Walcott & Walcott (No 2)
[2020] FamCA 434
•2 June 2020
FAMILY COURT OF AUSTRALIA
| WALCOTT & WALCOTT (NO. 2) | [2020] FamCA 434 |
| FAMILY LAW – CHILDREN – Parenting Orders – parties invited to submit proposed orders following the determination of the mother’s relocation application which was dismissed. |
| Child Support (Assessment) Act 1989 (Cth) s 118 |
| Karllsson & Karllsson [2018] FamCA 305 Walcott & Walcott [2020] FamCA 218 |
| APPLICANT: | Ms Walcott |
| RESPONDENT: | Mr Walcott |
| FILE NUMBER: | MLC | 738 | of | 2019 |
| DATE DELIVERED: | 2 June 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | By written submissions |
| JUDGMENT OF: | The Honourable Justice Wilson |
| DATE OF FINAL WRITTEN SUBMISSIONS: | 22 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Belleli King & Associates |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Randles Cooper Lawyers |
Order by consent –
The parties have equal shared parental responsibility for the child X born … 2016 (“the child”).
The child’s living arrangements
On the following special occasions all spend time arrangements pursuant to order 12 herein are suspended and the child spend time with each of the parties as follows –
(a) on Father’s Day with the father from 10am to 4pm if the child is not already in the father’s care;
(b) on Mother’s Day with the mother from 10am to 4pm if the child is not already in the mother’s care;
(c) during the Easter period –
(i)with the father on even numbered years commencing in 2022 from 5pm on Easter Thursday to 5pm on Easter Monday; and
(ii)with the mother on odd numbered years commencing in 2021 5pm on Easter Thursday to 5pm on Easter Monday;
Communication and information exchange
The parties immediately inform the other of any serious illness or injury sustained by the child and provide particulars of any treatment received by them and the name and address of the treatment providers and/or locations at which they are a patient.
In the event that the child is admitted to hospital the parties are to immediately inform the other and both parties are permitted to attend the hospital.
The parties authorise and direct all medical and health practitioners of the child to provide both parties with all information as to their attendances and/or treatments together with anything else related to the child.
The parties authorise and direct all school, educational facilities and extra-curricular providers of the child to provide both parties with all information reasonably provided regarding all matters, including but not limited to notices, information, newsletters, reports and/or photographs.
The parties are both permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
The parties keep each other informed as to any change of their mobile phone number or email address as soon as reasonably practicable.
The parties are at liberty to provide a copy of these orders to the following –
(a) the principal or delegate of the principal of the childcare attended from time to time by the child; and
(b) any medical practitioner and/or allied health professional attending upon the child.
Travel
The parties ensure that the child has a valid New Zealand and Australian passport at all times.
The child’s New Zealand passport remain with the mother and the child’s Australian passport remain with the father.
The Court further orders –
The child’s living arrangements
The parties shall spend time and communicate with the child as follows –
(a) on a week on and week off basis with changeover to occur at 5pm on Sunday;
(i)until the age of 5 the child will spend Wednesday night with the parent not caring for the child that week from 5pm or childcare/school pick-up until 9am or childcare/school drop-off the next morning;
(b) once the child commences primary school, during school holiday periods the father will spend time with the child as follows –
(i)in each even numbered year for the first half of each school holiday period and in each odd numbered year for the second half of each school holiday period;
(c) have regular Skype or FaceTime calls with the child when the child is not in their care; and
(d) such further or other times as agreed between the parties in writing.
