White & Andrews (No. 2)

FAMILY COURT OF AUSTRALIA

WHITE & ANDREWS AND ANOR (NO. 2)

[2007] FamCA 1414

FAMILY LAW – CHILDREN - Family violence - Risk

Family Law Act 1975 (Cth)

APPLICANT:

Ms White

RESPONDENT:

Mr Andrews

INTERVENOR:

Mr H & Ms M and Department of Education and Early Childhood Training

INDEPENDENT CHILDREN’S LAWYER:

James Bult

FILE NUMBER:

MLF

4337

2002

DATE DELIVERED:

26 October 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

8 - 12 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Devine

SOLICITOR FOR THE APPLICANT:

Women's Legal Service

COUNSEL FOR THE RESPONDENT:

Mr Pinner

SOLICITOR FOR THE RESPONDENT:

Jeanne Gorman

COUNSEL FOR THE INTERVENOR:

Ms Symons

SOLICITOR FOR THE INTERVENOR:

DLA Phillips Fox

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McCluskys

Orders

That all previous parenting Orders, including the order made by me on 12 October 2007, shall be discharged.

PARENTAL RESPONSIBLITY

That subject to paragraph 3 of these orders the husband and the wife shall retain equal shared parental responsibility for the child …, born … December 1999 (“the child”).
(Not by Consent) That in the event that the wife proposes to change the child’s religious upbringing or school:
(a)She shall inform the husband as to the details of her proposal in writing, by registered post;
(b)She shall arrange a telephone conference with an independent Mediator from Relationships Australia or like organisation, and give the husband at least 14 days’ notice of the arrangement in writing, by registered post;
(c)The parents shall each meet half of any fee incurred for the telephone conference;
(d)The parents’ discussion shall be child-focussed, non-derogatory, and conducted in good faith; and
(e)In the event that there is no agreement between the parents the wife shall have the sole responsibility to make the decision.

WHERE THE CHILD SHALL LIVE

That the child shall live with the wife.

SPENDING TIME WITH THE CHILD

That the husband shall spend time and communicate with the child as follows:
(a)(Not by Consent) During school term, each alternate weekend from 5.00pm on Friday until the commencement of school the following Monday (and in the event such Monday is a non-school day then such period shall be extended to the commencement of school on Tuesday morning), commencing 2 November 2007;
(b)During the school term holidays (being the term 1, 2, and 3 holidays) in 2008, from 5.00pm on the first Friday until 6.00pm on the second Saturday;
(c)(Not by Consent) Commencing in 2009 and thereafter, as follows:
(i)     from 5.00pm on the first Friday until 6.00pm on the second Saturday of the first term holidays;
(ii)    from 5.00pm on the first Friday until 6.00on the last Friday of the second term holidays; and
(iii)     Not during the third term holidays when the child shall remain with the wife;
(d)During each of the long summer holidays from 3.00pm on 25 December until 6.00pm on 2 January and from 10.00am on 20 January until 6.00pm on 26 January.
(e)On Father’s Day, if it falls when the child is not otherwise in the husband’s care, from 9.00am until 6.00pm, and if Mother’s Day falls when the child is otherwise in the husband’s care, his time with her shall be suspended from 9.00am until 6.00pm;
(f)On the child and the husband’s birthdays as follows:
(i)     For a period of two hours if it falls on a school day when the child is not otherwise in the husband’s care, from 5.00pm until 7.00pm;
(ii)    For a period of five hours if it falls on a non-school day when the child is not otherwise in the husband’s care, from 9.00am until 2.00pm;
(g)The husband’s time with the child shall be suspended on the child and the wife’s birthdays as follows:
(i)     For a period of two hours if it falls on a school day when the child is otherwise in the husband’s care, from 5.00pm until 7.00pm;
(ii)    For a period of five hours if it falls on a non-school day when the child is otherwise in the husband’s care, from 9.00am until 2.00pm;
(h)By email, webcam, or such other electronic means as may be available, and for this purpose the husband shall set up an email address for the child;
(i)At such other and further times as may be agreed between the parents in writing.
That each parent shall communicate with the child by telephone each Wednesday when the child is not in their care, between 6.00pm and 7.00pm, with each respective parent to initiate such calls to the child to a number provided by the other parent, and each parent shall do all things necessary to ensure that the child is available to speak with the other parent freely and uninterrupted.

CHANGEOVERS

That for the purposes of these orders, changeover between the parents shall occur as follows:
(a)Where changeover is not to occur at the child’s school such changeover shall occur at the front of the M Police Station;
(b)While the child attends at the P Primary School, where changeover is to occur at the child’s school the husband shall deliver the child to the gate (but shall not otherwise enter the school property);
(c)Upon the child attending any alternative school the husband shall deliver the child to such school at the commencement of the school day.

RESTRAINTS

That subject to paragraph 9 of these orders, the husband shall be and is hereby restrained from entering upon the P Primary school property.
That, while the child attends the P Primary School, the husband shall be at liberty to attend the child’s school sports day and annual concert.
That each of the parents, their servants and agents, shall be and are hereby restrained from abusing, insulting or otherwise denigrating the other parent (or that parent’s family) to or in the presence or hearing of the child, or from permitting any other person to do so.

INFORMATION PROVISIONS

That the husband shall provide to the wife at least 21 days’ written notice of his unavailability to spend time with the child during school holiday periods pursuant to paragraphs 5 (b) to (d), such notice to be via registered post.
(Not by Consent) That the husband shall provide to the wife at least 7 days’ written notice of his unavailability to spend time with the child during school term (or in the event of unforeseen emergency such notice as may be reasonably practicable), such notice to be by text message to the wife.
That in the event the husband is not available to spend time with the child for two or more consecutive occasions pursuant to these Orders, then the husband shall provide to the wife 21 days’ written notice of his intention, and his capacity to resume such time with the child, such notice to be via registered post.
That each of the parents shall keep the other advised, as soon as practicable, by text message of the following:
(a)Any change to their residential address or telephone contact details;
(b)Any serious illness or injury suffered by the child whilst in their respective care; and
(c)The name of any medical or health professional involved in the child’s care, together with details of any scheduled appointments for the child, AND each parent shall be at liberty to further discuss with such medical or health professional all issues relating to the child’s progress and treatment.
That while the child attends the P Primary School:
(a) The husband shall be at liberty to discuss by telephone, at times to be agreed, with the child’s respective teachers the child’s educational progress; and
(b) The wife shall request the school to provide to the husband copies of all newsletters, school reports, and copies of school photograph order forms.
That upon the child being enrolled at any alternative school, the wife shall authorise that school to provide to the husband, at his expense, copies of all information and material ordinarily provided to parents, and the husband shall be further at liberty to attend and participate in all events at the child’s school where parents are ordinarily invited.

TRAVEL

That the Airport Watch List Order made on 13 June 2003 and reconfirmed in the Orders of 30 August 2006 shall be discharged.
That the husband’s solicitors, as soon as practicable, shall arrange service of a sealed copy of these Orders upon the Australian Federal Police at La Trobe Street, