W and C
[2015] FCWA 23
•17 FEBRUARY 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: W and C [2015] FCWA 23
CORAM: DUNCANSON J
HEARD: 11 & 12 FEBRUARY 2015
DELIVERED : 17 FEBRUARY 2015
FILE NO/S: PTW 5476 of 2008
BETWEEN: MR W
Applicant Father
AND
MS C
Respondent Mother
Catchwords:
CHILDREN'S ISSUES - order for sole parental responsibility - spend time with arrangements in favour of applicant who is not the legal father but the genetic or biological parent of the child
Legislation:
Family Court Act 1997 (WA), s 66A, s 66C, s 70A, s 85, s 88
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Mr Bannerman
Solicitors:
Applicant: Self Represented Litigant
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
Valentine & Lacerra and Anor (2013) FLC 93-539
W & C [2009] FCWA 61
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern the child, [PTC], born [in] 2008. PTC is six years of age.
2PTC’s mother, [Ms C], and PTC’s biological parent, [Mr W], are unable to agree as to parenting orders in relation to the child.
3The matter was set down for trial but, prior to the commencement of evidence, the parties negotiated extensively and reached agreement, in the following terms:
1The Child [PTC] (“The child”) born [in] 2008 live with the Respondent.
2The Respondent have sole parental responsibility in respect of the child and within a reasonable time prior to making any decision in relation to the child concerning a major long-term issue (as that expression is defined in s 7A of the Family Court Act 1997), the Respondent shall:
(a)Give written notice to the Applicant of any proposed decision;
(b)Take into account any communication from the Applicant in response to such notice;
(c)Make such decision as the Respondent honestly and reasonably believes will promote the best interests of the child; and
(d)Promptly inform the Applicant of her ultimate decision.
3The child spend time with the Applicant each alternate weekend commencing on the second weekend after the first term commences in each year as follows:
(a)In 2015 from 5pm Friday until commencement of school Monday; and
(b)From term 4 2015 and thereafter from 5pm Thursday until commencement of school Monday.
4For the purposes of term holidays the time in paragraph 3 be suspended in each April term school holidays and in the July and October holidays the time be extended to commence at 5pm on the Friday of the Applicant’s weekends and conclude at 5pm on the Tuesday.
5For the purposes of the Christmas school holidays the Applicant’s time in terms of paragraph 3 hereof be suspended and the child spend time with the Applicant from 5pm on Friday immediately following the completion of the school year and conclude at 5pm on the fifth day thereafter and the child spend time with the Applicant from 5pm on the second last weekend of the Christmas school holiday period and conclude at 5pm on the fifth day thereafter.
4Orders were made by consent on 11 February 2015.
5I was informed that a number of ancillary matters remained outstanding and the parties would continue their negotiations the following day.
6On 12 February 2015, the Applicant informed me that he had reconsidered his position. He was unhappy with the orders pronounced the day before largely because:
•there was a lengthy period in both January and in the holidays at the end of the first term when the child would not spend time with him, and he sought a weekend during that period to break up the length of time; and
•it was his understanding that orders were yet to be made about Christmas and the Minute of Consent Orders, although finalising holiday arrangements, did not include time at Christmas.
7Counsel for the Respondent opposed any changes to the orders for time during the holiday period, informing me that the parties’ negotiations were such that these orders represented the parties’ final position as to school holidays and that issue was, therefore, closed.
8For reasons which I gave to the parties at the time, I ruled that the agreement reached between them regarding school holidays should stand. In coming to this conclusion, I took into account that both parties had compromised extensively to get to that position and, in those circumstances, it would not be appropriate for me to re-open the issue. However, I took the view that orders should be made regarding time at Christmas. It was the Applicant’s understanding that this was one of the ancillary issues to be determined, and I agreed that it was a separate issue. In any event, I took the view it was in the best interests of the child to consider arrangements for him to spend time with the Applicant at Christmas.