On the following special occasions all spend time arrangements pursuant to order 12 herein are suspended and the child spend time with each of the parties as follows –
(a) during the Christmas period on a two year rotating basis commencing in 2020 –
Year one
(i)with the mother from 12pm on Christmas Eve to 12pm on Christmas Day and with the Father from 12pm on Christmas Day to 12pm on Boxing Day;
Year two
(ii)with the father from 12pm on Christmas Eve to 12pm on Christmas Day and with the Mother from 12pm on Christmas Day to 12pm on Boxing Day;
(b) until the child commences primary school the child will spend time with the parents on birthdays as follows –
(i)on the child’s birthday if the child is in the mother’s care, for a period of seven hours with the father from 12pm to 7pm;
(ii)on the child’s birthday if the child is in the father’s care, for a period of seven hours with the mother from 12pm to 7pm;
(iii)on the mother’s birthday if the child is in the father’s care, for a period of seven hours with the mother from 12pm to 7pm;
(iv)on the father’s birthday if the child is in the mother’s care, for a period of seven hours with the father from 12pm to 7pm;
(c) after the child commences primary school the child will spend time with the parents on birthdays as follows –
(i)on the child’s birthday on a school day if in the mother’s care will spend time with the father from school pick-up until 7pm;
(ii)on the child’s birthday on a school day if in the father’s care will spend time with the mother from school pick-up until 7pm;
(iii)on the child’s birthday on a non-school day if in the mother’s care will spend time with the father from 12pm until 7pm;
(iv)on the child’s birthday on a non-school day if in the father’s care will spend time with the mother from 12pm until 7pm;
(v)on a parent’s birthday falling on a school day the applicable parent will spend time with the child from close of school on their birthday until commencement of school the following day or 11am if not a school day (if not in their care);
(vi)on a parent’s birthday on a non-school day the applicable parent will spend time with the child from 10am on their birthday until 10am the following day or the commencement of school (if not in their care);
(d) such further or other times as agreed between the parties in writing.
Location and time of changeover
Changeovers that do not coincide with the commencement or the conclusion of child care/school are to occur by the party with the care of the child at that time dropping the child at the other parties’ place of residence or otherwise at a venue agreed between the parties in writing.
Travel
Until the child commences primary school the parents are permitted to travel domestically or overseas with the child as follows –
(a) the mother is permitted to travel domestically or overseas with the child up to six weeks per year, each trip being for a maximum of two weeks with a minimum of four weeks required between trips, with the father to have an additional two nights make-up time immediately after each trip;
(b) the father is permitted to travel domestically or overseas with the child up to six weeks per year, each trip being for a maximum of two weeks with a minimum of four weeks required between trips, with the mother to have an additional two nights make-up time immediately after each trip.
After the child commences school any travel shall occur during that party’s time with the child during school holiday periods unless otherwise agreed in writing.
If either party intends to travel internationally with the child the following will apply –
(a) the travel shall occur during that party’s time with the child unless otherwise agreed;
(b) the travelling party shall provide the other party with no less than 14 days’ notice in writing of the intended travel; and
(c) the travelling party shall provide the other party with the following information no less than 14 days prior to departure except for in the circumstances of emergency travel –
(i)a full itinerary including all details as to the travel dates, locations, accommodation and contact details for the child for the duration of the travel;
(ii)a copy of the return air tickets for the child; and
(iii)scheduled times as to when the non-travelling party can communicate with the child by way of telephone, Skype or other electronic means.
Post separation parenting course
Each party attend a post separation parenting course, electronically if necessary, and provide evidence of the satisfactory completion of their participation in such a course by 10 December 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walcott & Walcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 738 of 2019
| Ms Walcott |
Applicant
And
| Mr Walcott |
Respondent
REASONS FOR JUDGMENT
Introduction
On 8 April 2020 I handed down reasons for judgment[1] limited solely to the issue of relocation. Having determined that application adversely to the applicant, I invited the parties to endeavour to reach agreement on orders in relation to parenting.
[1]Walcott & Walcott [2020] FamCA 218.
They did not reach agreement except on the most rudimentary of issues. Each proposed orders and submissions in support of the orders each sought. Aided by the evidence I considered for the determination of the relocation application, especially the evidence of Mr K, I have considered the respective proposals and in the passages below I have determined the appropriate orders to make.
