Tomkins and Faulkes
[2019] FCCA 381
•22 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOMKINS & FAULKES | [2019] FCCA 381 |
| Catchwords: FAMILY LAW – Parenting – re-mitted for re-hearing of final hearing – whether child should live with mother in Town B or father in Sydney – child commencing school in 2019 – where parties concede equal time arrangement will only be practicable if both parties reside in the same city. |
| Legislation: Family Law Act 1975 ss.60CA, 60CC(2), 60CC(3), 61DA, 64B |
| Cases cited: In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR TOMKINS |
| Respondent: | MS FAULKES |
| File Number: | SYC 4464 of 2014 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 10, 11 and 12 December 2018 |
| Date of Last Submission: | 18 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Milevski Family Lawyers |
| Counsel for the Respondent: | Mr Bolger |
| Solicitors for the Respondent: | Finn Roache Lawyers |
ORDERS
THE COURT ORDERS ON A FINAL BASIS THAT:
Paragraphs 4, 6, 7, 11, 13, 16(b) and 17(b) of the Orders made by Judge Henderson (as her Honour then was) on 6 December 2017 be discharged on and from 25 February 2019.
Subject to these Orders, the child [X] born …2013 (“[X]”, or “the child”) live with the Mother on and from 25 February 2019.
If applicable, the father cause [X] to be returned to the mother’s care before 25 February 2019.
Subject to these Orders, [X] spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)During all School Terms:
i.commencing 27 February 2019 and each Wednesday thereafter, from after school (or 3:00pm on a non-school day) until 6:30pm, provided the father gives the mother written notification of his intention for that time to be spent, by no later than 5:00pm on the previous Sunday, otherwise this time be forfeited;
ii.commencing 1 March 2019 in a three week cycle (re-commencing each school term thereafter) for the first two consecutive weekends from after school (or 3:00pm on a non-school day) until 5:00pm on Sunday (or 5:00pm Monday in the event of a public holiday); and
iii.paragraph 4(a)(ii) may be extended to the commencement of school on the following day after the relevant Sunday (or public-holiday-Monday), should the father spend either evening in Town B AND provide the mother with written notification by no later than 4:00pm on the Tuesday prior to the relevant weekend.
(b)During School Term Holidays:
i.Commencing 2019, from the conclusion of school on the last day of school term until the mid-point of the relevant school term holiday; and
ii.Commencing 2020 and each year thereafter, from the conclusion of school on the last day of school term until 12 noon, 10 days after.
During the Long Summer School Holidays, [X] spend time as agreed in writing between the parties and failing agreement as follows:
(a)During the period in 2019/2020:
i.With the father from the conclusion of the last day of Term 4 until 5:00pm on 27 December 2019;
ii.With the mother from 5:00pm on 27 December 2019 until 5:00pm on 3 January 2020;
iii.With the father from 5:00pm on 3 January 2020 until 5:00pm on 10 January 2020;
iv.With the mother from 5:00pm on 10 January 2020 until 5:00pm on 17 January 2020;
v.With the father from 5:00pm on 17 January 2020 until 5:00pm on 24 January 2020; and
vi.With the mother from 5:00pm on 24 January 2020 until the commencement of school Term 1, 2020.
(b)During the period in 2020/2021:
i.With the mother from the last day of Term 4 in 2020 until 5:00pm on 27 December 2020;
ii.With the father from 5:00pm on 26 December 2020 until 5:00pm on 5 January 2021;
iii.With the mother from 5:00pm on 5 January 2021 until 5:00pm on 16 January 2021;
iv.With the father from 5:00pm on 16 January 2021 until 5:00pm on 27 January 2021.
(c)Commencing 2022/2023 and each alternate year (that is, each odd numbered year) thereafter:
i.With the father from the last day of Term 4 until 5:00pm on the mid-point of the relevant holiday period; and
ii.With the mother from 5:00pm on the mid-point of the relevant holiday period until the commencement of school in Term 1.
(d)Commencing 2022/2023 and each alternate year (that is, each even numbered year) thereafter:
i.With the mother from the last day of Term 4 until 5pm on the mid-point of the relevant holiday period; and
ii.With the father from 5:00pm on the mid-point of the relevant holiday period until 5:00pm on the day prior to the commencement of school in Term 1.
Each party do all acts and things to cause [X] to be forthwith enrolled and attend School 1 Public School in Town B.
Changeover not occurring at school, occur as agreed between the parties in writing and failing agreement as follows:
(a)at the mother’s residence, at the commencement of the child’s time with the father or at the conclusion of time should time be spent in Town B; and
(b)at Suburb C train station, at the conclusion of the child’s time with the father should the time be spent in Sydney.
For the purposes of these Orders, in the event there are two mid-points in the relevant holiday period, the changeover mid-point is the second mid-point.
Subject to any written agreement or further Order of the Court, the parties are restrained from relocating to any other city other than Town B or Sydney.
AND THE COURT ORDERS, IN THE EVENT THE FATHER RELOCATES TO TOWN B, THAT:
Paragraphs 2, 3, 4 and 7 herein be suspended.
[X] live with each parent as agreed and failing agreement, at all times except during the Long Summer School Holidays, on a week about basis and failing agreement as to the commencement and conclusion time, in a fortnightly cycle commencing Monday after school (or 3:00pm on a non-school day) and concluding the following Monday before school (or 3:00pm on a non-school day), with the mother in the first week and with the father in the second week.
Changeover not occurring at school, occur as agreed in writing and failing agreement, occur at the mother’s residence for any time [X] comes into the father’s care and occur at the father’s residence for any time [X] comes into the mother’s care.
AND THE COURT ORDERS, IN THE EVENT THE MOTHER RELOCATES TO SYDNEY, THAT:
Paragraphs 2, 3, 4, 6 and 7 herein be suspended.
[X] live with each parent as agreed and failing agreement, at all times except during the Long Summer School Holidays, on a week about basis and failing agreement as to the commencement and conclusion time, in a fortnightly cycle commencing Monday after school (or 3:00pm on a non-school day) and concluding the following Monday before school (or 3:00pm on a non-school day), with the father in the first week and with the mother in the second week.
Changeover not occurring at school, occur as agreed in writing and failing agreement, occur at the mother’s residence for any time [X] comes into the father’s care and occur at the father’s residence for any time [X] comes into the mother’s care.
Each party do all acts and things to cause [X] to be enrolled in and attend schooling at School 2 Public School in Sydney.
AND THE COURT FURTHER ORDERS THAT:
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Subject to these Orders, the Final Orders made 6 December 2017 remain in full force and effect and these Orders should be read in conjunction with those Orders further noting paragraphs 1, 2 and 3 have already been discharged.
B.The parties may benefit from attending Family Therapy as recommended by Dr L.
C.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 Annexure A and those particulars are included in these orders.
NOTATION:
Please note the Orders inserted to read Paragraph 5(c) and (d) of these Orders has been amended pursuant to rule 16.02(2)(3) of the Federal Circuit Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Tomkins & Faulkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4464 of 2014
| MR TOMKINS |
Applicant
And
| MS FAULKES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are on-going parenting proceedings between the Applicant, MR TOMKINS (“the father”) and the Respondent, MS FAULKES (“the mother”).
The relevant child of the parties’ relationship is [X] born …2013 (“[X]”, or “the child”).
This final hearing proceeded before me on 10, 11 and 12 December 2018. This matter has been remitted for re-hearing following a successful appeal by the mother seeking to set aside paragraphs 1, 2 and 3 of the final orders made by Judge Henderson (as her Honour then was) on 6 December 2017. The matter has become more complicated as the remainder of the final parenting orders may or may not be inconsistent with the outcome of this decision.
In summary, the issue in dispute requiring determination is the live with and spend time arrangements for [X], particularly when he commences school this year. The details of the orders sought by each party in relation to these remaining issues in dispute are extracted later in these reasons.
Each party was legally represented by counsel at the final hearing; Mr Duane appeared for the father and Mr Bolger appeared for the mother.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The father was born on …1977 and is currently 41 years of age. The mother was born on …1977 and is currently 41 years of age.
The parties commenced cohabitation in approximately early 2012.
There is one child to the relationship, [X], who is currently 5 years of age. [X] will commence schooling this year.
The parties separated on a final basis in April 2014 when the mother left the former matrimonial home with [X].
The father currently lives in Suburb D, in Sydney.
The mother currently lives in Town E, in the Town B area.
Procedural history
The father commenced these proceedings when he filed an Initiating Application on 18 July 2014 which sought both parenting and property orders. The mother filed her Response on 23 September 2014.