9An issue also arose regarding Easter, but it seems an acceptable compromise was reached in this respect.
10The issues in dispute can be summarised as follows:
1the provision of school information;
2whether the Applicant should be able to take the child to a general practitioner for medical treatment;
3whether the Applicant should obtain a copy of the child’s birth certificate and attempt to alter it, and whether he should be able to sign any document suggesting he is the child’s father, parent or guardian;
4whether the child should spend time with the Applicant on the child’s birthday;
5the arrangements for the child to spend time with the parties at Christmas;
6whether the child should spend time with the Applicant on Father’s Day;
7whether the child should spend time with the Applicant on the Applicant’s birthday;
8the time the child should spend with the parties at Easter, when Easter does not fall in the holidays at the end of term one; and
9whether the Applicant should be able to remove the child from the Commonwealth of Australia for the purpose of a holiday and, if so, whether the child should spend seven nights with him for that purpose.
BACKGROUND
11The background to this matter is clearly set out in the judgment of her Honour Justice Crisford in W & C [2009] FCWA 61. At that time, her Honour was asked to deal with an application for parenting orders brought by the Applicant. Those orders were opposed by the Respondent.
12Her Honour comprehensively considered the legal position in the circumstances of these parties. Her Honour found that the Applicant was not the legal father, but rather the genetic or biological parent.
13Her Honour referred to provisions of the Family Court Act 1997 (WA) (“the Act”), specifically, s 88 and s 85, which deal with who may apply for a parenting order and persons in favour of whom parenting orders may be made. I am asked to make parenting orders in favour of the parties today.
THE LAW
14These proceedings are determined under Part 5 of the Act.
15In deciding whether to make a particular parenting order, s 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in the child’s best interests. I must consider the matters set out in s 66C(2) and s 66C(3), being the primary considerations and the additional considerations respectively.
16Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child. The presumption does not apply here. The parties have agreed that the Respondent will have sole parental responsibility for the child. That order was made by consent on a final basis. I am satisfied it is an order which is in the best interests of the child. The parties do not enjoy the kind of relationship which would enable them to comply with the requirements for an order for equal shared parental responsibility, namely, to consult and jointly reach a decision on any issue.
17I now turn to consider the matters set out in s 66C. As pointed out by Crisford J in her judgment, many of those matters apply only to parents. I shall follow the approach taken by her Honour, namely, to consider every relevant consideration whether or not it refers to a parent or other person, rather than dealing with them separately in s 66C(3)(m).
Primary Considerations
the benefit to the child of having a meaningful relationship with both of the child’s parents
18I am satisfied that the child has a meaningful relationship with both the Applicant and the Respondent and it is to his benefit that it continues.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
19There is not a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Additional Considerations
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
20The Applicant says the child enjoys the time he spends with him and his partner. The Respondent says that, at times, the child has said he does not wish to go to the Applicant’s home. By way of independent evidence in this respect, Dr Phil Watts, the Single Expert Witness, interviewed the child as recently as 5 February 2015, and reported at paragraph 19 as follows:
I asked about his visits to [Mr W] and he spoke about how “going on weekends is fun”. He spoke a lot about playing a particular playstation game. The general tone was he enjoyed the visits. He said that he happily slept there. I asked him how long he goes for and he spoke about staying for two nights. I asked whether he would like more nights or less nights or whether it was find as it was. He then spoke about “when I grow up I get to have more sleeps. The older I get so mum lets me have more sleeps”. When I asked about how he knew this he said “it’s what I worked out”. He was quite happy with the two nights. He expected it to increase.
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)
21The child has a close and loving relationship with the Respondent. She has been his primary carer since birth.
22I consider the child also has a close and loving relationship with the Applicant, with whom he has spent time since his birth.
23Dr Watts reports that despite the intensity of the problems between the parties, the child is enjoying a good relationship with the Applicant.
