary conflict.
The mother has agreed to an order that except in the case of an emergency, the parents ensure that X’s medical consultations take place at the (omitted) Medical Centre and his dental consultations take place at the (omitted) Dental Surgery. This agreement should limit further conflict about the issues of dental and medical health.
In respect of the mother’s capacity to provide accommodation for X in Hobart, she is looking for a permanent home near (omitted) to rent to spend block time with X. She has had four trips to Hobart this calendar year and has stayed in bed and breakfast accommodation when spending time with X. She is currently staying at a home in (omitted), which is a temporary arrangement.

Section 60CC(3)(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

X has one parent who has an (country omitted) heritage and her family live in (country omitted). X is of an age that he is likely to benefit from travelling to (country omitted) to spend time with extended family. X has a right to enjoy and experience the country of his mother’s birth and spend time with her family.

Section 60CC(3)(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;

This sub-paragraph is not relevant.

Section 60CC(3)(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The mother did not demonstrate a responsible attitude to parenthood when she removed X from Australia without notice to the father in 2007 and prevented him from spending time with X for a period of 16 months.
The father did not demonstrate a responsible attitude to parenting when he did not facilitate X’s time with the mother on several occasions.
In respect of Mother’s Day 2013, he was asked about the mother’s request for time with X. He agreed that he made time conditional upon her agreeing to X attending his football match and upon her agreeing for X not to travel to Sydney during school term. The father agreed that travel to Sydney was an ongoing issue and that possibly this would be an unacceptable proposition for the mother. After first stating that he did not recall, he agreed that the mother did not spend time with X on that day.
The father agreed that the mother wrote to his solicitors to request time with X between 26 and 29 June 2014. He agreed that, although the arrangements he had made for X that weekend were between Friday and Sunday, he did not allow for X to spend time with the mother on the Thursday or Sunday. He agreed that he knew the mother was in Hobart, however he did not agree that he deliberately ensured that X did not see the mother before the interviews for the Family Report. This time was one month prior to the interviews.
Nevertheless, he did not give an explanation other than he had already made arrangements for that weekend. I consider that this did not justify him not agreeing for X to spend time with the mother, at the minimum on Thursday and/or Sunday.
I consider that both parties need to be more responsible in their attitude to parenting by reducing their conflict. X needs to be protected from their conflict. There have been no incidents of overt hostility in his presence, but Ms I said that he is highly aware of the personal tensions between them. She said that he manages this by being careful not to show any favouritism and avoids being embroiled with either parent. She said that X lives in a childhood where his parenting is “deeply divided” rather than “richly shared”.

As Ms I noted, it would allow X to best enjoy the remaining years of his childhood if his parents are able to share his parenting more readily between the two households.
To assist the parties with their parenting, I intend to order that they attend a post-separation parenting course.

Sections 60CC (3)(j) and (k)

(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;

This sub-paragraph is not relevant.

Section 60CC(3)(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;

The parties have a long history of being involved in litigation. X is aware of the conflict between the parents.
The orders made by consent in 2011 have resulted in conflict and tension between them. Order 7 provided:
The child shall spend time with the mother during the school term in Tasmania at times to be agreed in writing and failing agreement at the following times:
(a)Each alternate or third weekend from after school on Thursday until the following Sunday afternoon, no later than 6:15 pm; (my emphasis)
(b)These weekends are to be agreed to by both parties for the upcoming term by the last Friday in the previous school term;
Given the parties could not agree on the specific weekends for X’s time with the mother, tension and frustration resulted.
The mother said during cross-examination that there was ongoing conflict between the parties due to the uncertainty in the 2011 orders. There were difficulties in reaching agreement about whether X’s time with her occurred every second or third weekend. The mother said that her contravention applications related to these difficulties. She has filed four contravention applications and two appeals. There have been two defended final hearings in respect of X and several applications in a case.
The father agreed during cross-examination that his proposed Order 7(d) in his Outline of Case for X’s term time with the mother is a recipe for ongoing disputes between the parties.
It is in X’s best interests for orders to be made least likely to lead to the institution of further proceedings.

Section 60CC(3)(m)

any other fact or circumstance that the court thinks is relevant.