A summary of the relevant procedural history of this matter is set out below.
| 25 September 2014 | First return date. Interim Orders made by Judge Henderson for [X] to spend supervised time with the father three times a week at either …Park, Suburb D or …Library. |
| 31 October 2014 | Child Dispute Conference |
| 9 December 2014 | Matter was listed for interim hearing. Parties agreed to property and parenting orders including orders for [X] to spend unsupervised time for 3 days per week. An order for a Family Report was made and the matter further adjourned. |
| 11 March 2015 | Conciliation Conference. Property matter did not settle. |
| 30 June 2015 | Family Report by Dr L dated 29 June 2015 was released in Chambers of Judge Henderson. |
| 3 July 2015 | The matter was adjourned to a callover for the allocation of final hearing dates. |
| 17 November 2015 | The father files an Application in a Case seeking the mother be restrained from moving outside 5km from Child Care. |
| 26 November 2015 | Matter comes before Judge Henderson and her Honour makes injunctions including restraining the mother from causing [X] to live in Town B from Sunday to Thursday each week and for the father to care for the child on each Thursday and on each Sunday. |
| 30 December 2015 | Amended Response filed. |
| 5 February 2016 | Further interim orders made including the mother be permitted to relocate to Town B with [X], and for [X] to spend time with the Father from Sunday 5pm to Wednesday 5pm. |
| 1 April 2016 | Final Hearing listed and trial directions made by Judge Henderson. |
| 2 May 2017 | Supplementary Family Report dated 28 April 2017 released in Chambers. |
| 13 - 15 June 2017 | Final Hearing before Judge Henderson. Adjourned part-heard. |
| 9 – 10 October 2017 | Part-heard final hearing before Judge Henderson. |
| 19 October 2017 | Parties email Chambers of Judge Henderson enclosing Minute of Consent Parenting Orders (“the Consent Minute”). |
| 6 December 2017 | Judgment for final hearing delivered by Judge Henderson. Parenting and Property Orders made including particular consent orders extracted from the Consent Minute. The precise orders are stated below. |
| 3 January 2018 | Notice of Appeal filed by the mother. The father opposes the appeal and sought to uphold the final orders. |
| 9 July 2018 | Appeal heard by Ainslie-Wallace, Ryan and Austin JJ. |
| 10 August 2018 | Appeal Judgment delivered including orders setting aside Orders 1, 2 and 3 made on 6 December 2017 by Judge Henderson and for the proceedings to be remitted for re-hearing (“the Appeal)”. The precise orders are stated below. |
| 6 September 2018 | Matter first came before me for allocation of final hearing dates. |
The final orders made by Judge Henderson on 6 December 2017 (“the Final Orders”) are as follows:
1. The child to live with the father in Sydney commencing the week prior to school resuming in January 2019.
2. Upon the mother relocating to live in Sydney the child to live with his parents on a week about basis from the cessation of school Monday or as agreed.
3. The child to live with the mother from the second week after she has re-located to Sydney and each alternate week thereafter and with the father at all other times.
4. The child to spend half of all school holidays with each parent subject to order 21(b) and (c) and order 22(b) and (c).
5. Pursuant to Section 65Y(2) of the Family Law Act 1975 each party is permitted to travel overseas with the child during periods the child is living with that party pursuant to these orders or at such other times as the parties agree upon in writing provided they have:
a. Given the other parent 42 days of notice of their intention to travel;
b. Provided a copy of the itinerary for the travel to the other parent; and
c. Provided a copy of the return airflight ticket for the child and contact details for the child whilst overseas to the other parent.
6. Pending the commencement of Order 1 the child to live with his father in the same cycle of time as is current and as follows:
a. In week one from 5pm Sunday to 5 pm Wednesday 5 pm with changeover to occur on Sunday at Central railway station and on Wednesday at the mother’s home; and
b. In week two from 5 pm Saturday to 5pm Wednesday with changeover to occur at Central railway station on Saturday and on Wednesday at the mother’s home, otherwise the child to live with his mother.
7. In the event the father proposes to attend the child’s sport on Saturday in week 2 he is to give the mother 5 days’ notice of his intention and he will collect the child from Town B after his sporting fixture.
8. The by way of alteration property interests under Section 90SM of the Family Law Act 1975 the applicant father pay to the respondent mother the sum of $92,000.
9. Thereafter the parties are entitled to whatever assets stand in their name as at today’s date including but not limited to superannuation accounts, bank accounts, shares, trusts, and real estate.
BY CONSENT THE COURT ORDERS THAT:
10. The father and mother have equal shared parental responsibility for the child [X] born …2013.
11. Upon the commencement of Order 1 and for as long as the mother remains living in Town B the child to spend time with his mother as follows:
a. During two out of every three weekends, from 7pm on Friday to 5pm on Sunday, or the commencement of school the following day should the mother spend this time in Sydney and provided that he notifies the Mother of his intention to do so prior to him collecting [X] for the said weekend;
b. During any long weekend (being a weekend during [X]’s school term which includes a public holiday on a Monday or a Friday), [X]’s time with the mother is to be extended to include the public holiday, to commence at 7pm on the day [X] finishes school and concluding at 5pm on the last day of the long weekend;
c. During any term school holidays (April, June and September), [X] is to spend time with the mother during the first half of each school holiday period in 2019 and for the first 10 days of each holiday period in 2020 and each year thereafter commencing after school on the last day of [X]’s school term with the father to deliver [X] to the mother at her residence by 7pm and the mother to deliver [X] to the father on the last day of such period and [X] is to spend the remainder of the term school holidays with the father; and
d. During the December to January school holidays:
i. In December 2018/January 2019 [X] is to spend time with the mother for a period of seven (7) consecutive nights (8 days) as nominated by the mother in writing to the father by 15 November 2018 during which period the time provided for in Order 11(a) shall be suspended, otherwise Order 11(a) shall continue to operate;
ii. In December 2019/January 2020 [X] is to spend time with the mother on an alternating week about basis commencing on the last day of [X]’s school term with the Father to deliver [X] to the Mother at her residence by 7pm for seven (7) consecutive nights concluding at 5pm on the eighth (8th) day, with the Mother to deliver [X] to the Father at 5pm, and alternating weekly thereafter with [X] to spend the balance of the said holiday period with the father;
iii. In December 2020/January 2021 [X] is to spend time with the mother during the first two weeks of the school holidays commencing after school on the last day of [X]’s school term with the Father to deliver [X] to the Mother at her residence by 7pm. The Mother to deliver [X] to the Father at 5pm on the 14th day of the school holiday period. [X] will then spend the fifth week of the school holiday period with the mother with the Father to deliver [X] to the Mother’s residence at 5pm on the 28th day of the school holiday period and the Mother to return [X] to the Father at 5pm on the 35th day of the school holiday period;
iv. From December 2021/January 2022 and each alternate year thereafter [X] is to spend time with the mother for the second half of the school holiday period commencing on the 21st day of the school holiday period with the Father to deliver [X] to the Mother at her residence by 7pm on the 21st day and the Mother to return [X] to the Father at 5pm on the day prior to the commencement of the new school year; and
v. From December 2022/January 2023 and each alternate year thereafter [X] is to spend time with the mother for the first half of the school holiday period commencing on the last day of [X]’s school terms with the Father to deliver [X] to the Mother at her residence by 7pm and the Mother to return [X] to the Father at 5pm on the 21st day of the school holiday period.
12. During the December 2018/January 2019 school holiday period [X] shall spend time with the father for a period of seven (7) consecutive nights (8 days) as nominated by the father in writing to the mother by 15 November 2018 during which period the time provided for in order 11(a) shall be suspended.
13. If [X] lives in Sydney he is to be enrolled in primary school at either Suburb D Public School or School 2 Public School.
14. Each of the parties shall be at liberty to propose to the other not more than three (3) high schools for [X] to attend and seek that the other sign any relevant Application for Enrolment to enable a place to be secured for [X] to attend that school should a place become available and in doing shall sign all necessary documents as presented to them and return same duly and properly completed within seven (7) days of receipt of such application, the parent nominating the school shall be solely responsible for all costs associated with the Application Form for the school nominated by them.
15. Compliance with Order 14 above is not taken to be consent by the other parent to the child attending the school nominated by them.
16. Notwithstanding any other order [X] shall live with the Father as follows:
a. On Father’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Father’s Day until 5pm on Father’s Day or until the commencement of school the following day should the Father advise the Mother in writing of his intention to do so not later than 48 hours prior to Father’s Day;
b. From 3pm on Christmas Eve until 3pm Boxing Day in the 2017 year and for that period in each alternate year thereafter;
c. From 3pm on Good Friday 2018 until 3pm on Easter Saturday 2018 and for that period in each alternate year thereafter; and
d. From 3pm on Easter Saturday 2019 until 6pm on Easter Monday 2019 and for that period in each alternate year thereafter.