24The child also enjoys a good relationship with the Applicant’s partner [Mr T] and the Respondent’s partner [Ms H].
the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
25I consider the Applicant is willing and able to facilitate and encourage a close and continuing relationship between the child and the Respondent, but I am not satisfied that the Respondent does likewise. The Respondent’s position is plain from the orders sought by her, which are to restrict the child’s time with the Applicant. In evidence she made it clear she did not wish the Applicant to attend the school at all, to be involved in medical issues or to attend any extracurricular activities that she attended. She said she did not see the Applicant as a father and indeed nothing she said indicated she would promote the child’s relationship with the Applicant. I consider she will comply with Court orders but no more.
26Dr Watts reported at paragraph 22:
[Ms C] clearly does not like the concept of [PTC] having a father and does not consider [Mr W] to be a father and has made that clear to [PTC]. [PTC], as children are apt to do, is creating his own reality.
27In his earlier report dated 30 January 2014 Dr Watts reported at paragraph 42 as follows:
…there is nothing in her presentation or attitude which is suggestive that she would promote a relationship. The only consolation is that she does not appear to be derogatory or undermining with [PTC] himself corrective. By this I mean she is not putting down [Mr W] or [Mr T], but educating [PTC] as to her view of how his life is (e.g. telling him that [Mr W’s] family is not family). The fortunate aspect of this is that it prevents the mother from damaging [PTC] by her views.
28Little has changed since then.
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
29The Applicant has been sensitive in his approach to seeking further time with the child. The final orders agreed by the parties are that the time will increase from two nights at weekends to three nights, until the last term of 2015, and then the child will spend time with the Applicant from Thursday to Monday in each fortnight. There is no suggestion of any difficulty in the child separating from either the Applicant or the Respondent, and the gradual changes during term time and during the school holidays are likely to have a positive effect upon the child.
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
30There is no practical difficulty and expense.
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
31The Applicant is capable of providing for the needs of the child, including his emotional and intellectual needs. He explains how he gently reasons with the child when necessary. With respect to discipline, he uses a reward system of TV and iPad time. Similarly, I consider the Respondent is capable of providing for the child’s needs on all levels. I was concerned about the extremely high level of anxiety which was apparent in the Respondent when she gave evidence. I asked her if the child was aware of her anxiety and if he saw her crying at home. She readily assured me he did not. I accept her evidence in this respect, that she shields the child from her anxiety and distress.
32The Applicant says the child calls him “dad” when he visits and he encourages that. The Respondent does not accept the Applicant is the child’s dad, and does not refer to him as such in her home. On Father’s Day the child made a gift for the Respondent’s father, “his pop”. Although there was no evidence as to any confusion on the part of the child, there is potential for that in the future. In this respect, Dr Watts, reported at paragraph 20 of his report of 5 February 2015, as follows:
I asked [PTC] what he calls [Mr W] and [PTC] said “at Mr W’s house I sometimes call him dad because he is my dad”. [PTC] then spontaneously added in “mum doesn’t like it if I call him dad. She doesn’t like me talking about him”.
33Dr Watts concluded at paragraphs 21 and 23, as follows:
Despite the intensity of the problems which are between [Ms C] and [Mr W], [PTC] is enjoying a good relationship with [Mr W]. He likes going on the visits and is not showing any particular problems or distress.
I would further add that as [PTC] gets older his general social awareness is going to increase as he becomes more aware of the relationships around him.
34It is apparent that the child is doing well at school.
35His Form teacher reported as follows:
[PTC] has been an energetic, confident and supportive member of Room 4. He works cooperatively within group and whole class activities. He uses the habit think win-win when working in small groups and can be trusted to support other classmates who are in need of assistance. [PTC] is proactive within his work and completes all activities with confidence. Sometimes he produces less than what is expected; however he will complete more if asked. He is consistently involved in whole class discussions and always surprises everyone with his wealth of knowledge and amazing explanations. [PTC] loves to share his own idea and can be relied upon to have an answer. He is confident in sharing his news and does not need the guidance of his book. He speaks using full sentences and keeps the audiences interest throughout his news. [PTC] will need to make sure that next year he shows what he is capable of in all pieces of work. He has been a delight to have in Room 4 and I’m sure he will keep surprising other teachers with his depth of general knowledge.
