W and W

[2006] FCWA 103

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	W and W [2006] FCWA 103
CORAM:	THACKRAY J
HEARD:	7 & 9 JUNE 2006
DELIVERED:	6 OCTOBER 2006
FILE NO/S:	PT 5195 of 2002
BETWEEN:	W

Applicant/Father

AND

W

Respondent/Mother

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Catchwords:

Parental responsibility - presumption not applicable due to family violence - shared time - pedantic parent - orders made contrary to proposals of both parents.

Legislation:

Family Law Act 1975, Part VII, s 60CC
Family Law Amendment (Shared Parental Responsibility) Act 2006

Category: Not Reportable

Representation:

Counsel:

Applicant:	Self Represented Litigant
Respondent:	Mrs E Brownlie

Solicitors:

Applicant:

Respondent:  Paterson & Dowding

Case(s) referred to in judgment(s):

Nil
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1 [Mr and Mrs W] have had repeated disagreements concerning their children since proceedings were commenced in 2002. They have now asked the Court to deal with a remarkable miscellany of issues, including disputes about parental responsibility and the arrangement of their shared residence regime.

Brief background

2 [Mr W] is a 41-year-old [serviceman]. [Mrs W] is a 31-year-old part-time [enquiries officer].

3 [Mr W] and [Mrs W] commenced living together in 1993, were married in 2000 and separated in 2002.

4 They have two children, [H], who was born in January 1997, and [L], who was born in July 1998.

Applicable law

5 The trial was concluded prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Surprisingly, the substantive provisions of that Act apply to this case. The proceedings therefore fall for determination under Part VII of the Family Law Act 1975 in its amended form. In making my decision, I will be guided by the objects of that Part and the principles underlying them.

6 The objects of Part VII are to ensure that the best interests of children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
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(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

7 In deciding whether to make a particular order, the Court is directed to regard the best interests of the children as the paramount consideration. Accordingly, it is a consideration of [H] and [L]’s best interests that will be the final determinant.

8 Section 60CC sets out the matters I must take into account in determining what is in the boys’ best interests. Given the nature of the dispute, I consider it is unnecessary to discuss all of those matters in detail, but I have taken them into account in coming to my decision. In particular, I have considered the views the boys expressed to the Family Court counsellor. Given their age, and the nature of the dispute, I do not consider the children’s opinions to be of much significance, apart from their understandable concerns about the poor communication between their parents and their desire for the “atmosphere to be lighter or better”.

Orders made to date

9 There have been many orders concerning the boys since October 2002, when it was agreed they should reside with [Mrs W] and have reasonable contact with [Mr W]. Since August 2003, the parties have shared the care of the children. They generally reside with [Mr W] from 10.00 am Sunday to 5.00 pm Wednesday and with [Mrs W] the rest of the time. I do not propose to recite the balance of the orders made along the way – they are well-known to the parties.

Orders now sought

10 Both parties seek an order discharging all existing orders. This gives the Court a convenient opportunity to review all the current arrangements and to issue one order containing a comprehensive statement of the obligations of both parties.

11 [Mr W]’s list of proposed orders occupies 11 pages in his Papers for the Judge. I do not propose to repeat them here, especially as they include matters as earth-shattering as requiring each parent to use their best endeavours to encourage the boys to eat one piece of fruit a day and to eat vegetables daily.

12 The orders sought by [Mrs W] were contained in her Papers for the Judge. They ran to 9 pages. She would prefer fewer orders, but in

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case the Court decided to descend into the minutiae, she had her own
preferred version.

13 There are two main differences between the competing

proposals:

• decisions concerning the children’s welfare, whereas

[Mrs W] wants sole responsibility for making long-term jointly.

• [Mr W] seeks the continuation of the current shared care regime, whereas [Mrs W] wants to replace it with a week- and-week about arrangement.

General approach

14 I was not persuaded that [Mr W]’s somewhat dogmatic approach to child rearing was any better than [Mrs W]’s somewhat laidback approach. I find that both parents love the children and are capable of adequately providing for their needs without interference from the other parent. Accordingly, I will not be making any orders that impinge on the autonomy each parent should have in the management of the boys when they are with them. I therefore, for example, will not be making any orders instructing either parent how to ensure the children do their homework.