17. Notwithstanding any other order, [X] shall spend time with the Mother as follows:
a. On Mother’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Mother’s Day until 5pm on Mother’s Day or until the commencement of school the following day should the Mother advise the Father in writing of his intention to do so not later than 48 hours prior to Mother’s Day;
b. From 3pm on Christmas Eve until 3pm on Boxing Day in the 2018 year and for that period in each alternate year thereafter;
c. From 3pm on Good Friday 2019 until 3pm on Easter Saturday 2019 and for that period in each alternate year thereafter; and
d. From 3pm on Easter Saturday 2018 until 6pm on Easter Monday 2018 and for that period in each alternate year thereafter.
18. The parties shall facilitate a Skype/FaceTime call between [X] and the other parent on Christmas Day, Easter Sunday, [X]’s birthday and their respective birthdays in the event that [X] is in their care on the said day.
19. For the purposes of these Orders the school holiday periods are deemed to begin at the conclusion of school on the last day of the school term and to conclude at the commencement of the first day of the following school term.
20. Each of the parties shall:
a. Not later than twenty-four (24) hours prior to the same, inform the other of any medical treatment being administered to [X] and of any appointments at which [X] is to attend;
b. Provide all authorities and directions necessary for all health professionals consulted by [X] and all schools or preschools attended by [X] to provide to each of the parties all information and material held by them in relation to [X]; and
c. Sign all documents as are necessary to be identified as the primary and alternate emergency contact on all documentation relating to [X].
21. Both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number, Skype contact details and email address as is applicable.
22. Both parties be at liberty to communicate with [X] by telephone and any other electronic method utilised by [X] including but not limited to E-mail, SMS text message, Skype and Facebook at all reasonable times by contacting [X] by any of those means and that neither parent shall unreasonably refuse [X] from communicating with the other parent.
23. Each of the parties shall ensure that [X] have reasonable access to a mobile telephone and/or computer to enable him to communicate with the other parent pursuant to Orders 11 and 14 hereof.
24. Each of the parties shall not later than 48 hours prior to the same notify the other of all school, sporting and extra-curricular events for [X] and that each parent be permitted to attend all such activities in which [X] participates.
25. The parties be restrained and use their best endeavours so as to prevent any other person from:
a. Making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of [X];
b. Discussing these proceedings with or in the presence or hearing of [X]; and,
c. Physically disciplining [X].
As stated, the precise Orders made by the Full Court of the Family Court on appeal are as follows:
(1) The Application in an Appeal filed on 5 March 2018 be dismissed.
(2) The appeal be allowed.
(3) Orders 1, 2 and 3 dated 6 December 2017 be set aside.
(4) That the proceedings be remitted for re-hearing before a judge other than Judge Henderson.
(5) That the father pay the mother’s costs of the appeal in the amount $20,000 within twenty-eight (28) days of these orders.
(6) The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.
As stated, the re-mitted final hearing proceeded on 10, 11 and 12 December 2018, with further submissions being received on 18 December 2018.
Agreed outcomes
At the first final hearing before Judge Henderson the parties agreed on the following Minute of Consent Orders dated 10 October 2017:
Parenting Orders
DEFINITIONS
1. In these Orders, the following definitions shall apply:
1.1 “Father” means the Applicant, Mr Tomkins.
1.2 “Mother” means the Respondent, Ms Faulkes.
1.3 “[X]” means the child of the relationship, [X] born on …2013.
ORDERS
1. That the Father and Mother have equal shared parental responsibility for [X].
2. If the Court determines that [X] is to live with the Father in Sydney and the Mother does not live in Sydney, [X] is to live with the Father at all times other than when he is to spend time with the Mother as follows:
2.1 During two out of every three weekends, from 7pm on Friday to 5pm on Sunday, or the commencement of school the following day should the Mother spend this time in Sydney and provided that she notifies the Father of her intention to do so prior to her collecting [X] for the said weekend.
2.2 During any long weekend (being a weekend during [X]’s school term which includes a public holiday on a Monday or a Friday), [X]’s time with the Mother is to be extended to include the public holiday, to commence at 7pm on the day [X] finishes school and concluding at 5pm on the last day of the long weekend.
2.3 During any term school holidays (April, June and September), [X] is to spend time with the Mother during the first half of each school holiday period in 2019 and for the first 10 days of each holiday period in 2020 and each year thereafter commencing after school on the last day of [X]’s school term with the Father to deliver [X] to the Mother at her residence by 7pm and the Mother is to deliver [X] to the Father on the last day of such period and [X] is to spend the remainder of the term school holidays with the Father.
2.4 During the December to January school holidays:-
2.4.1. In December 2018/January 2019 [X] is to spend time with the Mother for a period of seven (7) consecutive nights (8 days) as nominated by the Mother in writing to the Father by 15 November 2018 during which period the time provided for in Order 2.1 shall be suspended, otherwise order 2A shall continue to operate;
2.4.2. In December 2019/January 2020 [X] is to spend time with the Mother on an alternating week about basis commencing on the last day of [X]’s school term with the Father to deliver [X] to the Mother at her residence by 7pm for seven (7) consecutive nights concluding at 5pm on the eighth (8th) day, with the Mother to deliver [X] to the Father at 5pm, and alternating weekly thereafter with [X] to spend the balance of the said holiday period with the Father;
2.4.3 In December 2020/January 2021 [X] is to spend time with the Mother during the first two weeks of the school holidays commencing after school on the last day of [X]’s school term with the Father to deliver [X] to the Mother at her residence by 7pm. The Mother is to deliver [X] to the Father at 5pm on the 14th day of the school holiday period. [X] will then spend the fifth week of the school holiday period with the Mother with the Father to deliver [X] to the Mother’s residence at 5pm on the 28th day of the school holiday period and the Mother to return [X] to the Father at 5pm on the 35th day of the school holiday period.
2.4.4 From December 2021/January 2022 and each alternate year thereafter [X] is to spend time with the Mother for the second half of the school holiday period commencing on the 21st day of the school holiday period with the Father to deliver [X] to the Mother at her residence by 7pm on the 21st day and the Mother to return [X] to the Father at 5pm on the day prior to the commencement of the new school year.
2.4.5 From December 2022/January 2023 and each alternate year thereafter [X] is to spend time with the Mother for the first half of the school holiday period commencing on the last day of [X]’s school terms with the Father to deliver [X] to the Mother at her residence by 7pm and the Mother to return [X] to the Father at 5pm on the 21st day of the school holiday period.
2A. That during the December 2018/January 2019 school holiday period [X] shall spend time with the Father for a period of seven (7) consecutive nights (8 days) as nominated by the Father in writing to the Mother by 15 November 2018 during which period the time provided for in order 2.1 shall be suspended.
3. If the Court determines that [X] is to live with the Mother in Town B and the Father remains in Sydney, [X] is to live with the Mother at all times other than when he is to spend time with the Father as follows:
3.1 During two out of every three weekends, from 7pm on Friday to 5pm on Sunday, or the commencement of school the following day should the Father spend this time in Town B and provided that he notifies the Mother of his intention to do so prior to him collecting [X] for the said weekend.
3.2 During any long weekend (being a weekend during [X]’s school term which includes a public holiday on a Monday or a Friday), [X]’s time with the Father is to be extended to include the public holiday, to commence at 7pm on the day [X] finishes school and concluding at 5pm on the last day of the long weekend.
3.3 During any term school holidays (April, June and September), [X] is to spend time with the Father during the first half of each school holiday period in 2019 and for the first 10 days of each holiday period in 2020 and each year thereafter commencing after school on the last day of [X]’s school term with the Father to collect [X] from the Mother at her residence by 5pm and the Mother is to collect [X] from the Father on the last day of such period at 5pm and [X] is to spend the remainder of the term school holidays with the Mother.
3.4 During the December to January school holidays:-
3.4.1 In December 2018/January 2019 [X] is to spend time with the Father for a period of seven (7) consecutive nights (8 days) as nominated by the Father in writing to the Mother by 15 November 2018 during which period the time provided for in Order 3.1 shall be suspended, otherwise order 3.1 shall continue to operate;
3.4.2 In December 2019/January 2020 [X] is to spend time with the Father on an alternating week about basis commencing on the last day of [X]’s school term with the Father to collect [X] from the Mother at her residence by 5pm for seven (7) consecutive nights concluding at 5pm on the eighth (8th) day, with the Mother to collect [X] from the Father at 5pm, and alternating weekly thereafter with [X] to spend the balance of the said holiday period with the Mother;
3.4.3 In December 2020/January 2021 [X] is to spend time with the Father during the first two weeks of the school holidays commencing after school on the last day of [X]’s school term with the Father to collect [X] from the Mother at her residence by 5pm. The Mother is to collect [X] to the Father at 5pm on the 14th day of the school holiday period. [X] will then spend the fifth week of the school holiday period with the Father with the Father to deliver [X] to the Mother’s residence at 5pm on the 28th day of the school holiday period and the Mother to collect [X] from the Father at 5pm on the 35th day of the school holiday period.
3.4.4 From December 2021/January 2022 and each alternate year thereafter [X] is to spend time with the Father for the second half of the school holiday period commencing on the 21st day of the school holiday period with the Father to collect [X] from the Mother at her residence by 5pm on the 21st day and the Mother to collect [X] from the Father at 5pm on the day prior to the commencement of the new school year.
3.4.5 From December 2022/January 2023 and each alternate year thereafter [X] is to spend time with the Father for the first half of the school holiday period commencing on the last day of [X]’s school terms with the Father to collect [X] from the Mother at her residence by 5pm and the Mother to collect [X] from the Father at 5pm on the 21st day of the school holiday period.
3A. That during the December 2018/January 2019 school holiday period [X] shall spend time with the Mother for a period of seven (7) consecutive nights (8 days) as nominated by the Mother in writing to the Father by 15 November 2018 during which period the time provided for in order 3.1 shall be suspended.
4. If [X] lives in Sydney he is to be enrolled in primary school at either Suburb D Public School or School 2 Public School.
5. If [X] lives in Town B he is to be enrolled in primary school at School 3.
6. That each of the parties shall be at liberty to propose to the other not more than three (3) high schools for [X] to attend and seek that the other sign any relevant Application for Enrolment to enable a place to be secured for [X] to attend that school should a place become available and in doing shall sign all necessary documents as presented to them and return same duly and properly completed within seven (7) days of receipt of such application, the parent nominating the school shall be solely responsible for all costs associated with the Application Form for the school nominated by them.
6A. Compliance with order 6 above is not taken to be consent by the other parent to the child attending the school nominated by them.
Special Occasions
7. Notwithstanding any other order [X] shall live with the Father as follows:
7.1 On Father’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Father’s Day until 5pm on Father’s Day or until the commencement of school the following day should the Father advise the Mother in writing of his intention to do so not later than 48 hours prior to Father’s Day;
7.2 From 3pm on Christmas Eve until 3pm Boxing Day in the 2017 year and for that period in each alternate year thereafter;
7.3 From 3pm on Good Friday 2018 until 3pm on Easter Saturday 2018 and for that period in each alternate year thereafter.
7.4 From 3pm on Easter Saturday 2019 until 6pm on Easter Monday 2019 and for that period in each alternate year thereafter.
8. Notwithstanding any other order, [X] shall spend time with the Mother as follows:
8.1. On Mother’s Day in each year at times to be agreed in writing and failing agreement from 7pm on the Friday prior to Mother’s Day until 5pm on Mother’s Day or until the commencement of school the following day should the Mother advise the Father in writing of his intention to do so not later than 48 hours prior to Mother’s Day;
8.2. From 3pm on Christmas Eve until 3pm on Boxing Day in the 2018 year and for that period in each alternate year thereafter;
8.3 From 3pm on Good Friday 2019 until 3pm on Easter Saturday 2019 and for that period in each alternate year thereafter.
8.4 From 3pm on Easter Saturday 2018 until 6pm on Easter Monday 2018 and for that period in each alternate year thereafter.
9. That the parties shall facilitate a Skype/FaceTime call between [X] and the other parent on Christmas Day, Easter Sunday, [X]’s birthday and their respective birthdays in the event that [X] is in their care on the said day.
10. That for the purposes of these Orders the school holiday periods are deemed to begin at the conclusion of school on the last day of the school term and to conclude at the commencement of the first day of the following school term.
11. That each of the parties shall:
11.1 Not later than twenty-four (24) hours prior to the same, inform the other of any medical treatment being administered to [X] and of any appointments at which [X] is to attend;
11.2 Provide all authorities and directions necessary for all health professionals consulted by [X] and all schools or preschools attended by [X] to provide to each of the parties all information and material held by them in relation to [X]; and,
11.3 Sign all documents as are necessary to be identified as the primary and alternate emergency contact on all documentation relating to [X].
12. That both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number, Skype contact details and email address as is applicable.
13. That both parties be at liberty to communicate with [X] by telephone and any other electronic method utilised by [X] including but not limited to E-mail, SMS text message, Skype and Facebook at all reasonable times by contacting [X] by any of those means and that neither parent shall unreasonably refuse [X] from communicating with the other parent.
14. That each of the parties shall ensure that [X] have reasonable access to a mobile telephone and/or computer to enable him to communicate with the other parent pursuant to Orders 9 and 12 hereof.
15. That each of the parties shall not later than 48 hours prior to the same notify the other of all school, sporting and extra-curricular events for [X] and that each parent be permitted to attend all such activities in which [X] participates.
16. That the parties be restrained and use their best endeavours so as to prevent any other person from:
16.1 Making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of [X];
16.2 Discussing these proceedings with or in the presence or hearing of [X]; and,
16.3 Physically disciplining [X].
I note the Orders made 6 December 2017 by Judge Henderson adapted this Minute of Consent Orders to suit the final orders her Honour made. As a consequence, her Honour did not make all the orders sought in the agreed minute and thus the Minute of Consent Orders is not applicable in this re-hearing. I note the mother’s orders seeks to rely on this Minute. The father’s proposal makes no reference to this Minute.
That all said, the parties at this final hearing agreed that both parties should have equal shared parental responsibility for [X]. This Order was made on 6 December 2017 and was not set aside by the Full Court.
The parties do not appear to be in dispute about schooling to the extent that if the Court favours the father’s proposal for the child to live with him in Sydney, the child will attend School 2 Public School; and if the Court favours the mother’s proposal for the child to with her in Town B, then the child will attend School 1 Public School.
It also appears not to be in dispute that if both parties should live in the one location (that is, Sydney or Town B), then an equal time arrangement should automatically occur.[1] Otherwise, the parties’ have mirroring spend time arrangements for the child.
[1] The Court notes that the father did not formally propose an order for an equal time arrangement should he reside in Town B, but indicated to the Court that any relocation to Town B by him would be a ‘last resort.’
Proposals
Both parties provided comprehensive Minutes of Proposed Orders sought which were amended during the course of the final hearing. As stated, both parties have mirroring proposals to some extent. The father’s Minute of Proposed Orders was tendered by the Court as Exhibit “C” and the details are discussed below. The mother’s Minute of Proposed Orders was tendered by the Court as Exhibit “D” and the details are discussed below.
Father
In summary, the father seeks orders for the child to live with him in Sydney and for the child to spend significant and substantial time on two out of three weekends with the mother. During the hearing, the father also modified his proposal so that in the event she was to relocate back to Sydney, the father would pay child support to assist the mother. The father also disclosed in his evidence that any move by him to Town B would be a “last resort.”[2] However, I note this proposal has been withdrawn in the amended minute as stated below.
[2] Transcript, 10 December 2018, page 34.
The precise orders sought by the father are as follows:[3]
[3] See Exhibit “C.”
1. That the Father and Mother have equal shared parental responsibility for [X].
2. That each of the Mother and Father have the day to day parental responsibility for [X] during such periods that he lives with or spends time with either of them.
3. That from the date of these orders until 14 January 2019, [X] shall live with the Father and the Mother in accordance with the following two week cycle:
3.1 In week one, with the father from 5pm on Sunday until 5pm on Wednesday and at all other times during week one with the mother; and
3.2 In week two, with the father from 5pm on Saturday until 5pm on Wednesday and at all other times during week two with the mother.
4. That for the purpose of order 3, the Mother is to deliver [X] to the Father at Suburb C train station on either the Saturday or Sunday at 5pm, and the Father is to deliver [X] to the Mother’s residence each Wednesday at 5pm.
5. That from 14 January 2019, [X] shall live with Father and the Mother as follows:
OPTION 1
5.1 If the Court determines that [X] is to live in Sydney and the Mother lives in Sydney, from 14 January 2019 until 13 January 2021:
5.1.1 Week One: Monday at 9am to Wednesday at 3pm with the Father, and the remaining time during week one with the Mother, and each alternate week thereafter.
5.1.2 Week Two: Monday at 9am to Wednesday at 3pm with the Mother, and the remaining time during week two with the Father, and each alternate week thereafter.