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
36The Applicant is in a relationship with his long-term partner Mr T. The Respondent is in a relationship with her partner Ms H.
37In his report of 20 March 2010, Dr Watts described the gay/lesbian dynamic in this case to be of high relevance. At paragraph 16 he stated:
There is, however, an aspect of the gay/lesbian dynamic which is of high relevance to this case and I would describe that as ‘cultural’ or perhaps ‘sub-cultural’ dynamics. In my opinion this is one of the stumbling blocks to the whole resolution of this case. I can best explain it in a comment [Ms C] made when we were discussing the issue of the child calling [Mr W] “Daddy’. She spoke about how she could be at a lesbian mothers’ group in the future and [PTC] make a comment about something happening at “Daddy’s house on the weekend”. She said that she would then have some of the other women comment “You’re not one of THOSE lesbians are you”. Therefore there is a central core where the Family Court is being used as a battle ground for issues related to gender identity, particularly for [Ms C]. In talking to [Mr T] and [Ms H], while they are in a homosexual relationship, neither saw it as a key component of their identity. They mix with heterosexual and homosexual friends and said they are unlikely to introduce themselves as homosexuals as a first line of introduction.
38In his most recent report, Dr Watts said the dynamic had not changed.
39At this stage, the dynamic does not appear to be having any effect upon the child, who is of course still young. Dr Watts pointed out that as the child gets older his general social awareness is going to increase, as he becomes more aware of the relationships around him.
40It will be important for the parties to deal with this issue carefully and sensitively, to minimise any adverse impact upon the child. It will become extremely important for the parties to ensure the child is not exposed to either direct conflict or conflict in relation to his identity. Dr Watts reported in his January 2014 report, at paragraph 47, as follows:
As explained in my previous report, in my opinion [PTC] should have the opportunity to know both sides of his biological history and background. I am also of the view that [PTC] would end up being a more rounded and balanced person if he is able to have reasonable time with both [Mr W] and [Ms C]. I say this because he needs to be able to develop a male identity and needs effective male role models.
41I place weight on the opinion of Dr Watts.
the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
42Both parties love the child and demonstrate an appropriate attitude to both the child and the responsibilities of parenthood.
43The Respondent is devoted to the child. Notwithstanding her strong negative views about the Applicant’s involvement in the child’s life, the child enjoys a good relationship with the Applicant and shows no difficulties or distress.
44The Applicant is determined to be a father to the child and provide for him as fathers should. He impressed me as having the child’s best interests at heart in this respect.
45The Applicant’s financial support of the child is limited to $200 per week.
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;
46The orders I make will finalise these proceedings. That is of importance to both parties, but particularly the Respondent. These proceedings have had a severe impact upon her mental health and, although that has not affected the child as yet, it could do so in the future.
any other fact or circumstance that the court thinks is relevant
47A very important factor in these proceedings is the Respondent’s anxiety and distress. She was emotional throughout the Court proceedings. At one point she broke down, sobbing uncontrollably, and the Court had to be adjourned to enable her to compose herself. She said she had previously been receiving counselling to assist her with her emotional difficulties, but could no longer afford to pay for counselling as she was paying for legal costs in relation to these proceedings.
48The Respondent is a good mother but is not coping with the difficulties the child’s relationship with the Applicant creates for her. It is to be hoped that, once the Court proceedings are concluded and the parties have some certainty with the orders, this will improve. Furthermore, on-going counselling would appear to be imperative.