Following my receipt of the proposed orders and submissions in support, on 18 May 2020 I directed my associate to contact the parties to determine whether any further hearing was sought to canvas items the subject of disagreement arising from each party’s written submissions. I gave the parties until 4pm on 22 May 2020 to provide a response. Both did so, indicating that a further hearing was not required and that orders should made on the papers. I have proceeded on that basis.
Equal shared parental responsibility
The parties agreed that they will have equal shared parental responsibility for the child. That is a consent order recorded above.
Post separation parenting course
Neither party consented to my making an order for one or other to attend a post separation parenting course. However in my view each must attend such a course. I order each party to attend such a course (electronically if necessary) and to provide evidence of the satisfactory completion of their participation in such a course by 10 December 2020.
Orders upon the child turning seven
Many of the orders proposed by the mother were premised on the child turning seven years of age. He is currently four. It was common ground that the child lives with the mother and spends time with the father –
a)each Wednesday from 5pm to 7pm;
b)each Friday from 5pm until 7pm on Sunday; and
c)on such other times as may be agreed.
In the absence of agreement broadening those periods the child has two hours with his father during the week, two full days and two nights each weekend.
The mother offered no explanation for her insistence upon the child turning seven years of age before he is able to spend overnight time with the father. The father resisted that notion.
With whom the child will live
In his report made 18 October 2019 Mr K recommended that the child live with the mother. The mother argued that the child should spend equal time with both parents only after he turns seven and until then, for the next three years, time will be on a two day, two day, three day basis, thereby effectively giving the mother five out of seven days each week with the child. As already mentioned, the father seeks an equal shared care arrangement effective forthwith. His proposal involved a week-about arrangement.
The mother’s proposal was premised on the child’s age to seven and then after seven. It was as follows –
2.The parties shall spend time and communicate with the child as follows:
2.1. Until the child attains the age of seven:
2.1.1With the Mother from 9:00 am Monday to 9:00 am on Wednesday and on alternate weekends from 9:00 am Friday to 9:00 am on Monday;
2.1.2.With the Father from 9:00 am Wednesday to 9:00 am on Friday and on alternate weekends from 9:00 am Friday to 9:00 am on Monday; and
2.1.3.Such further or other times as agreed between the parties in writing.
2.2. Once the child attains the age of seven:
2.2.1.On a week on and week off basis with changeover to occur at 5:00 pm on Friday;
2.2.2.Have regular calls with the child by telephone, Skype, Face-Time or other electronic means when the child is not in their care; and
2.2.3.Such further or other times as agreed between the parties in writing.
Conversely, the father’s proposal was not so restricted. It was as follows –
2.The parties shall spend time and communicate with the child as follows:
2.1.On a week on and week off basis with changeover to occur at 5:00 pm on Sunday;
2.1.1Until the age of 5 the child will spend Wednesday night with the parent not caring for the child that week from 5pm or childcare / school pick-up until 9am or childcare / school drop-off the next morning.
2.2Once the child commences primary school, during school holiday periods, the Father will spend time with the child as follows:
2.2.1In each even numbered year for the first half of each school holiday period and in each odd-numbered year for the second half of each school holiday period.
2.3.Have regular Skype/Face-Time calls with the child when the child is not in their care; and
2.4.Such further or other times as agreed between the parties in writing.
In my earlier judgment in relation to relocation, I addressed Mr K’s reference to the child turning five. It was in the context of consideration being given to relocation. Mr K was of the view that the bond between the father and the son needed development and the prospects of any such development would be impaired once the child turned five unless the child had meaningful time with the father.
Since the relocation application was determined, the mother recognises that she must find work in Australia. The mother also recognises that while she is working, the child will need to be cared for.
In her written submissions following the refusal of the relocation application, the mother said Mr K did not support a regime of equal time. I do not agree. The mother took Mr K’s comments out of context. Mr K’s comments about the child feeling a sense of loss without the mother’s constant comfort were made –
a)prior to the father’s proposal to more deeply immense himself in the child’s life; and
b)in relation to a child of more tender years.