An example of unnecessary conflict between the parties, which involved X, was the provision by the mother of electronic devices to him. These included: an iPad; an iPhone; a MacBook computer; and an iPad Mini. The father disputed X’s need for the devices.
The iPad was bought by the mother in 2011, and was used by X to play games while in her care. The father agreed that the iPad accompanied X on his travel between the parties on two occasions, but otherwise that it remained in Sydney. The father conceded that, in 2013, he refused the mother’s offer that she post the iPad to X from Sydney. He believed it to be unnecessary for X to have the device with him in Hobart, as he also had an iPod Touch in Hobart, which he was given in Christmas 2011. He said the iPod Touch has similar facilities and programmes to that of the iPad and that an iPad was unnecessary for X on flights, due to the availability of in-flight entertainment. He said that X chooses to not take the iPod Touch with him to Sydney.
The mother provided an iPhone for X in July 2013, with the intent of making it easier for him to contact her and to have greater flexibility in his communication. The father agreed that the mother had offered to pay for the calls made on the phone, however said that he considered X to be too young to have his own phone. He said that, at the time, he had concerns about why X would need a phone, given he could use her phone and the various other means already available.
The father denied that his real concern was that X may have unsupervised communication with his mother. He said that he does not monitor X’s existing scheduled calls or other communication. He said that he was happy for X to speak to the mother outside of the scheduled times, however X would not need to utilise the iPhone while living with him.
The father said that, based upon his experience with his own iPhone, the phone would have limited reception at his house, and that X would have to make calls standing outside the house. He said that the other means of communication, including Skype and the landline, had been sufficient. He said he was concerned that the iPhone could create “a can of worms” for communication, given the problems with reception at his house.
I accept the father’s evidence that X communicates with the mother mostly in private and the father encourages this. I accept his evidence that he was not opposed to the iPhone because he loses control over the communication. He was concerned because X is young and has no need for it.
The mother provided the MacBook computer to X in January 2014. She said she did this as she had been advised that X’s school intended to commence an IT programme during 2014. The father said that he did not consider that X required the MacBook, as he has use of the father’s personal computer. He agreed that he handed the MacBook back to the mother outside (omitted) when collecting X in March 2014.
The father agreed that he had knowledge of the intended IT programme at the school, but that it had not yet commenced. He said the existing computer at his home would suffice for X’s use, and that the school has its own computers. Nevertheless, he agreed that the computer may be useful when the programme commences.
There is dispute as to the continuing existence of the iPad Mini, which was bought for X by the mother and the maternal grand-mother in February 2014. The father agreed that he had driven away from (omitted) when the mother had returned to her room to collect the device in March 2014. He said that he did not want to be held responsible for the devices. He denied that he refused to wait in order to deprive X.
The mother gave evidence that she subsequently placed the iPad Mini in X’s school-bag at his school. The father agreed that she had advised him of this action, however said that the iPad Mini has not been sighted since. He said that X has told him that he does not have it, and that it was not likely to be anywhere in his house. He suggested that the device may have been placed in the wrong school-bag by the mother. He agreed that he did not believe that the mother was lying about the placement of the iPad in X’s bag. He conceded that he should have advised the school and possibly the police that the iPad was missing.
Ms M said that she supported the father’s approach in refusing the use of the iPhone, iPad, and iPad Mini for X. She said that she does not know the whereabouts of the iPad Mini. She considered that it had not been returned by the mother to X’s school.
The issue about these devices unnecessarily involved X in the conflict. Both parties have talked to him about the whereabouts of the iPad Mini. The mother deposed that X has “said words to the effect that he does in fact have the iPad” and that the father has emailed her asking her to “stop accusing X of saying that he does have it”. The father said that X has told him that he does not have it and does not know where it is. He agreed that he would be concerned if X did in fact still have it, as this would mean that he was lying.
X is only nine years old. The mother knew the father was opposed to the provision of the devices to X, yet she persisted in attempting to provide them to him.
The maternal grandmother gave X the iPad Mini as a joint gift with her daughter. The maternal grandmother believes that communication with X should be at any time X wants, as occurs with her other grand-children. This no doubt would be the position if the parties were not separated and were not having ongoing conflict about X.
The current orders provide for regular weekly telephone, Skype and Web Cam communication between X and the mother, and also with the father when he is with the mother. X will be spending regular time with the mother during term time and school holidays.
As asserted by the mother, the parties need certainty with the proposed orders. This is not a matter where it is in the best interests of X for flexibility. I consider that this would likely lead to further allegations and counter-allegations by each party and possible litigation.
I consider that, in view of X’s age and the problems which could arise, it is not in X’s best interests to have an iPhone when in the father’s care.
In respect of the provision by the mother of another iPad with face-time capability for X to use whenever the mother and he wish to communicate, I consider that is not in X’s best interests for the same reason.
In respect of the MacBook computer, I consider that this should be available to X, as it will be useful for him at school.