5.2 That from 14 January 2021, [X] live with each of the Mother and Father for a consecutive period of 7 days alternating over a 14 day period as follows:
5.2.1 That [X] live with the Father from the conclusion of school on the first Monday immediately following the commencement of the school year for a period of 7 consecutive days until before school the following Monday and for the same period in each alternate week.
5.2.2 That [X] reside with the Mother from the conclusion of school on Monday in the second week immediately following the commencement of the school year for a consecutive period of 7 days until before school the following Monday and for the same period in each alternate week.
OPTION 2
5.3 If the Court determines that [X] is to live with the Father in Sydney and the Mother does not live in Sydney, [X] is to spend time with the Mother as follows:
5.3.1 During two out of every three weekends, the Mother is to collect [X] from school on Friday afternoons and the Father is to collect [X] from the Mother at her residence at 4pm on Sunday.
5.3.2 During any long weekend (being a weekend during [X]’s school term which includes a public holiday or pupil free day on a Monday or a Friday), [X]’s time with the Mother is to be extended to include the public holiday or pupil free day, with the mother to collect [X] at the conclusion of school and Father to collect [X] from the mother at 4pm from her residence on the last day of the long weekend.
OPTION 35.4 If the Court determines that[X]is to live with the Mother inTown B,[X]is to spend time with the Father as follows:5.4.1 During two out of every three weekends, the Father is to collect[X]from school on Friday afternoons and the Mother is to collect[X]from the Father at the Suburb C train station at 4pm.5.4.2 During any long weekend (being a weekend during[X]’sschool term which includes a public holiday or pupil free day on a Monday or a Friday),[X]’stime with the Father is to be extended to include the public holiday or pupil free day, with the Father to collect[X]from the conclusion of school on the day[X]finishes school and the Mother is to collect[X]from the Father at Suburb C train station at 4pm on the last day of the long weekend.School holiday orders for each option
6. During the Autumn, Winter and Spring school holiday periods, [X] is to spend time each holiday period as agreed between the parents and failing agreement:
6.1 With the Mother for the first half of each school holiday period and with the Father for the second half in even-numbered years;
6.2 With the Father for the first half of each school holiday period and the Mother for the second half in odd-numbered years; and
6.3 In the event that any school holiday period cannot be divided equally in accordance with these orders (due to the number of days being an odd number), the parent who is spending the second half of the school holidays with [X] is to spend the additional day with [X].
7. During the Summer school holiday period and until the conclusion of 2020 Summer school holidays, [X] shall spend time with each of the Mother and the Father during the Summer school holiday period as agreed between the Mother and the Father, and failing agreement [X] is to live with each of the Mother and Father for a consecutive period of 7 days alternating over a 14 day period with the first 7 day period with the Mother in even-numbered years and with the Father in odd-numbered years.
8. That from the 2021 Summer school holidays onwards, [X] shall spend time with each of the Mother and the Father during the Summer school holiday period as agreed between the Mother and the Father, and failing agreement:
8.1 With the Mother in the first half of the term school holidays and with the Father in the second half of the term school holidays in even numbered years; and
8.2 With the Father in the first half of the term school holidays and with the Mother in the second half of the term school holidays in odd numbered years.
9. That for the purposes of these Orders the school holiday periods are deemed to begin at the conclusion of school on the last day of the school term and to conclude at the commencement of the first day of the following school term.
Changeover
10. For the purposes of implementing order 5.1 and 5.2 hereof, each parent or their nominee is to collect [X] from after school on the Monday at the commencement of each period of residence and each parent of their nominee is to deliver [X] to school at the conclusion of each such period of residence.
11. That for the purposes of orders 5.1 and 5.2, in the event the Mother is unable to collect or deliver [X] to school at any time for any reason, she is to first provide the Father with the opportunity to collect or deliver [X] at the commencement and conclusion of school and for the purpose of this order only if the Father is collecting [X] from school on behalf of the Mother, he is to deliver [X] to the Mother at any reasonable time and location nominated by the Mother.
School
12. If [X] lives in Sydney he is to be enrolled in primary school at School 2 Public School.
13. If [X] lives in Town B he is to be enrolled in primary school at School 1 Public School.
14. For the purposes of orders 11 and 12 hereof, the parties are to do all acts and things and sign all documents necessary so as to enrol [X] in the said schools.
15. That the parties shall not enrol [X] in any educational institution without first consulting each other and reaching agreement with respect to the same in writing.
Special Occasions
16. Notwithstanding any other order [X] shall live with the Father as follows:
16.1 On Father’s Day in each year at times to be agreed in writing and failing agreement from the conclusion of school on the Friday immediately before Father’s Day until before school on Monday if [X] is living in Sydney or until 6pm on Father’s Day if [X] is living in Town B.
16.2 From 4pm on 21 December 2018 until 4pm on 24 December 2018 and for the purposes of this period of time the mother is to deliver [X] to the Father at Suburb C at the commencement of the period and the Father is to deliver [X] to the Mother at her residence at the conclusion of the period.
16.3 From 4pm on 23 December until 4pm on 27 December 2019 and for that same period in each alternate year thereafter.
16.4 From 4pm on the Thursday immediately prior to Good Friday 2019 until 4pm on Tuesday immediately following Easter Monday 2019 and for the same period in each alternate year thereafter.
17. Notwithstanding any other order, [X] shall spend time with the Mother as follows:
17.1 On Mother’s Day in each year at times to be agreed in writing and failing agreement from the conclusion of school on the Friday immediately before Mother’s Day until before school on Monday if [X] is living in Town B or until 6pm on Mother’s Day if [X] is living in Sydney.
17.2 From 4pm on 23 December until 4pm on 27 December 2018 and for that same period in each alternate year thereafter.
17.3 From 4pm on the Thursday immediately prior to Good Friday 2020 until 4pm on Tuesday immediately following Easter Monday 2020 and for the same period in each alternate year thereafter.
18. That for the purposes of Orders 6, 7, 8, 16 and 17 hereof, the parent with whom [X] is to spend time will collect [X] from the other parent such that if [X] is in the Father’s care, the Mother shall collect [X] from the Father at Suburb C train station at the commencement of her period of time, and if [X] is in the mother’s care, the Father is to collect [X] from the mother at her residence at the commencement of his time.
19. That each of the parties shall:
19.1 Not later than forty eight (48) hours prior to the same, inform the other of any medical treatment being administered to [X] and of any appointments at which [X] is to attend;
19.2 Provide all authorities and directions necessary for all health professionals consulted by [X] and all schools or preschools attended by [X] to provide to each of the parties all information and material held by them in relation to [X]; and,
19.3 Sign all documents as are necessary to be identified as the primary and alternate emergency contact on all documentation relating to [X].
20. That both parties shall keep the other party informed at all times of their current residential address, residential telephone number, mobile telephone number, Skype contact details and email address as is applicable.
21. That both parties be at liberty to communicate with [X] by telephone and any other electronic method utilised by [X] including but not limited to E-mail, SMS text message, Skype and Facebook at all reasonable times by contacting [X] by any of those means and that neither parent shall unreasonably refuse [X] from communicating with the other parent.
22. That each of the parties shall ensure that [X] have reasonable access to a fixed line telephone and/or mobile telephone and/or computer to enable him to communicate with the other parent pursuant to order 21 hereof.
23. That each of the parties shall not later than 48 hours prior to the same notify the other of all school, sporting and extra-curricular events for [X] and that each parent be permitted to attend all such activities in which [X] participates.
24. That the parties be restrained and use their best endeavours so as to prevent any other person from:
24.1 Making any derogatory comments to or about the other party or his or her
relatives to or in the presence or hearing of [X];
24.2 Discussing these proceedings with or in the presence or hearing of [X]; and,
24.3 Physically disciplining [X].
25. That consent orders are signed on the basis that[X]shall reside in Sydney with our client and proposed Order 5.3 in our client’s Case Outline shall apply (unless your client also resides in Sydney and order 5.1 shall apply).26. That upon the mother relocating [X]’s residence to within a 25km radius of School 2 Public School, a Binding Child Support Agreement be entered into that provides for:
26.1 A lump sum child support payment from the father to the mother in the amount of $21,447.00. Such payment to be made within 30 days of the date entering into this agreement with such payment to be made to an account in the mother’s name and the mother shall be at liberty to make such weekly withdrawals as she considers appropriate.
26.2. Periodic child support in the sum of $300.00 per week for the period of 3.5 years, payable each Friday within 7 days of the date that your client relocates to Sydney and weekly for the period of 3.5 years.