15 I also consider it to be most unsatisfactory to force parents to consult a 10-page Court order before making a decision in relation to mundane matters concerning their children. This is especially so where one of the parties is a pedant. [Mr W] readily admits that he sees Court orders in “black and white”. He has demonstrated that he will commence enforcement proceedings whenever there is a perceived breach of any of the orders. Some of the contravention proceedings he has initiated to date have been quite ludicrous – for example, the one concerning the birthday party.

16 My intention is to make as few orders as possible, albeit some matters must inevitably be spelled out in greater detail than normal. I also propose keeping the orders as simple as possible. In doing so, I propose exercising my discretion to make orders in a form different to those sought by either party.

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17	One of the difficulties often associated with cases involving a pedantic litigant is that the other side is sucked into playing the same nitpicking game. This is what has happened here, with [Mrs W]’s advisors deciding it was necessary to rely on 88 pages of affidavits (excluding annexures). The Court can also be sucked into wasting precious judicial time in giving reasons about countless matters of little or no importance to the children. I hope to avoid this trap by keeping my reasons as brief as possible.
18	My primary reasons for making the orders set out below are that I consider they are the orders most likely to:

• promote the children’s best interests;

• be more easily understood than the convoluted orders sought by both parties;

• lead to less disputes and minimise the possibility of contravention proceedings.

19 In coming to my decision, I have not overlooked any of the orders sought. If they have been omitted it is because I consider they either unnecessarily impinge on the autonomy of the parents; are trivial; are not needed; are incapable of enforcement and/or would unnecessarily clutter the orders. Even 11 pages of Court orders will not cover every conceivable circumstance – both parents will need to exercise some common sense and make their own arrangements, as other families do, if something unexpected crops up – for example family emergencies, hospitalisation etc.

Parental responsibility

20 [Mr W] proposes that both parents retain responsibility for the children’s long-term care, welfare and development and that each be solely responsible for the children’s day-to-day care, welfare and development when they are residing with them.

21 [Mrs W] wants sole responsibility for the children’s long-term care, welfare and development, “including but not limited to medical and dental arrangements and appointments, attending extra-curricular activities, swimming lessons and educational decisions and the like”. As a fetter on this authority, she is prepared to consent to an order preventing her from arranging any appointments or extra-curricular activities during [Mr W]’s time with the children, without his written consent. She is agreeable to each parent otherwise being solely

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responsible for day-to-day matters when the children are residing with
them.

22 The recent amendments to the Act introduced a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, one of which is where there are reasonable grounds to believe that a parent has engaged in family violence. It is common ground that [Mr W] has assaulted [Mrs W]. The presumption therefore does not apply.

23 The fact the presumption does not apply is by no means the end of the matter. Judges in this Court have long taken the view that it is generally appropriate for both parents to have an equal say in major decisions about their children. This is particularly true of cases where the parents have a shared-care arrangement. The fact there has been family violence is clearly an important factor in determining whether it is appropriate for the parents to share parental responsibility; however, the nature of the violence needs to be assessed to determine whether it should have any impact.

24 It is my assessment that the nature of the violence here was not such, in itself, as to have any real impact on the allocation of parental responsibility. However, I consider there are other reasons why it would not be in the best interests of the children for their parents to be left with shared parental responsibility.

25 I accept [Mrs W]’s reasons for wanting to be given responsibility for most important issues concerning the children’s welfare. Her main reasons are these:–

• The parties have an extremely poor relationship.

• They do not communicate other than by e-mail, which [Mr W] has used to abuse, annoy and denigrate her.

• [Mr W] is exceedingly controlling, argumentative and pedantic.

26 If I made orders as proposed by [Mr W], there would be no sharing of decision making. [Mr W] would simply be given an ongoing forum in which to denigrate and belittle [Mrs W]. [Mr W] treats the mother of his children with utter contempt and considers her opinions to be worthless. By way of only one of numerous examples, see [Mr W]’s email to [Mrs W]’s solicitors of 25 March 2006 in

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which he said “[H] is a bright young boy and he knows what is right and wrong and he see’s [Mrs W] as for what she is, lazy and a liar [sic] ”.