Travel to (country omitted) with X

Relevant Law

The decision of Kuebler & Kuebler[6] refers to the considerations which should be given to an application which involves a parent taking a child out of the jurisdiction. These include:
[6] (1978) FLC 90-434.
(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c) The effect on the child of any deprivation of access;
(d) Any threats to the welfare of the child by the circumstances of the proposed environment;
(e) The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
The mother’s case is that her application is bona fides as it is solely for her to take X to see her family.
On 4 November 2013, I heard an Application in a Case for the mother to travel with X to (country omitted) in January 2014. I ordered that the mother be permitted to travel with X. Amongst other things, I ordered that that the mother pay to the father’s solicitors the sum of $50,000 security at least 14 days prior to travel. The application was heard on the papers without cross-examination. I found that a trip for X to (country omitted) to visit the mother’s family and his cousins was in his best interests.
The mother proposed that she travel to (country omitted) in September 2014, notwithstanding that she travelled with X in January 2014. She proposed that X spend each September school holiday period with her, so she can travel to (country omitted) with him each year for 21 days. She said this is the best time to ensure her family are available to spend time with X, and is the easiest time for X to see his three cousins. She opposed the order for a security bond.
The father opposed future travel to (country omitted) because he believes that X can spend time with his (country omitted) family when they visit Australia and he can Skype with his grandmother.
Some of the mother’s family members work in the airline industry, so the mother has the benefit of obtaining cheap international air travel. She said that, in the last two years, she has travelled without X to (country omitted) between seven and nine times. Her most recent trip in March 2014 cost only $92 in airfares, for which she paid herself.
The trips will be for a maximum of three weeks. X will not miss any substantial time with the father.
X has a right to enjoy and experience the country of his mother’s birth and to spend time with his relatives. Overseas travel is likely to widen his experience at his age.
I consider that future travel to (country omitted) for X to spend time with his extended family and to have the benefit of experiencing another culture is in his best interests. I consider that he should have an opportunity to travel to (country omitted) each year to spend time with his extended family. I am not persuaded that the trip should be limited to every second year, as proposed by the father.
In issue was whether or not I should be satisfied that the mother will return to Australia with X.
The mother has lived continuously in Australia since around 1994. She said that it is her present intention to live permanently in Australia.
She agreed that she travelled with X to (country omitted) without the father’s consent in 2007.
Since the return of X in 2008, he has lived with the father and spends time with the mother. The mother retained X a second time in July 2009 in Sydney. She could not recall that retention when asked about it.
The mother said that she accepts that she will be bound by an order to return X. As a consequence of past events and the effect that these have had upon the outcome of proceedings in Australia when X was returned in 2008, she said that she understands the consequences of any default by her.
However, the mother did not apologise to the father for her wrongful action to the father for retaining X in 2007. She said she retained him due to incorrect legal advice. She did not express remorse for X not spending time with the father for a long period of time. She has not paid any of the father’s legal costs incurred to get X back to Australia. There is still conflict and mistrust between the parties.
Weighing up all the considerations, I consider that there is a risk that the mother may not return, although I am not satisfied that it is a significant risk and I consider that it is manageable.
I need to consider whether the mother should provide security and if so, the proper level of security.
In the decision of Line & Line,[7] the Full Court of the Family Court outlined the principles to be considered in imposing security to ensure the return of a child held. The Full Court noted that the fixing of an appropriate level of security is always a delicate matter and one very much for the discretion of the trial judge. The Full Court held that in fixing an appropriate level of security for return of children, the trial judge should, in exercising the discretion, have regard to a number of relevant factors including:
[7] (1997) FLC 92-729.
(a)     The purpose of the security; to provide a sum to realistically entice the person removing the children to return and to adequately provision the party remaining in Australia to take action for the return of the children.