The child is older now. Mr K was careful in his evidence before me on the relocation application to point out that the reference to five years of age was a reference to the undesirability of relocating before the child turned five. He said nothing about there being no equal shared care until the child turned seven.
It is obvious that the mother must seek work in Australia. She will need help caring for the child while she pursues opportunities for work and, when she is employed, engages in her chosen vocation. The father offers that assistance. I see no reason why overnight time on a week-about basis must await the child’s seventh birthday. The very issue raised by Mr K for his recommendation against relocation, namely, the child’s bonding with the father, will be enhanced by a week-about arrangement. There is no suggestion that both parents are anything but excellent parents. They simply cannot get along. Here, the child must be sheltered from the friction that exists between the parents. But that does not mean the child’s emotional growth with his father must await some arbitrary time limitation selected by the mother. In the mother’s written submissions she referred to Stevenson J’s decision in Karllsson & Karllsson.[2] There, her Honour ordered an equal time arrangement. The mother in this case states she is not opposed to a week-about arrangement but it must be “at an appropriate time”.[3] I am unable to see why the present time is not an appropriate time.
[2] [2018] FamCA 305.
[3] Paragraph 29 of her submissions.
I propose to make orders in accordance with the father’s proposal.
Special occasions time
For Father’s Day and for Mother’s Day the parties agreed on the regime that will apply. I shall make orders to that effect.
Each party proposed a different regime for Christmas. The father’s regime was as follows –
3.3.During the Christmas period on a two-year rotating basis commencing in 2020:
3.3.1.Year one - with the Mother from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Father from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day;
3.3.2.Year two - with the Father from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Mother from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day.
Conversely, the mother proposed a four year rotating regime. It was as follows –
4.3.During the Christmas school holidays on a four-year rotating basis commencing in 2020:
4.3.1.Year one - with the Mother from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Father from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day. The parties (or a nominated adult as agreed between the parties in writing) otherwise be at liberty to travel with the child for a period of fourteen days over the Christmas school holidays with the Mother to elect her days of travel with the child in the first instance, provided the days of travel do not include Christmas Eve, Christmas Day or Boxing Day;
4.3.2.Year two - with the Father from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Mother from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day. The parties (or a nominated adult as agreed between the parties in writing) otherwise be at liberty to travel with the child for a period of fourteen days over the Christmas school holidays with the Father to elect his days of travel with the child in the first instance, provided the days of travel do not include Christmas Eve, Christmas Day or Boxing Day;
4.3.3.Year three – the Mother (or a nominated adult as agreed between the parties in writing) be at liberty to travel with the child for a period of fourteen days over the Christmas school holidays (including Christmas Eve, Christmas Day and Boxing Day). In the event that the Mother does not travel with the child, then the child spends time with the Mother from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Father from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day; and
4.3.4.Year four – the Father (or a nominated adult as agreed between the parties in writing) be at liberty to travel with the child for a period of fourteen days over the Christmas school holidays (including Christmas Eve, Christmas Day and Boxing Day). In the event that the Father does not travel with the child, then the child spends time with the Father from 12:00 pm on Christmas Eve to 12:00 pm on Christmas Day and with the Mother from 12:00 pm on Christmas Day to 12:00 pm on Boxing Day.
It seemed to me that the father’s proposal was simpler, easier to apply and more likely to be followed. Plus it promoted the best interests of the child as it gave the child regular, albeit rotating time, with each parent. I shall make an order in accordance with the father’s proposal.
So far as Easter was concerned, the parties agreed. Their proposal was as follows –
3.4. During the Easter period:
3.4.1.With the Father on even numbered years commencing in 2022 from 5:00 pm on Easter Thursday to 5:00 pm on Easter Monday; and
3.4.2.With the Mother on odd numbered years commencing in 2021 5:00 pm on Easter Thursday to 5:00 pm on Easter Monday.