27 In making these negative findings concerning [Mr W], I do not wish to suggest he is anything other than a very loving and very committed father. However, the controlling nature of his personality makes it inappropriate to require [Mrs W] to share parental responsibility with him, even if there has been some, much needed, improvement in his conduct in recent times.

28 Although [Mrs W]’s approach to bringing up the children appears very laidback, I consider she has shown she is reasonably “child focused” and has a common sense approach. She can be trusted to make sensible decisions. On the other hand, [Mr W] appears more “rights focussed”. He has also demonstrated a tendency to look to the children to meet his needs rather than vice versa – see for example his reasons for wanting to visit the children at school.

29 Although [Mrs W] will be given ultimate responsibility for most of the important decisions relating to the children’s welfare, this does not mean she is precluded from informing [Mr W] of decisions she proposes to make and seeking his input. In some instances, it would be desirable that she does so – for example in relation to the children’s secondary education. Although I would encourage [Mrs W] to seek [Mr W]’s input, this will be entirely a matter for her.

Shared-care arrangement

30 [Mr W] advanced a number of reasons for wishing to continue with the current shared-care arrangement, which involves the children spending three nights each week with him and four nights with [Mrs W]. His main reasons were these:

•	His current job makes it impracticable to change to a week- and-week about arrangement without enrolling the children in extended day-care.
•	The children prefer the current arrangement and do not like day-care.
•	A week is too long for the children to be away from him.
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•	He would have to “play catch-up with the children’s homework and eating habits” if [Mrs W] had them for a full week.
•	[Mrs W] consented to the arrangement, and it has now been in place for some years.

31 [Mrs W]’s reasons for wishing to change to a week-and-week about arrangement were primarily:

• Now they are both at school, the children need a more settled routine.

• The twice-weekly movement of the children will become increasingly inappropriate as they move into higher grades at school.

• The week-and-week about arrangement has worked well when trialled during school holidays.

• She regrets agreeing to the current regime, and only did so because of her concern about [Mr W] not spending time with the boys after separation.

32 The major logistical difficulty associated with [Mrs W]’s proposal relates to [Mr W]’s employment and the difficulties he has in making suitable arrangements for childcare. Although [Mr W] has essentially an office job, with considerable flexibility in his hours, he is nevertheless obliged to work an 80-hour fortnight. It is feasible for him to work more hours in one week and less in the next, but there are occupational health and safety issues governing how many days he can work in succession. Apart from doing his desk job, he is also obliged to carry out front line duties on three weekend nights every eight or nine weeks.

33 Although valiant attempts were made to indicate how [Mr W] might arrange his roster to accommodate a week-and-week about arrangement, I accept that it would be virtually impossible without relying on others to assist him in caring for the children. [Mr W] lives alone and lacks any family support. The boys have in the past expressed concerns about [Mr W]’s mother, who [Mr W] himself described as being on occasions “demanding, over bearing and old fashioned”. [Mr W]’s only other close relative in Perth is his sister, from whom he is estranged.

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34	[Mr W] would therefore have to rely on after-school care or other forms of childcare if he was required to work outside school hours during the week he would have the children. Although I consider the children are probably not as poorly disposed to after-school care as has been made out, I nevertheless accept that they would probably prefer at this stage to be looked after in their home(s) rather than elsewhere.
35	[Mr W]’s current posting in the [services] is for a minimum of three years and a maximum of four years. This means he is likely to be in his current position until October 2008; however, by October 2009 he is likely to have been transferred (or at least be subject to transfer on short notice). By October 2009, [H] will be 12 and [L] will be 11 years of age. They will then both be near the beginning of the secondary stage of their education.

36 I consider there is much merit in the reasons advanced by

[Mrs W] for wanting to terminate the current shared-care arrangement. Nevertheless, in coming to my decision, I take into account the fact that [Mrs W] did agree to the current arrangement only a few years ago. I also take into account the fact that [Mr W] took his present job on the assumption the arrangement was going to continue and would find it difficult to accommodate the proposed changes.