(b)     The degree of risk that the departing parent will not return.
(c) Whether the country of travel is a signatory to the Hague Convention on Child Abduction, and the likelihood of deviation to a non-convention country.
(d)     The financial circumstances of both parties, and any hardship to either party if the level of security was increased or decreased.
In assessing the degree of risk that the mother, once permitted to leave Australia, will despite assurances to the contrary choose not to return, the Full Court in Line & Line said the considerations are:
… the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).[8]
[8] Ibid, at 83,846.
Counsel for the mother submitted that it is not necessary for any security to be ordered. It was submitted that if security is required, the amount should be $10,000–$15,000, as this should be a sufficient amount for the father to be able to travel to (country omitted) to collect X. In the alternative, he submitted that security should be a mixture of cash together with mortgage security, as offered by Mr R.
Counsel for the father submitted that security in the sum of $50,000 should be given by the mother. It was submitted that she was able to raise this sum in January 2014 and should be able to do so again.
There is a long history of litigation between the parties and a low level of trust. The father opposed X travelling to (country omitted) in January 2014 because the mother took him there in 2007 without his permission and he had to expend a significant amount of money for his return.
He said in his July 2014 affidavit that he is afraid that if the mother no longer has to pay the security, that she will take X again for a long period of time and that “his greatest fear is that I wouldn’t be able to afford and or pursue his return again … based on her previous history I do not trust that she will do the right thing by X”.
(country omitted) is a signatory to the Hague Convention. There is no evidence that the mother intends to travel to any country other than (country omitted). There are mechanisms for X’s return, as has already occurred.
The mother agreed that she owns no property and has no savings in Australia. She does not own any property in (country omitted). She travels there in the course of her employment with (employer omitted). All her family live there.
In respect of her income, she agreed that she earns $33,748 per annum or $649 per week from her salary and pension entitlements. She lives in Sydney and pays rent of $495 per week. She said her employer pays some expenses, and some of her accommodation. She does not work full-time and the amount of work she does varies, as it depends on her travel schedule.
The mother indicated that, before she became an undischarged bankrupt, she earned $10,000–$12,000 per month as a (occupation omitted). She gave evidence that she will be released from bankruptcy in June 2015, and that she anticipates earning about $10,000 per month, should her proposals for her time with X be adopted.
She said that if her proposed orders are made, she will be able to work a lot more, up to three out of every four weeks. At the current time there are always arguments between the parties about whether she will spend alternate weekends in Tasmania with X. This disrupts her work availability.
During cross-examination, the mother was asked how she raised the sum of $50,000 in January 2014, when she indicated in her affidavit filed 23 December 2013 that she could not raise the funds. She said that she obtained a loan from a friend in (country omitted) and had asked for the loan in around December 2013. She did not ask Mr R for the funds.
She was asked whether she has approached either her friend in (country omitted) or Mr R for assistance with paying the $50,000 for future travel. She answered that she had not. She said that she could approach them, assuming they have the money and are willing to pay.
There was no evidence of the father’s financial circumstances, apart from having employment as (occupation omitted) of a business. His evidence was that his legal costs to obtain the return of X in 2008 were $42,000, for which he was responsible to pay when the mother did not pay the costs ordered.
Mr R, the (occupation omitted) of (omitted) Ltd and the employer of the mother, gave evidence. He is an (occupation omitted) of (omitted) Ltd. He said that (omitted) Ltd was formerly (omitted) Pty Ltd. (omitted) Ltd is a public unlisted company and raises money from investors.
In his affidavit filed 29 October 2013, Mr R was prepared to stand surety for the mother’s travel, as at that particular time he had share assets of sufficient value. He supported her application that she be permitted to take X to (country omitted) in January 2014 and was confident she would return X to Australia as required. He was prepared to offer to stand surety of up to $100,000 by an undertaking to the Court. He deposed that he had the capacity to comply with the surety offered, and gave an example that “(omitted) Ltd held an unencumbered share portfolio valued at $497,527”.