49The Applicant showed considerable sensitivity when he declined to cross-examine the Respondent, to avoid her any further distress. For him, the Respondent’s non-compliance with orders is frustrating. In the past this has led him to be assertive towards the Respondent, which causes her additional distress.
50The compliance of both parties with these orders is imperative to minimise future conflict.
DISCUSSION AND CONCLUSION
51It is necessary to determine the applications of the Applicant and the Respondent with the best interests of the child as the paramount consideration.
52There is no presumption or preferential position that applies between a parent and a non-parent. In Valentine & Lacerra and Anor (2013) FLC 93-539 the Full Court said at 43:
43. The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
School Information
53The Applicant seeks to liaise and discuss the child’s progress with educational professionals, to receive directly school reports and circulars and to attend and participate in functions organised by the school, together with sporting and social events. The Respondent proposes to provide the Applicant with a copy of a school report and school photo that she receives from the school from time to time.
54It is clear, therefore, the Applicant seeks a far greater involvement than the Respondent is prepared to offer.
55I consider it to be in the best interests of the child to make an order enabling the Applicant to be involved in the child’s schooling. The child will be spending time with the Applicant on school days as well as weekends. It is likely to be confusing for the child if the Applicant is not involved in his education and, for example, is not able to attend school functions which are attended by parents or other relatives of his peers. Furthermore, if the Applicant is to assist the child with his school requirements and homework, he needs to be involved. I shall, therefore, make an order in terms similar to that sought by the Applicant.
56As to the child’s extracurricular activities, both parties demonstrated they were child focussed when they agreed that, in the event that the other enrolled the child in a sport which required his attendance when in the care of the other, each would ensure he was taken to that sport during his time with each of them, although they would not attend together.
57In relation to extracurricular activities, the Applicant undertook not to enrol the child in any contact sport without the consent of the Respondent.
Medical issues
58The Applicant seeks to be involved in any medical treatment provided to the child. He wishes to liaise and discuss the child’s progress with health care professionals and to receive directly from them any medical reports relating to the child, and to be able to visit the child in hospital, in the event he is hospitalised.
59The Respondent seeks an injunction restraining the Applicant from taking the child to any medical practitioner, except in an emergency, and then only after contacting her.
60The Respondent clearly considers the child’s medical issues are best dealt with by herself.
61I consider it to be in the child’s best interests to make orders in terms similar to those sought by the Applicant. In the event the child becomes ill when staying with the Applicant, the Applicant ought to be able to promptly obtain medical assistance for the child. He ought to be able to use his discretion as to whether medical assistance is required and, as the child is in his care, he is best placed to describe to any medical practitioner the circumstances of the illness. Any delay in obtaining medical treatment for the child is potentially harmful and this is a responsibility which the parent with care ought to have, to ensure the child is appropriately treated at any time.
62The Respondent has sole parental responsibility, although she must keep the Applicant informed of any decisions made with respect to long-term issues. In these circumstances, it is important that the Applicant is able to ascertain information concerning the child’s medical health from treating practitioners, and that reduces the need for the parties to communicate directly. It is important for the Applicant to have knowledge of the child’s general health, to enable him to provide appropriate care for him.
The birth certificate and signing of documents
63The Respondent seeks orders that the Applicant not alter the child’s birth certificate, or obtain a copy thereof, or sign any document declaring or suggesting he is the child’s father, parent or guardian.
64The Applicant undertook not to alter the child’s birth certificate. He required a copy of the birth certificate in case it was necessary to provide proof of the child’s identity to any third party. He was clearly curious about the certificate. The Respondent stated that she was named as Parent 1 on the birth certificate, but Parent 2 was left blank. The Applicant believed the Respondent’s former partner’s name had been inserted under Parent 2.
65The Respondent undertook to provide a copy of the birth certificate to the Court, and the Applicant was satisfied that the Court should inspect the certificate to confirm the accuracy of the Respondent’s evidence.