27. Following the final payment of 2.2 above that neither party pay periodic child support to each other.
28. The father meets all school expenses for [X].
Annexed to the father’s Minute of Proposed Orders is a Proposed Binding Child Support Agreement only signed by the father.[4] In summary, in the event that the agreement is executed, the father will pay the mother an initial lump sum of $30,000 and a further lump sum of $54,600 (which equates to $300 per week for a period of 3 years and 6 months). This revised proposal (and in particular the possible execution of a Binding Child Support Agreement) was made after the father was cross examined.
[4] See Exhibit “C.”
Mother
In summary, the mother seeks orders for the child to live with her in Town B and for the child to spend significant and substantial time with the father. In the event the mother relocates back to Sydney, or the father relocates to Town B, the mother proposes an equal time arrangement. In the event the Court orders the child to live with the father in Sydney, then the mother proposes orders for the child to spend significant and substantial time with her.
The precise orders sought by the mother are as follows:[5]
[5] See exhibit “D.”
In relation to the child [X], born …2013 (“[X]”).
1. That [X] live with the Mother in Town B.
2. That [X] attend School 1 Public School from January 2019.
3. That [X] spend time with the Father as agreed by the parties, and failing agreement, in accordance with Order 3 of the Consent Order dated 10 October 2017.
4. That Orders 1, 6, 6A, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 2A and 3A of the Consent Order dated 10 October 2017 continue to have effect.
5. Should the Father relocate to the Town B area, then, in the alternative to order 3, [X]:
a. live with the his parents on a week about basis from the cessation of school Monday, or as agreed.
b. spend equal time with each parent during the school holidays, or as agreed.
c. Changeover is to occur at school/ or the parent’s place of residence in Town B if not a school day.
6. The Changeover for order 3 is as follows:
a. The Father collect [X] from the cessation of school on the Friday afternoon; and
b. The Mother collect [X] from Suburb C station at 4pm on a Sunday evening.
In the alternative, if the Court orders that [X] live with the Father in Sydney then:
7. Should the Court order that [X] live with the Father in Sydney then:
7.1 That [X] attend School 2 Public School from January 2019.
7.2 That [X] spend time with the Mother as agreed by the parties, and failing agreement, in accordance with Order 2 of the Consent Order dated 10 October 2017.
7.3 That Orders 1, 6, 6A, 7, 8, 9, 10, 11, 12 ,13, 14, 15, 16, 2A and 3A of the Consent Order dated 10 October 2017 continue to have effect.
7.4 Should the Mother relocate to Sydney, then, in the alternative to order 7.2, [X]:
a. Live with his parents on a week about basis from the cessation of school Monday, or as agreed.
b. Spend equal time with each parent during the school holidays, or as agreed.
c. Changeover is to occur at school/ or the parent’s place of residence in Sydney if not a school day.
7.5 The changeover for order 7.2 is as follows:
a. The Father drop [X] to the Mother by 6pm Friday afternoon at the Mother’s residence in Town B; and
b. The Mother drop [X] to the Father at Suburb C station by 5pm on a Sunday evening or … train station if Suburb C is not reasonably practicable, due to track work or train timetabling or the train does not continue to Suburb C.
Issues
The following issues arise for determination in this case:
·Whether the child should live with the father in Sydney or live with the mother in Town B and, depending on that determination, the consequential spend time arrangements with the other party (noting the stated proposals above);
·Whether the child should live in an equal time arrangement, in the event the parties live in the same city (noting the stated proposals above).
Evidence
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition, the following witnesses were required for cross examination:
·Family Consultant, Dr L;
·The paternal grandmother, Ms G; and
·The mother’s friend, Ms H.
Father
The father relied on the following documents at the final hearing:
·His Initiating Application filed 18 July 2014;[6]
·His Affidavit affirmed and filed 16 November 2018;
·His Affidavit affirmed and filed 6 December 2018; and
·Affidavit of Ms G sworn 15 November 2018 and filed 16 November 2018.
[6] Although the father did not specifically rely on this document, the Court has considered this document for contextual purposes.
The father tendered documents in relation to employment opportunities at Employer 1 and Employer 2 (Exhibit “AF1”)
The father was a well-spoken and articulate witness. While he was measured in his responses, it was clear that he does not trust the mother. While the father was also able to agree to some reasonable propositions, he presented somewhat fixed in his determination to have the child live in Sydney.
The paternal grandmother was also required for cross examination. She was also well spoken and articulate and clearly partisan to the father. The paternal grandmother presented as an organised person with a strong personality. Under cross-examination it was clear that the paternal grandmother exercises considerable financial control over the father, including an admission that she was funding the father’s considerable legal costs. That said, the paternal grandmother’s evidence about entertaining her children, their partners and her grandchildren, for regular weekend family dinners, came across as genuine and family focussed.
Mother
The mother relied on the following documents at the final hearing:
·Her Response filed 23 September 2014;
·Her Affidavit sworn and filed 2 October 2018;
·Her Affidavit sworn 28 November 2018 and filed 29 November 2018; and
·Affidavit of Ms H sworn 27 November 218 and filed 29 November 2018.
The mother tendered the following documents:
·Her Optus mobile phone telephone records marked 10 March 2018 (Exhibit “RM1”);
·Her letter requesting flexible work arrangements dated 4 September 2018 (Exhibit “RM2”);
·Her Work Cover NSW – Certificate of Capacity dated 17 November 2017 (Exhibit “RM3”); and
·Her Contract of Employment dated 8 December 2015 (Exhibit “RM4”).
I note the mother sought the Court’s leave to rely on an Affidavit of Ms J sworn and filed on the second day of the final hearing. The father objected to this Affidavit being read. I determined that the Court should not read the affidavit on the basis that it would be unfairly prejudicial to the father and would require a further adjournment. As a consequence, the mother did not seek to rely on the affidavit. I note Annexure A of this affidavit identical to Exhibit “RM4,” Annexure B is also contained in Exhibit “RM2” and Annexure C is identical to Annexure B of the mother’s Affidavit sworn and filed 2 October 2018.
The mother spoke well and was, generally speaking, able to agree to reasonable propositions put to her. She was also very calm and measured in her responses.
Ms H was also well spoken and clearly supportive of the mother’s proposal.
Transcript from 2017 final hearing
The parties sought the Court to read selected parts of the transcript of the first final hearing. After dealing with objections and noting the parties were not able to agree on the selection, the Court allowed parties to provide a tabbed copy of the transcript identifying the relevant pages.
In summary, the mother relies on the following pages of the transcript:[7]
[7] Email correspondence to Chambers from Mr Bolger dated 18 December 2018.
·Page 20 ln 1 to 26 of 14 June 2017;
·Page 22 ln 35 to 44 of 14 June 2017;
·Page 28 ln 5 to 34 of 14 June 2017;
·Page 31 ln 21 to Page 33 ln 17 of 14 June 2017;
·Page 35 ln 1 to 7 of 14 June 2017;
·Page 23 ln 10 to 25 of 14 June 2017;
·Page 25 ln 9 to 27 of 14 June 2017;
·Page 27 ln 1 to 33 of 14 June 2017;
·Page 38 ln 20 to Page 41 ln 15 of 14 June 2017;
·Page 92 ln 44 to page 93 ln 15 of 14 June 2017;
·Page 98 ln 7 to 14 of 14 June 2017;
·Page 12 ln 10 to 46 of 15 June 2017;
·Page 15 ln 25 to page 18 ln 18 of 15 June 2017;
·Page 18 ln 20 to page 20 ln 13 of 15 June 2017;
·Page 38 to Page 39 ln 2 of 15 June 2017;
·Page 39 to 40 ln 33 of 9 October 2017;
·Page 40 ln 35 to page 41 ln 30 of 9 October 2017;
·Page 18 ln 20 to page 20 ln 13 of 9 October 2017;
·Page 41 ln 34 to page 43 ln 22 of 9 October 2017;
·Page 44 ln 27 to page 45 ln 25 of 9 October 2017; and
·Page 56 ln 30 to page 72 of 10 October 2017.
In summary, the father relies on the following pages of the transcript:[8]
·In relation to 15 June 2017, pages 11, 12, 26, 34 to 37, 55 to 71 and 76 to 95; and
·In relation to 9 October 2017, pages 8 to 13 and 19 to 22.
[8] Correspondence from Barry Bilsson Lawyers dated 14 December 2018.
The Court confirms that the abovementioned material has been read.
Family Consultant
Dr L, a Regulation 7 Family Consultant, prepared two Family Reports in this matter; the first report was released on 30 June 2015 (“the first Family Report”) and the second report was released on 2 May 2017 (“the second Family Report”). The Family Reports were tendered into evidence and became Exhibits “A” and “B” respectively.