37 Given these matters, I have determined that it would be inappropriate to change the shared residence arrangement immediately. However, I consider it would be contrary to the children’s best interests to allow the current regime to continue for too much longer. The twice-weekly change of residence involves too much “to-ing and fro-ing”. The children never have a chance to settle down in the one place. This is likely to have a negative impact on their schooling and general stability as they mature and move into higher grades at school.

38 I have determined that the appropriate time to change the arrangement will be at the beginning of 2009. By that stage, [Mr W] will have completed his mandatory three years in his current post and will be able to seek a transfer to an alternative position. The children will be older and less likely to be concerned about going to after- school care, if required. In reaching my decision, I do not discount the fact that [Mr W] may find it difficult to find a suitable position and still be able to care personally for the children as much as he would

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like. However, just as [Mrs W] has had to make changes to her hours in order to accommodate her obligations to the children, so will [Mr W] if he wishes to continue to share in their care. This may, for example, involve him working reduced hours, as he has done in the past.

39 I do not propose making an order for the children to spend week- and-week about during school holidays pending the change in arrangements in 2009. I am aware that the parents have arranged this from time to time in the past and I am also aware that the children have indicated that they would like such an arrangement. If such an arrangement is convenient to both parents, then they can implement it themselves as they have done in the past. If, however, it is inconvenient for either parent because of work commitments, then I consider the normal arrangements should remain in place.

Telephone contact

40 There is an order currently for [Mr W] to be able to telephone the children each Friday between 6.00 pm and 7.00 pm. Although

[Mrs W] was prepared to consent to an order that [Mr W] continue to have telephone contact, provided it finishes before 6.00 pm, it was apparent she did not regard telephone contact as being necessary. I agree.

41 There are only three full days between the end of [Mr W]’s period of residence with the children and the commencement of his next period. The youngest child is now eight years of age. I consider the children’s best interests are more likely to be advanced if they spend their time with each parent uninterrupted by contact with the other parent. I gained the strong impression (from [Mr W]’s own evidence and his questions of [Mrs W]) that the telephone calls were more for [Mr W]’s benefit than for the boys anyway. The boys – unsurprisingly, given their ages – appear far more interested in getting on with having fun than speaking with their father on the telephone.

42 [Mr W] has many complaints about the current telephone contact. His proposed solutions for making the contact more acceptable amounted to an unwarranted intrusion into life in

[Mrs W]’s home. For example, he said [Mrs W] should:–

• ensure games and the television were turned off for half an hour during his calls;

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• ensure the children do not have friends over on the days he is permitted to telephone them; and

• not take a shower when it was time for him to call “where you may risk not answering the telephone and cause another Breach of Orders”.

43 In deciding to discharge the order for telephone contact, I am in part motivated by the knowledge that [Mr W] will commence enforcement proceedings for any perceived breach of the order. Such proceedings over trivial breaches distract both parties from their primary task of looking after their children and earning a living. They also cause [Mrs W] to incur unnecessary legal costs, which would be better spent on the children. Discharging the order will not only reduce the possibility of further breach applications, but will also obviate the “necessity” for unpleasant emails of the type attached to [Mrs W]’s affidavit of 26 April 2006.

44 Eliminating any form of telephone contact also renders it unnecessary to make any of the seven different telephone contact orders sought by [Mr W]. I instead will make only one order, permitting the children to telephone their mother or father when they reasonably wish to do so. I emphasise the word “reasonably”.

[Mrs W], will not for example, be obliged to allow the children to telephone their father to complain about her disciplining them – see, for example, the band-aid incident referred to in paragraph 92 of her affidavit of 26 April 2006.

Time away from the children

45 I generally accept the reasons advanced by [Mrs W] for opposing the orders sought by [Mr W] relating to his desire to be free to travel and leave the children with her. I do not consider it appropriate for one parent simply to lumber the other with the children so they can head off on a holiday, especially on short notice. Shared parenting involves sacrifices. If either parent wishes to go away during times when they are meant to be looking after the children, they will need to make their own childcare arrangements, having first given the other parent the option of caring for the children while they are away.