66I do not consider it in the best interests of the child to make the order sought by the Respondent. When the child is in the Applicant’s care it may be necessary for him to inform third parties of his role in the child’s life. If the child brings home a permission slip from school while the child is in his care, it will be necessary for the Applicant to sign it appropriately, depending on the wording of the document. The order sought by the Respondent is unduly restrictive, unnecessary and has the potential for confusion and difficulty in the future.
The child’s birthday
67In terms of the final orders agreed by the parties, the child’s next three birthdays occur when he is spending time with the Applicant. The Respondent seeks an order suspending the Applicant’s time on the weekend of the child’s birthday, that the child be with her on the entire day of his birthday and he spend time with the Applicant on the weekend immediately following. The Applicant proposes the child should remain with him in accordance with the orders, and spend time with the parent with whom he is not living on his birthday for a period of three hours.
68I consider it to be in the best interests of the child to spend time with both parties on his birthday. This is likely to be an outcome which the child will enjoy. If the birthday falls on a weekend day, the child’s time can be shared with both parties, and he can spend three hours with the person with whom he is not living on that day, unless that day is a handover day. In the event the birthday falls on a school day, the child will spend three hours, from the conclusion of school, with the party with whom he is not living, unless that day is a handover day.
69I considered an outcome where the child spends alternate birthdays with each party, but the Respondent’s strength of feeling about this issue was clear, and she would find it difficult to cope with the child spending no time at all with her on his birthday. This could impact on the child and, therefore, the outcome I intend to order is one which I consider to be best for the child and have least impact upon him.
Christmas
70I consider it to be in the best interests of the child to spend time with both parties at Christmas. This is usually an enjoyable time involving presents and seeing friends and family. He should benefit from this in both homes. There seemed to be general agreement that the child should spend time with one party from noon Christmas Eve to 2.00pm Christmas Day, and then from 2.00pm Christmas Day to 4.00pm Boxing Day with the other party. This arrangement will alternate in future years. The Respondent will have liberty to suspend this arrangement in the event she intends to take the child overseas at the Christmas period, and her liberty to do so should not occur more than once in every three years.
71The Applicant complained that he had not spent Christmas with the child, because the Respondent exercised a liberty to suspend time every Christmas.
Father’s Day
72The Applicant wishes the child to spend time with him on Father’s Day. The Respondent is opposed to the child spending time with the Applicant on Father’s Day, unless the child’s time falls on that day in accordance with the orders. On the other hand, the Respondent seeks to have the child with her on Mother’s Day.
73I consider it to be in the child’s best interests to spend time with the Applicant on Father’s Day, and with the Respondent on Mother’s Day. This is an outcome which the child is likely to enjoy. Events such as Mother’s Day and Father’s Day usually receive some attention at school, and it may be confusing for the child if the outcome was any different. An order which would be in the best interests of the child is one which provides that, in the event that Mother’s or Father’s Day falls on a weekend when the child is not living with that party, then the other party’s time be suspended from 5.00pm on the Saturday before the Mother’s Day or Father’s Day, until the commencement of school the following week. This enables the child to wake up in the home of either Respondent or Applicant on Mother’s or Father’s Day, and spend the entire day and evening with that parent.
Parent’s birthday
74The Applicant seeks an order that the child spend time with him on his birthday. The Respondent’s position is that there should be no special arrangements for the parties’ birthdays.
75I consider it to be in the child’s best interests to spend time with the party with whom he is not living on the occasion of that party’s birthday. He is likely to enjoy a celebration with family on that occasion. The Respondent’s baby is due to be born in July. I consider it appropriate that the child also spend time with the Respondent on the occasion of that child’s birthday, to participate in any family celebration.
Easter
76The existing orders made by consent provide that the Applicant will spend no time with the child during the holidays at the end of term one. Usually these holidays incorporate Easter. The parties agreed, where Easter does not fall in the school holidays, they will share the Easter long weekend. The child will spend time with them from the evening of Thursday to the evening of Easter Saturday, or the evening of Easter Saturday to the evening of Easter Monday, alternating in each year.