Birthdays presented more complexity. The father proposed a regime that he said would apply until the child attends primary school. It was as follows –
3.5.1On the child’s birthday, if the child is in the Mother’s care, for a period of seven hours with the Father from 12:00 pm to 7:00 pm;
3.5.2On the child’s birthday, if the child is in the Father’s care, for a period of seven hours with the Mother from 12:00 pm to 7:00 pm;
3.5.3On the Mother’s birthday, if the child is in the Father’s care, for a period of seven hours with the Mother from 12:00 pm to 7:00 pm
3.5.4On the Father’s birthday if the child is in the Mother’s care, for a period of seven hours with the Father from 12:00 pm to 7:00 pm.
The mother’s proposal for time on birthdays was complicated. It invited dispute. It was as follows –
4.5.On the child’s birthday, if the child is in the Mother’s care, for a period of three hours with the Father to be agreed between the parties in writing and failing agreement from 5:00 pm to 8:00 pm if the child’s birthday falls on a childcare/school day, and for a period of seven hours with the Father to be agreed between the parties in writing and failing agreement from 12:00 pm to 7:00 pm if the child’s birthday falls on a non-childcare/school day;
4.6.On the child’s birthday, if the child is in the Father’s care, for a period of three hours with the Mother to be agreed between the parties in writing and failing agreement from 5:00 pm to 8:00 pm if the child’s birthday falls on a childcare/school day, and for a period of seven hours with the Mother to be agreed between the parties in writing and failing agreement from 12:00 pm to 7:00 pm if the child’s birthday falls on a non-childcare/school day;
4.7.On the Mother’s birthday, if the child is in the Father’s care, for a period of three hours with the Mother to be agreed between the parties in writing and failing agreement from 5:00 pm to 8:00 pm if the Mother’s birthday falls on a childcare/school day, and for a period of seven hours with the Mother to be agreed between the parties in writing and failing agreement from 12:00 pm to 7:00 pm if the Mother’s birthday falls on a non-childcare/school day;
4.8.On the Father’s birthday if the child is in the Mother’s care, for a period of three hours with the Father to be agreed between the parties in writing and failing agreement, from 5:00 pm to 8:00 pm if the Father’s birthday falls on a childcare/school day, and for a period of seven hours with the Father to be agreed between the parties in writing and failing agreement from 12:00 pm to 7:00 pm if the Father’s birthday falls on a non-childcare/school day.
The father’s proposal was straight-forward and fair. Conversely, the mother’s proposal was not equal, it called for the parties to negotiate and to agree in writing thereby increasing the probability of conflict and in default of agreement (the time for determining whether agreement had been reached being unexpressed) then a particular regime was set out. In my view, the need to reduce, not escalate, the likelihood of ongoing conflict was a very real consideration. The father’s proposal was more attuned to the diminution of ongoing conflict between the parties. The child will benefit from the angst between the parents diminishing, not increasing. By creating a complicated regime for time for the child at events that should be happy events, the mother’s proposal invited disputation. I will not allow it.
It will be recalled that the father’s proposal had a temporal limit to it, namely, prior to the child commencing primary school. Only a few years fell into that category. He proposed a different, but equally straight forward regime, for time for each parent with the child once the child commenced primary school. It was as follows –
3.6.1On the child’s birthday, falling on a school day, if in the Mother’s care will spend time with the Father from school pick-up until 7pm.
3.6.2On the child’s birthday, falling on a school day, if in the Father’s care will spend time with the Mother from school pick-up until 7pm.
3.6.3On the child’s birthday, on a non-school day, if in the Mother’s care will spend time with the Father from 12pm-7pm.
3.6.4On the child’s birthday, on a non-school day, if in the Father’s care will spend time with the Mother from 12pm-7pm.