46 Just as my decision concerning the shared care arrangement for the next two years has been influenced by [Mr W]’s work commitments, my decision in relation to this issue has been

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influenced, in part, by the fact that [Mrs W] has fewer holidays than [Mr W]. It is true that at the present time [Mrs W] might be able to accommodate some of the proposed suspensions of residence by seeking help from her partner (who was described by [Mr W] in one lengthy diatribe as “[C] the lazy arse”). However, I do not consider it appropriate to formulate parenting orders around the continuation of [Mrs W]’s current relationship or the continuation of her partner’s present employment.

Christmas Day/Boxing Day

47 I intend to make an order for the festive season different to that sought by both parties. My order will involve the children spending Christmas Eve and most of Christmas Day with one parent and most of Boxing Day with the other parent. It will allow for a long and leisurely lunch with one parent and dinner with the other on Christmas Day, with the arrangements being reversed in the following year. I will also order a 5.00 pm handover on Christmas Day, which is the normal handover time. This will reduce complexity/potential for disagreement on any Christmas Day that happens to be a normal handover day.

48 As Christmas Eve 2006 falls on a Sunday (i.e. the normal handover time), I propose making an order that will have the effect of the children remaining with [Mrs W] one more day this year and going to [Mr W] the next day. The arrangement will be reversed the following year, which happens also to fit in neatly around the normal shared care regime (i.e. the handover will happen one day earlier than usual).

Mother’s Day/Father’s Day

49 The parties are in agreement that their respective periods of residence with the children will be suspended, when necessary, from 10.00 am on Mother’s Day or Father’s Day. [Mrs W] proposes that the period of suspension conclude at 5.00 pm, whereas [Mr W] proposes that the children remain until the following morning. I accept [Mrs W]’s argument that there is no great benefit in the children staying overnight on either Mother’s Day or Father’s Day, especially as the next day is likely to be a school day. They will have spent most of the day with their mother or father, and in my view that is adequate. In any event, because the children spend Sunday night

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with [Mr W], he will have the children on the night of Father’s Day
until the regime changes in 2009.

Easter

50 The parties were in agreement that the handover on Easter Sunday should be at 2.00 pm rather than the normal 10.00 am. This order alone will ensure an appropriate sharing of time over Easter.

Children’s birthdays

51 The form of orders the parties each proposed for the children’s birthdays was far too complicated – different arrangements were to be made depending on whether or not the birthday falls on a school day, during a school holiday, on a Saturday, a Sunday, a public holiday (and even a public holiday that is not a Wednesday). [Mr W]’s orders also proposed different arrangements for each parent.

52 The form of order I intend to make will bring about this result:

• If the child’s birthday falls on a handover day, there will no special arrangement for the child’s birthday – both parents will see the children for part of the day anyway.

• On all other birthdays, the parent with whom the child will not be staying on the night of their birthday will have both children from 4.00 pm to 8.00 pm.

53 I do not see any need for the children to be returned any earlier than 8.00 pm on these two special days. Although [Mr W] considers 8.00 pm too late for a handover and made a fuss about the children having to do their homework, the fact is that [H]’s birthday will always fall during school holidays and, for the foreseeable future, [L]’s birthday will not fall on a school day.

Parents’ birthdays

54 I have made clear I consider there is already too much “to-ing and fro-ing” between the respective homes. I agree with [Mrs W]’s view that it is unnecessary to further complicate matters by making special arrangements for the children to see each parent on the parent’s own birthday. Given the shared care arrangement, the

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children will either be with the parent on that parent’s birthday or will
see the parent within just a few days.

55 In any event, I consider the contact proposed by [Mr W] is more for the benefit of the parent than of the child. I consider filial obligations will be sufficiently satisfied by the children each telephoning their mother or father if they happen not to be living with them on the day of their birthday.

Attendance at children’s activities

56 [Mr W] proposes that both parents be at liberty to attend various activities in which the children are involved. [Mrs W] is opposed and proposes that each parent attend only if the activity falls during their residence period with the children.