Subsequently in his affidavit filed 23 December 2013, he said that he was prepared to offer as security a registered share mortgage over shares in (omitted) Ltd with a market value of $50,000. During cross-examination, he said that (omitted) Ltd holds no shares in (omitted) Ltd. The shares are held by (omitted) Ltd, his private company. Its interest in (omitted) Ltd is 1.6 million shares worth approximately 9 cents per share at 30 June 2014.
During cross-examination, Mr R said that, if the Court orders that the mother pay $50,000 before departure to (country omitted), he would consider lending her the money, if it was available at the time.
During re-examination he explained his understanding of his proposed undertaking was that the funds would be required to be paid if the mother did not return to Australia. At this stage, he said that he is prepared to give a similar undertaking, noting that circumstances can change from time to time.

Conclusion

As I have said, I consider there is a risk of the mother not returning again, although it is not a significant risk. I consider the risk is manageable and is reduced if security is required to entice her return. The amount of security should be such as to enable the travel to occur and also to provide the father with funds to enable X’s return.
When I made the order for $50,000 security in November 2013, this was for the purpose of one trip. The mother wants to travel with X each year to (country omitted) and will need to arrange security on each occasion.
I consider that the father should have cash funds available to him to start immediate action. I am not persuaded that an undertaking from Mr R or a mortgage of shares will provide sufficient funds in the future. I consider that there is no certainty that Mr R will have funds or an interest in shares at the time of each trip. He indicated that circumstances can change.
I am not persuaded that the mother’s friend, who lent her $50,000 this year, will have such amount available to her each year in the future.
There was no evidence about the father’s financial circumstances. Taking into account the amount of his legal costs incurred in 2008, and the circumstances of the mother, I consider that the level of security should be $20,000. This will provide the father with some financial compensation in the event the mother fails to return.
I consider that this sum is achievable for the mother to raise and will not preclude her being able to travel with X. She expects her future income will be around $10,000–$12,000 per month. She has the capacity to borrow funds from Mr R or to seek funds again from her friend in (country omitted). This should provide sufficient funds for airfares to (country omitted) and return for the father and X, and provide funds towards his legal costs.
The father sought that the Watch List order be extended to 2021. The power to make this order is a wide one and is discretionary.
The orders I intend to make provide that the mother can take X to (country omitted) once per annum. I have determined that there is a risk associated with the mother not returning X from (country omitted), and the risk can be managed by the provision of security.
Section 65Y of the Act provides that if a parenting order is in force, a party to the proceedings must not take the child concerned from Australia unless there is written consent or a court order. The penalty for breaching this order is imprisonment for 3 years.
The effect of extending the Watch List order is to give comfort to the father, who is the primary carer of X. He is fearful and has no trust that the mother will do the right thing by X, given her past actions. If the order is made he will have the comfort of knowing that if the mother decides not to comply with this provision of the Act, she is more likely to fail. There is no disadvantage to the mother in extending the order. The order can be removed each time she travels with X pursuant to these orders.
On balance, I consider that the order should be continued until X is of an age when he can act independently to resist travel. I consider that 14 years of age is an appropriate age, so I will extend the order until 2019.