First Family Report
The interviews for the first Family Report were conducted on 27 May 2015.
Dr L outlines the relevant background, current parenting arrangements, proposals and issues in paragraphs 1 to 13. She then goes on to outline her interview with the father in paragraphs 14 to 22 and with the mother in paragraphs 23 to 32. Details of Dr L’s observations of [X] (then aged one year and 11 months) appear in paragraphs 35 to 32.
Dr L thereafter provides her evaluation in paragraphs 40 to 54. In summary she states that:
·Neither party takes responsibility for the difficulties they have had and both project blame onto the other for being emotionally dysregulate and that notwithstanding any difficulties, they agreed that they planned to form a family together and shared excitement over that prospect.
·The circumstances surrounding the separation rendered it difficult for the parties to make mutually agreed arrangements for [X]’s care.
·The parties each make allegations and counter allegations about the mental health of the other and is defensive about their own wellbeing which makes it difficult for the parties to address the impact of the separation and proceedings has on them.
·Children who are as young as [X] when his parents separated, ideally require the co-operation of both parents to facilitate arrangements where they can have a stable base but spend time on a regular basis with the other parent, preferably several times weekly. In this regard, Dr L states that the parties in this case seem to have managed this with a limited degree of success. In addition, she states the self-nomination of a parent or significant others in the circle of that parent as supervisors of the other parent who has allegedly been aggressive is far from ideal and it is understandable that Mr Tomkins would have felt uncomfortable under surveillance and scrutiny.
·Both parties are highly reliant on the social, practical and financial assistance of significant others (in the case of Ms Faulkes, Mr K and Ms M, and for Mr Tomkins, his mother) and that historically there have been some limitations in the parties’ coping ability and that perhaps this has exacerbated the tension between the parties. Dr L stresses that the parties need to be mindful that children who witness family conflict are prone to suffer adverse consequences in their emotional and cognitive development which can manifest to other conditions. The conflict between the parents can impact adversely on the child’s psychosocial adjustment.
·The parties are currently at an impasse in their communication and although they say they have both completed a Parenting After Separation course, they do not seem to be able to communicate in the spirit of joint parental responsibility. The parties are encouraged to address this communication breakdown as otherwise they may need to consider a parallel parenting relationship where each of them makes decisions for [X] when he is in their care.
·The parties need to appreciate that the ease with which [X] will move between them is very much determined by their parental relationship, the level of conflict between them and their capacity to facilitate transitions without overt signs of anxiety.
·Whilst it would be envisaged that [X] will, in time, spend substantial time up to five evenings per fortnight with his father, at present there are a number of contra-indicators to equal time arrangements i.e. the level of conflict between the parties, their poor communication capacity and the uncertainty about any geographic distance that might separate them.
Dr L provides the following recommendations in paragraphs 55 to 59 of the first Family Report:
55. It is recommended that the parties work on improving their communication so they can assume joint parental responsibility.
56. It is recommended that [X] lives with his mother.
57. It is recommended that the time [X] spends with his father on Sundays be increased and that overnight time be introduced in approximately 6 to 9 months.
58. It is recommended that, by the time [X] begins school, he spends substantial time i.e. up to five evenings per fortnight, one half of school holidays and special occasions with his father.
59. It is recommended that Ms Faulkes address any fears about [X] separating from her in her therapy relationship.
Second Family Report
The interviews for the second Family Report were initially conducted in person on 25 October 2016 with follow up telephone interviews occurring on 20 April 2017 (mother) and 27 April 2017 (father).
Dr L updates the relevant background, current parenting arrangements, proposals and issues in paragraphs 1 to 10. Dr L then goes on to outline her interview with the father in paragraphs 11 to 19 and with the mother in paragraphs 20 to 28. She then goes on to provide her updated observations of [X] (then aged three years and 8 months) in paragraphs 29 to 42.
Dr L thereafter provides her updated evaluation in paragraphs 35 to 41. In summary she states:
·The parties continue to struggle with many of the issues that were raised at the time of the preparation of the previous report. Their communication remains tense and minimal, with each party projecting the difficulties in their parenting relationship onto the other. Their capacity to make decisions collaboratively in the interests of [X] remains fraught and, as a result, they mistrust each other.
·Both parties need to reflect on the contribution they make to their communication difficulties. They might benefit from engaging the services of a family therapist who specialises in family law to help them in this regard.
·The parties living in close proximity to each other would be the ideal outcome in this matter as it would allow both of them to still take the active role in [X]’s care which has occurred to date.
·The apprehension about [X] spending time overnight with Mr Tomkins that Ms Faulkes displayed at the time of the last report was prepared seems to have dissipated and she is able to acknowledge that [X] has adjusted to these arrangements and that she observes the father/son bond strengthening. Notwithstanding their communication difficulties, the parties are seemingly highly reliant on each other and they most likely need each other’s support to fully care for [X].
·Together the parties are meeting [X]’s physical, emotional, educational and medical needs and he is a loved and treasured child in both households. There is a remarkable level of agreement in the perceptions the parties have of [X]’s strengths and vulnerabilities and they are able to acknowledge the positive contribution each makes to [X]’s life.
·For [X]’s development to continue unproblematically, it is imperative that he is not exposed to conflict or become involved in issues related to the parental dispute. As iterated in the previous report, exposure of children to adult conflict potentially compromises their cognitive and psychosocial development.
·If the parties choose to live in Town B and Sydney beyond that point however, it is unlikely that the shared care arrangements [X] has enjoyed will be sustainable. The reduction in the time he spends with one of his parents will signify a considerable loss in the social capital he derives from their involvement which has occurred thus far in his life. In that event, [X] will practically only be able to spend weekends with the spend time with parent.
·While parents cannot be expected to change their living locations to where their children live, Mr Tomkins may wish to revisit his past intentions to live in close proximity to where Ms Faulkes lives particularly if it is a location which is affordable for her and she is socially supported. While it is appreciated that Mr Tomkins’ base and supports are in Sydney, he seems to currently have a lifestyle, commitments and financial support from his family that enable him to have greater options for flexibility.
Lastly, Dr L provides the following updated recommendations in paragraphs 42 to 46 of the first Family Report:
42. It is recommended that the parties work on improving their communication so they can assume joint parental responsibility. Once the matter is finalized, they may wish to consider the option of therapy with a therapist who specializes in family law to help them work towards this end.
43. It is recommended that the current living arrangements for [X] continue until 2019.
44. Once [X] commences school, it is recommended that the living arrangements be contingent on where the parties live. If the parties live in close proximity to each other, it is recommended that [X] live with his mother for eight days per fortnight and his father for at least six days per fortnight. It would be recommended that time [X] spends with each parent be contingent on the work schedules and availability of each parent.
45. If the parties continue to live in Town B and Sydney respectively, it is recommended that [X] lives with his mother. It would be recommended that he spends time with his father for at least two weekends in every three, once per week after school and on special occasions. The Court might also wish to consider the option of [X] spending more time during school holidays with his father.
46. It is recommended that the parties consider engaging with a family therapist who specializes in family law
Oral evidence
Dr L gave evidence on the third day of the final hearing and was cross-examined by the parties’ respective counsel. Dr L was provided with a copy of the amended Proposed Minutes of Order prior to her cross-examination. Dr L was confident in her delivery and clear in her revised recommendations and in responding to the parties’ revised proposals.
Dr L was ultimately unable to recommend which parent the child should live with on the basis that shared parenting worked well to some extent. Dr L identified no risks between the parties and that the parties have worked hard to shield the child from the risks attached to litigation.[9] She also acknowledged that the child has thrived by having a lot of time with both parents.[10]
[9] Transcript, 12 December 2018 p 154[2].
[10] Transcript, 12 December 2018 p 154[4].
(m) any other fact or circumstance that the court thinks is relevant.
[54] Transcript, 12 December 2018, page 62.
I note Dr L has recommended that the parties are suited for family therapy. She believes this will improve the parties’ communication which will minimise exposing [X] to any conflict or become involved in issues related to the parental dispute.
Otherwise, I reiterate the comments above and note there are no other facts or circumstances that are relevant that have not already been considered in this decision.
Conclusion and Findings
The Court agrees that this is a ‘finely balanced’ case. There are no risk issues for the Court to consider. Both parties have contributed to facilitating the child having a meaningful relationship with the other parent. Although Dr L assisted the parties and the Court with her evaluations, she was ultimately unable to provide the Court with a recommendation as to which parent [X] should primarily live with. Consequently, it falls upon the Court to make this very difficult decision.
Having regard to the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and finds as follows.