57 Whilst it would be highly desirable for both parents to be able to be present at all such activities, I accept that [Mrs W] has good reason for not wanting to attend if [Mr W] is going to be there. Whilst I accept that in recent times [Mr W] has behaved more appropriately than he has in the past, his supercilious demeanour would make the occasion disagreeable for [Mrs W] and may result in her not attending events. More importantly, I consider that the children will be much more relaxed and comfortable if only the parent with whom they are living at the time is in attendance.

58 I also propose to direct both parents to stay away from the children’s school during the times when the children are not in their care, save in certain limited circumstances. By this means incidents such as that which occurred on 7 April 2006 can be avoided and

[Mrs W] will not feel intimated by [Mr W]’s unannounced presence. I will include in the order a mechanism to allow each parent to attend a similar number of sporting carnivals and assemblies. Without such a mechanism, one parent might miss out until the week-about arrangement commences, since such events are often held on the same day of the week.

Removal of children from Western Australia

59 The proposals made by the parties are similar save that [Mrs W] requires six weeks’ written notice by either party of their intention to remove the children from Western Australia whereas [Mr W] proposes four weeks. I consider that six weeks’ notice is appropriate as generally [Mrs W] needs at least six weeks in which to rearrange

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her work commitments. She may decide to rearrange her work
commitments in the event she receives such a notice from [Mr W].

Passports

60 I do not see any need for an order requiring the parents to sign documents to obtain Australian passports as [Mrs W] was not cross- examined on her statement that she has already signed the documents.

61 The only matter in contention was whether or not the passports should be held by the Court, as [Mr W] proposed, or by [Mrs W], as she proposed. I see no necessity for the Court to hold the passports. There is no reason to believe [Mrs W] is going to use the passports inappropriately. In my view, she can be trusted with them.

Injunctions

62 I intend to make a variety of injunctions governing the parents’ behaviour towards each other and the children. Some of these were sought and others were not. I appreciate that some of them may be difficult to enforce, but I was heartened by the fact it seems there has been some real attempt to comply with the non-denigration order made previously. At the very least, the injunctions will indicate the behaviour the Court expects of both parents.

63 One injunction is worthy of particular mention – namely the one restraining both parties from criticising the parenting of the other. This is primarily directed against [Mr W] who persists in lecturing [Mrs W] on the way in which she cares for the children – see for example his email of 6 November 2005. [Mr W] has known he could seek residence of the children if he thought he could demonstrate that [Mrs W] is not capable of providing adequately for the children. He has chosen not to do so. He should now let her get on with the job, free of the debilitating impact of the type of correspondence he has been in the habit of sending to her and her solicitors.

Proposed orders

64 As the law has been amended since the trial, and as some of the orders I propose making were not foreshadowed at the time of trial, I will give the parties an opportunity to make some very brief submissions before I pronounce my final orders. Those submissions

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may not open up issues already ventilated, but may draw attention, for example, to any lack of clarity or impracticability in the orders. I will therefore initially only publish my reasons and then adjourn the matter to a later date for the orders to be made.

65 Subject to hearing those further submissions, I propose making

these orders:–

1. All parenting orders concerning the children, [HW], born January 1997, and [LW], born July 1998, are discharged.

Parental responsibility

2. The wife, [Mrs W], shall have sole parental responsibility for:

(a)	major long-term issues in relation to the children;
(b)	decisions concerning the children’s education, health (including making all appointments) and attendance at regular organised extra-curricular activities and swimming lessons, whether or not such decisions are of a major long-term nature; and
(c)	all other decisions required concerning the children during the time they are living with her.

3. Subject to the preceding order, the husband, [MR W], shall have parental responsibility for decisions required concerning the children during the time they are living with him.

4. The wife shall keep the husband informed of:

(a)	any decisions made by her concerning major long-term issues; and
(b)	any significant medical treatment or medical advice concerning the children.

5. The wife shall not arrange for the children to attend any appointments or activities which will fall during the husband’s time with the children, without his written consent.