Travel
77It appears the parties agree they will be able to take the child interstate during his time with each of them, and notice will be given. During the course of discussions about this the issue of overseas travel arose. The Applicant had not sought an order to remove the child from the Commonwealth of Australia. The very prospect of this caused the Respondent significant distress. On the other hand, the Respondent foreshadows the likelihood she would take the child to the UK during the Christmas holidays, to visit her partner’s family. I gave very careful consideration to this issue. Ultimately, I concluded that, at this stage, the child should not be taken overseas by the Applicant, partly because he is still young, and partly because the level of the Respondent’s distress is such that it could impact upon the child. That is not to say that the Applicant will not be able to do so in the future. I propose to give him liberty to apply in this respect after the child has attained the age of ten years. There are many opportunities to enjoy travel with the child within Australia before that time.
Make up time
78The child’s time with the Applicant is limited. The Applicant complains that the Respondent has restricted his time and not complied with orders. It is clear the child enjoys his time with the Applicant. In these circumstances, I consider an order that make up time be given to be appropriate.
79After hearing from the Applicant and counsel for the Respondent, the orders I made were as follows:
1All previous parenting orders be discharged except for orders in terms of the Minute of Consent Orders made on 11 February 2015.
School Holidays
2The time the child [PTC] born [in] 2008, spend with the Applicant, [MR W] during the Christmas school holiday period, pursuant to paragraph 5 of the orders dated 11 February 2015, being the first period of five nights shall commence at 5.00pm on the last Thursday of the school term.
3The child’s living and spend time arrangements pursuant to paragraphs 1 and 5 of the orders dated 11 February 2015 be suspended for the period from 24 to 26 December (inclusive) and the child spend time with the parties as follows:
a)with the Applicant from noon on 24 December 2015 until 2.00pm on Christmas Day 2015 and each alternate year thereafter;
b)with the Respondent from 2.00pm on Christmas Day 2015 until 4.00pm 26 December 2015 and each alternate year thereafter;
c)with the Respondent from noon 24 December 2016 until 2.00pm Christmas Day 2016 and each alternate year thereafter;
d)with the Applicant from 2.00pm Christmas Day 2016 until 4.00pm 26 December 2016 and each alternate year thereafter.
Father’s Day and Mother’s Day
4Where Father’s Day does not coincide with the time the child spends with the Applicant pursuant to orders dated 11 February 2015, the child shall spend time with the Applicant from 5.00pm the day prior to Father’s Day, until the commencement of school on the Monday following.
5Where Mother’s Day does not coincide with the time the child spends with the Respondent pursuant to orders dated 11 February 2015, the child shall spend time with the Respondent from 5.00pm the day prior to Mother’s Day until the commencement of school the following Monday.
Birthdays
6Should either party’s birthday fall on a day that is not a school day and when the child is in the care of the other party, the other party’s time with the child be suspended and the child shall spend time with the party whose birthday it is from 3.00pm to 6.00pm on the day of the birthday.
7Should either party’s birthday fall on a school day, and when the child is in the care of the other party, the other party’s time with the child be suspended and the child shall spend time with the party whose birthday it is for a period of three hours from 3.00pm to 6.00pm.
8The child shall spend time with the party with whom he is not living on the child’s birthday for a period of three hours from 3.30pm to 6.30pm, unless the day is a handover day.
9When Easter does not fall in the school holidays, the child shall spend time with the parties as follows:
a)with the Applicant from 5.00pm Easter Thursday until 5.00pm Easter Saturday in the first year and each alternate year thereafter;
b)with the Respondent from 5.00pm Easter Saturday to 5.00pm Easter Monday in the first year and each alternate year thereafter;
c)in the second year with the Respondent from 5.00pm Easter Thursday until 5.00pm Easter Saturday and each alternate year thereafter;
d)in the second year with the Applicant from 5.00pm Easter Saturday until 5.00pm Easter Monday and each alternate year thereafter.