3.6.5On a parent’s birthday, falling on a school day, the applicable parent will spend time with the child from close of school on their birthday until commencement of school the following day, or 11am if not a school day (if not in their care);
3.6.6On a parent’s birthday on a non-school day the applicable parent will spend time with the child from 10am on their birthday until 10am the following day, or the commencement of school (if not in their care);
3.13. Such further or other times as agreed between the parties in writing.
The mother’s proposal did not dissect the birthday celebrations time into pre-primary school and post-commencement of primary school. As mentioned earlier, the father’s proposal was more child-focused. It should be preferred.
Changeover
The parties’ proposals were the same but for the inclusion by the father of a provision permitting the nomination of a person familiar to the child to drop off or collect the child. The mother’s proposal said no such thing.
The father’s proposal with its nomination provision injected flexibility to the regime. That will be important when the mother starts full-time work as she may very well encounter obstacles in leaving work so as to arrive at the child’s school by 3:30pm in order to undertake changeovers. As the child gets older he is more likely to be willing to be collected or dropped off by a person other than the parent. That said, in the early years of these orders the child is more likely to be comforted by the knowledge that one of his parents is undertaking drop off to and collection at the changeover point. Equally, the mother’s work arrangements may very well be jeopardised if she is required to seek permission from her employer every time she has to leave work early to undertake personal drop offs and collections associated with changeovers.
Even though her own proposal will most likely orchestrate hardship to the mother, she sought the orders so I shall make the order she urged in paragraph 5 of her proposal.
Communication and information exchange
The parties agreed on the details of these arrangements so I shall make orders in terms of their agreement. It was as follows –
6.The parties immediately inform the other of any serious illness or injury sustained by the child, and provide particulars of any treatment received by them and the name and address of the treatment providers and/or locations at which they are a patient.
7.In the event that the child is admitted to hospital, the parties are to immediately inform the other and both parties be permitted to attend the hospital.
8.The parties authorise and direct all medical and health practitioners of the child to provide both parties with all information as to their attendances and/or treatments, together with anything else related to the child.
9.The parties authorise and direct all school, educational facilities and extra-curricular providers of the child to provide both parties with all information reasonably provided regarding all matters, including but not limited to notices, information, newsletters, reports and/or photographs.
10.The parties both be permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
11.The parties keep each other informed as to any change of their mobile phone number or email address as soon as reasonably practicable.
12.That the parties be at liberty to provide a copy of these Orders to the following:
12.1.The Principal or delegate of the Principal of the childcare attended from time to time by the child; and
12.2.Any medical practitioner and/or allied health professional attending upon the child.
Travel
Unsurprisingly, the travel regime put forward by each parent was different, possibly reflecting the suspicion generated by the relocation application. The mother’s proposal was as follows –
13.That the parties (or a nominated adult as agreed between the parties in writing) be permitted to travel (either domestically or internationally) with the child for up to six weeks per year, with each trip being for a maximum period of two weeks.
14.The parties (or a nominated adult as agreed between the parties in writing) otherwise be permitted to travel (either domestically or internationally) with the child in the event of an emergency or grievance with such travel not to be included as part of the six weeks permitted travel per year pursuant to Order 13 herein.
15.That the non-travelling party have an additional two nights make-up time immediately upon the travelling party and the child returning from their trip.
16.If either party (or a nominated adult as agreed between the parties in writing) intends to travel internationally with the child (save for travel in the event of an emergency of grievance) the following applies:
16.1.The travel shall occur during that party’s time with the child unless otherwise agreed;
16.2.The travelling party shall provide the other party with no less than 14 days’ notice in writing of the intended travel; and
16.3.The travelling party shall provide the other party with the following information no less than 14 days prior to departure:
16.3.1.A full itinerary including all details as to the travel dates, locations, accommodation and contact details for the child for the duration of the travel;
16.3.2. A copy of the return air tickets for the child; and
16.3.3.Scheduled times as to when the non-travelling party can communicate with the child by way of telephone, Skype or other electronic means.