6. The husband shall not arrange for the children to attend any activities which will fall during the wife’s time with the children, without her written consent.

Shared living arrangements

7. Until Sunday 4 January 2009, the children shall live:

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(a)

with the husband from 10.00 am Sunday to 5.00 pm Wednesday; and

(b) with the wife at all other times.

8.

With effect from 4 January 2009, the children shall live with each parent on a week-and-week about basis, with the children living with the husband in the first week and the handover occurring at 5.00 pm each Sunday.

9.

These living arrangements shall also apply during school holidays.

10.

If either of the children is attending an extra-curricular activity organised by the children’s school or sporting club at the time of the normal handover, the parent with whom the children has been living shall:

(a)	advise the other parent as far in advance as practicable;
(b)	nominate an alternative time at which handover will occur (such time being not later than will permit the child(ren) to return from the event and be ready for handover); and
(c)	be at liberty to invite the other parent to conduct the handover at the venue where the activity is taking place.

Christmas Day/Boxing Day

11. The children shall spend time with the wife:

(a)	from 5.00 pm on Christmas Eve to 5.00 pm on Christmas Day in 2006 and each even numbered year thereafter;
(b)	from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2007 and each odd numbered year thereafter.

12. The children shall spend time with the husband:

(a)	from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2006 and each even numbered year thereafter;
(b)	from 5.00 pm on Christmas Eve to 5.00 pm on Christmas Day in 2007 and each odd numbered year thereafter.

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Easter

13. The handover on Easter Sunday each year shall occur at 2.00 pm.

Mother’s Day/Father’s Day

14. The children shall spend time with

(a)	the husband from 10.00 am to 5.00 pm on Father’s Day; and
(b)	the wife from 10.00 am to 5.00 pm on Mother’s Day.

Children’s birthdays

15. The parent with whom the children will not be staying overnight on 1 January and 18 July each year shall be entitled to spend time with both children on those days from 4.00 pm until 8.00 pm.

16. The previous order does not apply if the day in question is a handover day.

Holidays

17. The husband and the wife each be at liberty to take the children away from Perth:

(a)	for periods totalling not more than 7 weeks each year (during school holidays only); and
(b)	on one long weekend each school term,

and for this purpose the other parent’s time with the children
shall be suspended.

18. Unless otherwise agreed in writing, for the purposes of the preceding order:

(a)	the children shall not be removed from Perth at any time that would interfere with the time the other parent is entitled to spend with the children on special days (for example, Christmas Day, Easter and children’s birthdays);
(b)	the children shall be returned to Perth by 5.00 pm the day before school is due to commence;

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(c) the parent taking the children shall give the other parent six weeks’ notice of their intention to travel and the proposed itinerary.

19. In the event the proposed travel is outside Australia:

(a)	the parent staying home shall inform the parent travelling (within 7 days of receipt of the proposed itinerary), whether they consent to or object to the removal;
(b)	no less than 14 days prior to the children’s departure from Australia, the parent travelling shall provide to the parent staying home documentation confirming the children have return air tickets.

20. The wife shall retain the children’s passports, provided that if the husband is taking the children overseas, the wife shall deliver up the passports to him on request not later than 10 days prior to travel and the husband shall return the passports to the wife within 10 days of the children’s return.

Suspension of time with children

21. The husband and the wife each be at liberty, when travelling away from Perth for extended periods, not to spend time with the children pursuant to the provisions of paragraphs 7 and 8, provided:

(a)	they give as much notice as practicable to the other parent of the period they propose being away;
(b)	give the other parent the first option of caring for the children during their absence; and
(c)	make proper arrangements for the care of the children if the other parent does not elect to care for the children.

Handover

22. Handovers may be facilitated by either parent, their partners or relatives.

23. The person delivering the children shall park in the other parent’s driveway and remain in/near their car and the parent

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receiving the children shall remain inside their home/near the
door.

Telephone communication

24. The husband and wife shall:

(a)	permit the children to telephone the other parent whenever they reasonably request to do so;
(b)	ensure the children telephone the other parent on their landline number on the other parent’s birthday if the child is not spending part of the birthday with that parent.