Parental responsibility

The presumption of equal shared parental responsibility applies in this matter, as there are no reasonable grounds to believe that a parent, or a person who lives with a parent, has engaged in abuse of the child, or has engaged in family violence.
The presumption of equal shared parental responsibility may be rebutted if there is evidence that it would not be in the best interests of X that the parents have equal shared parental responsibility for him.
If an order is made for the parents to shared parental responsibility, the parents are required to make a decision about a major long-term issue in relation to X jointly.[9] The parents are required to consult each other on the matter and make a genuine effort to come to a joint decision on it.[10]
[9] Family Law Act, s 65DAC(1).
[10] Family Law Act, s 65DAC(3).
The father’s position was that there is a lack of trust between the parties and they are unable to communicate. He said:
… the conflict between Ms Time and I arises as a result of general everyday parenting communication. The conflict and difficulty I have in receiving information from Ms Time about parenting matters, combined with the fact that Ms Time is subjecting X to an excessive amount of medical visits, is why I am now applying for sole parental responsibility … Ms Time continues to unilaterally make decisions about X’ care, welfare and development without my knowledge or consent. Ms Time is determined to expose X to multiple health care practitioners and this is not in X’s best interests. Ms Time is not sufficiently child focused to be able to share parental responsibility with me in the future …
I made findings about the dental and medical visits. I consider that the mother has been child focussed.
The parties have also already agreed for an order that the mother be permitted to enrol X at her own cost to ensure the availability of a place to Year 7 in 2018 at the (omitted) School and the (omitted) School.
Whilst there is mutual distrust between the parents, I consider that they are able to communicate by email. The father in his trial affidavit annexed numerous emails between the parties which indicate this.
The ability for the parties to agree was evidenced by the father’s wish for X to have one doctor and dentist in Tasmania, and the mother’s agreement to an order for the parents to use the same doctor and dentist.
This is not a matter which requires the exclusion of one parent from being involved in significant decisions relating to health and education. Both parents are loving and committed parents. They want to participate fully in X’s development and life.
I consider that it is in X’s best interests that an order for equal shared parental responsibility be made.

Spend time with and communicate with

Neither party sought equal time with X. I consider that such time is not in his best interests. He has been in the primary care of the father since October 2008 and has the stability of a primary home base. The parental alliance is not such that a shared care arrangement is in his best interests. Such time is not reasonably practicable due to the geographic distance between the parties’ residences.
It was not disputed that it is in X’s best interests to spend substantial and significant time with each parent. Such time, including weekend time, time during the week and holiday time, is reasonably practicable.
I consider that X should spend two periods of time during the school term in Tasmania with the mother. Such time should be between Friday after school until the following Sunday week at 6.00pm. This amounts to a nine day period. This will give X two weekends with the mother in each period and he will return to the father’s household on Sunday, so he can settle back with the father before school on Monday. I consider that the mother’s proposal for this time to occur on the 19^th day of the school term and the 47^th day of the school term gives an appropriate interval between the visits.
In respect of school holidays, the mother proposed that X spend time with her for the second half of the school holidays following term one and term two. She sought that X spend time with her for the whole of the September school holidays each year.
The father sought time with X during the second half of the holidays. He denied he did this to disrupt the mother’s program of time. He said that he did this for X’s routine and to have X home before he returns to school. The parties had agreed that in 2013/2014 X spend the first half of the Christmas holidays with the mother and the second half with the father, alternating yearly thereafter. The father said that the arrangement continued to exist on the basis that the parties could not otherwise agree to change it. He said that it was “routine” and that there was no other reason for X having the second half of the holidays with him.
The father agreed that the mother’s proposal for X to spend time with her during the second half of the holidays fits in with her term time proposals. It also avoids a long period of time when X does not see her, and it avoids a long period of time for X being away from the father. I consider that this proposal is in X’s best interests.
I agree with the Family Consultant that the September holidays should be alternated to give both parties the opportunity for travel outside Tasmania with X at that time.
The mother can travel with X to (country omitted) in September each alternate year and she can take him during the Christmas school holiday period each alternate year. All of her extended family may not be available at Christmas time because they are in the airline industry and there is no guarantee of holiday time. However, X will be able to spend time with them each alternate September and each alternate Christmas when available. The mother took him to (country omitted) in January 2014.
I am of the view that such travel should not exceed 21 days and should take place during school holidays, so X does not miss any school time.
As the September holidays are in several weeks giving little time to plan a holiday, and the mother has taken X to (country omitted) this year, I consider that the September holidays in 2014 should be shared between the parents and from 2015 X can spend the holiday period with the mother and in alternate years thereafter.
In the years that X is due to spend the second half of the December/January school holidays with the mother, I consider that this time should commence three days early so that he is returned to Tasmania a minimum of three days before school recommences.
In respect of telephone communication and Skype communication, the mother sought a change in time from the morning to evening. There was no evidence from the mother as to why the current times are not suitable or are not working. I am therefore not persuaded that the time should change to the time sought by the mother.
I consider that these arrangements for X will promote a meaningful relationship for him with each parent.

I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Judge Baker

Associate:

Date: 10 September 2014

[2014] FCCA 2094

10 September 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Jurisdiction