17.The parties are to ensure that the child has a valid New Zealand and Australian passport at all times.
18.The child’s New Zealand passport is to remain with the Mother and the child’s Australian passport is to remain with the Father.
The father’s proposal had a different focus. It was as follows –
12.Until the child commences primary school, the parents be permitted to travel (domestically or overseas) with the child as follows:
12.1.That the Mother be permitted to travel (domestically or overseas) with the child up to 6 weeks per year. Each trip is for a maximum of 2 weeks and a minimum 4 weeks is required between trips except. The Father to have an additional 2 nights make-up time immediately after each trip.
12.2.That the Father be permitted to travel (domestically or overseas) with the child up to 6 weeks per year. Each trip is for a maximum of 2 per weeks and a minimum 4 weeks is required between trips. The Mother to have an additional 2 nights make-up time immediately after each trip.
13.After the child commences school any travel shall occur during that party’s time with the child during school holiday periods unless otherwise agreed in writing.
15.If either party intends to travel internationally with the child, the following applies:
15.1.The travel shall occur during that party’s time with the child unless otherwise agreed;
15.2.The travelling party shall provide the other party with no less than 14 days’ notice in writing of the intended travel; and
15.3.The travelling party shall provide the other party with the following information no less than 14 days prior to departure except for in the circumstances of emergency travel
15.3.1.A full itinerary including all details as to the travel dates, locations, accommodation and contact details for the child for the duration of the travel;
15.3.2.A copy of the return air tickets for the child; and
15.3.3.Scheduled times as to when the non-travelling party can communicate with the child by way of telephone, Skype or other electronic means.
Both proposals recognised an adjustment in time to take into account how the child would be denied time with one parent when the child was travelling so both proposals introduced make-up time.
In certain respects the father’s proposal was difficult to follow as it made no grammatical sense. I have read his proposal with what I believe he was intending to convey in mind.
The father’s proposal for the child’s travel had at its core the concept that travel, once the child started school, was to be on the time of the parent who had time with the child. That seemed to me to be fair. It enabled more structured planning to be undertaken.
The arrangements for passports were the same. They therefore are consent orders.
In my view the father’s proposal was to be preferred. I make orders in those terms. I also make orders in terms of paragraphs 17 and 18 of the mother’s proposal, mirror images appearing at paragraphs 16 and 17 of the father’s proposal.
Child maintenance
The mother sought an order for child maintenance. It was as follows –
19.That until the Mother obtains permanent full-time employment or the expiration of six months (whichever the sooner), there be a Departure Order pursuant to s. 118 of the Child Support (Assessment) Act 1989 (Cth) and that the Father pay to the Mother the sum of $780 commencing on 8 May 2020 and weekly thereafter.
20.That the day to day costs of the child are to be shared equally between the parties with these including but not limited to clothing, medical expenses, glasses and extra-curricular activities which have been agreed upon by the parties.
21.Any other discretionary costs incurred by the parties while the child is in their respective care, including but not limited to holidays, private school fees and related expenses, and extra-curricular activities which have not been agreed upon by the parties, are to be met by the party who has incurred those expenses.
No argument was heard on point. If the mother wishes to pursue that application she can do so on proper notice supported by proper material.
Liberty to revise
The mother proposed a most peculiar arrangement. It was as follows –
22.That the parties be at liberty to revise these Orders once per year each September to allow for any changes in relation to the development of the child.
23.In the event that the parties are unable to reach an agreement as to any variations to these Orders, the parties will continue to spend time and communicate with the child in accordance with these Orders.
The parties are always at liberty to agree among themselves for any beneficial regime that promotes the best interests of the child. Good parenting says as much. I will not make orders as proposed by the mother in paragraphs 22 and 23 of her proposals. The parents must engage in cooperation.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 2 June 2020.
Associate:
Date: 2 June 2020
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