Communication and exchange of information
10The parties shall keep each other informed at all times of their current residential addresses, contact telephone numbers (including landline and mobile telephone), and email addresses, and inform each other of any changes thereto, within 24 hours of such a change.
11Each party shall provide the other with notice of any significant medical issues concerning the child, including details of any treating practitioners, and these orders are authority for the treating practitioner to discuss the child’s medical issues with the other party.
12.The Applicant and the Respondent shall:
a)notify the other immediately in the event that the child is hospitalised, or suffers serious health problems whilst in their care;
b)keep the other informed of all doctors’ attendances and medications concerning the child whilst in their care;
c)promptly after receipt give to the other:
i)a copy of any school report, circular, or other significant document provided by the child’s school;
(ii)a copy of any circular, fixture or other significant document provided concerning the child’s extracurricular activities; and
(iii)details of any invitation to attend a birthday party or other special occasion or social event that will occur during a time when the child will be with the other party.
13In the event that the child suffers a medical emergency or significant medical issue while the child is in the care of the Applicant, he shall immediately return the child to the Respondent (where reasonably practicable).
Injunctions
14Without admission as to need, each party be restrained and an injunction granted restraining each of them from:
a)denigrating the other, their partners or their friends and family in the presence or hearing of the child;
b)discussing these proceedings with or in the presence or hearing of the child;
c)harassing the other party or unreasonably interfering with that party’s manner of living;
d)physically disciplining or permitting any other person to physically discipline the child.
15The Applicant be restrained and an injunction granted restraining him from changing the physical appearance of the child such as by way of haircut, piercings, tattoo or hair colouring.
Extracurricular activities
16Each party shall inform the other of any extracurricular activities in which the child is enrolled and where practicable, each party shall ensure the child attends that activity when the child is with each of them.
17Each party shall not attend the child’s extracurricular activity when that activity falls in the time the child spends with the other party.
18In the event the Applicant seeks to enrol the child in a contact sport, he shall first seek the consent of the Respondent.
19Each party shall ensure, so far as is practicable, that while the child is spending time with each of them the child attends extracurricular activities, sporting commitments and social events to which the child is invited.
Travel
20In the event that either party wishes to take the child more than 200 kilometres from the Perth CBD each party shall notify the other no less than 7 days in advance and provide contact details as to where the child will stay overnight.
21In the event either party wishes to take the child out of the state of Western Australia, they shall provide the other party with no less than 28 days written notice, which shall include details of the times and destination of each flight, and contact details of anywhere the child may spend overnight.
22The Respondent has liberty to suspend the time the child should spend with the Applicant at Christmas provided that:
a)she shall not seek to suspend that time more than once in a three year period;
b)the suspension shall be solely for the purpose of the Respondent travelling overseas with the child at that time; and
c)make up time shall be given to the Applicant within 28 days of the child’s return to Perth
23Both parties are at liberty to nominate an agent to collect or deliver the child at the commencement or conclusion of that party’s time with the child.
24The parties are at liberty to vary the terms of these orders provided such variations are agreed in writing.
25The Applicant have liberty to apply with respect to overseas travel with the child after the child’s tenth birthday, that is after [PTC’s birthday] 2018.
26.The Minute of Consent Orders handed up and filed in Court on 11 February 2015 at paragraph 4 be and is hereby amended to read as follows:
“4. For the purposes of term holidays the time in paragraph 3 be suspended in each April term school holiday. In the July and October holidays the time be extended to commence at 5pm on the Friday of the Applicant’s weekends and conclude at 5.00pm on the Tuesday.”
27The Application and Response be otherwise dismissed.
I certify that the preceding [79] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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