Parental responsibility
As stated, the parties are in agreement that both parties should have equal shared parental responsibility. This Order made on 6 December 2017 has not been discharged by the Full Court.
Residence
Ultimately, it would be in the child’s best interests for the parties to live in the same location and have a shared-care arrangement for [X]. Unless the parties otherwise agree to reside in the same location, the Court must decide whether [X] should primarily live with the mother or the father as it would not be reasonably practicable for the child to spend equal time with each party once he commences school this year.
The Court is satisfied and finds that it is in [X]’s best interests to live primarily with the mother in Town B and spend substantial and significant time with the father.
The Court accepts that the father’s work arrangements are more flexible than the mother’s work arrangements, taking into account his business and the income received from investments. I note the father will in all likelihood continue to have the financial support of his mother.
The Court also accepts that the mother’s work arrangements may not be as flexible when compared to that of the father. However, the evidence suggests that the mother’s work arrangements are flexible enough for the mother to attend to the child’s needs, particularly with day-to-day care such as dropping and collecting the child to and from school, and attending to the child in the event of an emergency. Her work hours are 9:15am to 2:45pm with a flexible work arrangement having commenced on 28 January 2019.[55] The mother also proposes that any requirement to work additional hours will be done while [X] is in the father’s care, which mitigates against the father’s concerns about the pressure for the mother to work.
[55] The mother’s Affidavit sworn and filed 2 October 2018, Annexure B.
As the father’s work arrangements are more flexible, the Court is persuaded by the mother’s argument that the father has the capacity to travel to [X] and be involved in [X]’s care. Those same flexible arrangements would enable, for example, the father to spend additional time with [X] such as one afternoon/evening mid-week. The Court notes that this capacity was the subject of comment by Dr L under cross-examination.[56] This option is balanced against the mother’s capacity to be involved with [X]’s care should the child live with the father in Sydney. It is less practicable for the mother to travel to Sydney to care for [X] than it would be for the father to travel to Town B to do the same. In addition, the Court notes that the mother’s capacity to travel is restricted by her current need to use public transport. While the mother has a provisional drivers licence, she expressed concerns about her lack of experience as a driver and she currently has no access to a motor vehicle.[57]
[56] Transcript, 12 December 2018, page 179.
[57] Transcript, 12 December 2018, page 86.
Based on the available evidence, the Court is unable to accept the father’s argument that there is suitable employment now available in Sydney for the mother. I note the advertisements canvassed during the mother’s cross-examination do not meet the mother’s qualifications and the Court accepts her argument that the flexible arrangements she now has with her employer in Town B will not automatically be available in any potential employment in Sydney.
For these reasons, the Court will make orders for the child to live with the mother commencing Monday 25 February 2019. If applicable, the father is to cause [X] to be available for to be in the mother’s care prior to this date. The spend time arrangements are discussed below.
Spend time arrangements
The Court is satisfied and finds in favour of the mother’s proposal for [X] to spend substantial and significant time with the father. While the parties had mirror proposals for time to be spend during school terms, the mother’s proposal provides for [X] to spend more time with the father during the school holiday periods.
Accordingly, there will be orders for [X] to spend time with the father every two out of the three weekends during school terms. Failing agreement time will commence from after school (or 3:00pm on a non-school day) on Friday until 5:00pm on Sunday on the relevant weekends. That time can be extended to holiday Mondays when applicable. In addition, in the event the father nominates to spend the relevant Sunday/public-holiday-Monday evening in Town B, the conclusion of time can be extended to before school the following day.
The Court is also satisfied that [X] should where possible spend an additional day mid-week during school terms with the father should he be available and willing to travel to Town B for this time. In that event, time can occur as agreed and failing agreement, each Wednesday from after school (or 3:00pm on a non-school day) until 6:30pm. This time will be conditional upon the father providing the mother with written notification of his intention for that time to occur by 5:00pm on the Sunday prior to the relevant time. In the absence of written notification, the mid-week time will be forfeited for that week.
During the school term holidays in 2019, [X] is to spend time with the father commencing on the last day of school term until the midpoint of the relevant school term holidays. Commencing in 2020 and each year thereafter, this school term holiday time can be extended to the first 10 days of the relevant period.
During the long summer school holiday periods, the child will initially spend alternate weeks with each party and that will transition over the next three long summer school holiday periods to an equal block time arrangement as follows:
·During 2019/2020, on a week about basis with the father the first week and with the mother in the second week. I note this will enable the child to spend Christmas and Boxing Day with the father and New Year period with the mother.
·During 2020/2021, [X] will essentially spend half the holidays with each party and arranged in a way that [X] will spend Christmas and Boxing Day with the Mother and New Years with the father. The time during this period would be increased from the time spend during 2019/2020.
·Commencing 2021/2022 and each alternate year thereafter (that is each odd year), with the father for the first half of the relevant period and with the mother in the second half of relevant period.
·Commencing 2022/2023 and each alternate year thereafter (that is, each even year), with the mother in the first half of the relevant period and with the father in the second half of the relevant period.
The equal block time arrangement will provide the parties with the opportunity to travel domestically, and internationally with [X]. International travel remains subject to paragraph 5 of the Final Orders made by Judge Henderson on 6 December 2017.
I also note the parties had previously agreed to arrangements for the Christmas period. The Court finds that these Orders should be discharged because it is satisfied that numerous changeovers are not in the child’s best interest given the distance between the parties’ respective residences. Of course, the final orders are and will be subject to any contrary agreement between the parties.
Further, there will be alternate orders in the event either party chooses to reside in the other party’s location. In this event, an equal time arrangement will be in place. Given that neither party provided submissions as to the relevance of an equal time arrangement commencing on a Monday or a Wednesday, failing agreement, the orders will provide for the time to commence and conclude on a Mondays. Changeovers on Mondays would best facilitate either party moving to the other location by the previous weekend. For abundant clarify, the orders for School Term holidays will be suspended and the equal time arrangement will continue through the school term holidays (but not the long summer school holidays).
School
Given the above outcome, the Court is satisfied and finds it is appropriate for the child to attend School 1 Public School in Town B, being the school within the proximity of the mother’s residence.
Should the mother relocate to Sydney, the parties will need to do all acts and things to enrol and cause the child to attend School 2 Public School.
Restraints
Having considered this issue in the context of the broader resolution of this dispute, the Court only considers it necessary to impose a restraint on the parties relocating their residence to a location other than Town B or Sydney. The Court does not consider it necessary to impose a restraint anchoring a party to a particular distance within [X]’s school as orders will be for [X] to be enrolled in and attend School 1 Public School in Town B (or School 2 Public School in Sydney if the mother relocates her residence to Sydney). The Court assumes that in the event of the party relocating to the other party’s city that party would move to an area that would be appropriate for conveying [X] to and from his school.
Changeover
As previously stated, the parties will require orders for changeovers. In light of the above, and subject to any agreement to the contrary, changeovers not occurring at school, will occur at the mother’s residence at the commencement of all times and at occur at Suburb C train station at the conclusion of all times. In the event the father chooses to spend the time in Town B, the time will be extended to the commencement of school the next day which will require the father dropping the child off to school (subject to the notice requirement).
In the event either party seek to relocate within the vicinity of the other party’s location, changeover will occur at the child’s school or otherwise at the parties’ respective residences in Sydney or Town B.
Family Therapy
In relation to the recommendation of Dr L that the parties will benefit from family therapy, I note that the father through Mr Duane was agreeable for an order to be made,[58] and that the mother through Mr Bolger did not provide any submissions in this regard. Upon reflection, it was not entirely clear to the Court whether this recommendation was made on the assumption that the parties remain living in separate cities. Given these circumstances, no direction will be made for the parties to engage in such a process unless otherwise agreed. That said, the Court will make a notation in the Final Orders reminding the parties about this recommendation and they are encouraged to do so if the parties jointly agree that it is appropriate.
[58] Transcript, 12 December 2018, page 197.
There will be Orders and Notations of the Court to reflect this decision.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 22 February 2019
Corrections
In Order 5(c), the years “2021/2022” is deleted and replaced with “2022/2023” and the word “even” is deleted and replaced with “odd.”
In Order 5(d), the years “2023/2022” is deleted and replaced with “2022/2023” and the word “odd” is deleted and replaced with “even.”
Notation D in the Orders is inserted to read “Paragraph 5(c) and (d) of these Orders has been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.”
[11] Transcript, 12 December 2018 p 154[6].
[12] Transcript, 12 December 2018 p 155 [2].
[13] Transcript, 12 December 2018, p 157.
[14] Ibid.
[18] Transcript, 12 December 2018, p 175.
[45] Transcript, 12 December 2018, pages 200-1.
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