25. If either party has the children in their care for more than 7 days’ in succession they shall:

(a)	provide the other party with a contact telephone number (landline wherever possible) where they can be contacted; and
(b)	permit the children to speak with the other parent once every 7 days.

Information exchange

26. The husband and wife shall:

(a)	keep each other informed of their residential address, landline home telephone number and work number.
(b)	urgently advise the other in the event either of the children is seriously injured or becomes seriously unwell 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 children’s school;

(ii) a copy of any circular, fixture or other significant document provided concerning the children’s extra- curricular activities;

(iii) details of any invitation to attend a birthday party or other special occasion that will occur

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during a time when the children will be with
the other parent.

Injunctions

27. The husband and wife be restrained and an injunction is hereby granted restraining them from attending at the children’s schools (or events or outings organised by the children’s schools) during the time the children are not living with them, unless:

(a)	invited by the other parent; or
(b)	individually invited for some special reason by the school principal or class teacher.

28. Notwithstanding the provisions of the preceding order:

(a)  the husband shall be entitled to attend:

(i) the children’s school athletics and swimming carnivals in odd numbered years;

(ii) the children’s school assemblies on odd numbered days.

(b)

the wife shall be entitled to attend:

(i)	the children’s school athletics and swimming carnivals in even numbered years; and
(ii)	the children’s school assemblies on even numbered days.

(c)

if either parent is unable to attend an athletics or swimming carnival or assembly they are entitled to attend pursuant to this order, they shall give the other parent as much notice as possible and invite them to attend in their place;

(d)

the husband and wife shall each be entitled to attend parent/teacher nights, provided that the wife shall attempt to arrange her interview as close as possible to the commencement of the allocated times and the husband shall endeavour to arrange his interview as close as possible to the end of the allocated times (and both parties shall refrain from attending earlier than

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five minutes prior to their interview and shall leave
promptly after their interview is completed).

29. The husband and wife be restrained and an injunction is hereby granted restraining them from:

(a)	denigrating the other party or their friends or relatives when the children are present;
(b)	allowing the children to read any Family Court documents or correspondence connected with Family Court proceedings;
(c)	discussing the Family Court proceedings and the issues raised in the proceedings with the children or in their presence;
(d)	passing information or messages through the children to the other party;
(e)	communicating with each other except by email (other than in the case of emergency or in the event email is not working).
(f)	attending any extra-curricular activities arranged for the children during the time the children are not living with them, unless invited in writing by the other parent to do so;
(g)	changing their principal place of residence without giving the other parent 14 days’ notice in writing;
(h)	residing other than in the northern suburbs of Perth and in any event not more than 50 kilometres from the Perth GPO;
(i)	removing the children from Australia without the written consent of the other parent, authenticated as prescribed pursuant to the Family Law Act 1975.

30. The husband and wife be restrained and an injunction is hereby granted restraining them from criticising the parenting of the other when communicating with:

(a)	each other;
(b)	the children;
(c)	the staff at the children’s schools

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(d)	doctors and other professional people treating the children;
(e)	coaches and others involved in the children’s sporting activities; and
(f)	any other persons in the presence of or within the hearing of the children.

Variation of arrangements/mediation

31. The husband and wife shall be liberty to have the children spend time with them other than as set out in these orders, provided such variations are agreed in writing.

32. The husband and wife shall attend mediation with Anglicare, Centrecare or Relationships Australia in December 2006 to discuss any issues relating to these orders and shall thereafter attend mediation on one occasion in October each year. The costs of such mediation shall be paid equally.

Endnote

One of the changes made by the recent amendments to the Family Law Act 1975 was (yet another) alteration to the terminology used in describing the time children spend with their parents. The old expressions – if one can so describe words introduced only 11 years ago – “residence” and “contact” have been replaced by other formulations. I have used the new form of words in pronouncing my orders; however, I find them too unwieldy to employ when attempting to give reasons. Therefore, for ease of comprehension, I have continued to use the words “residence” and “contact”, rather than engaging in the verbal gymnastics that would otherwise be required.

I certify that the preceding [65] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate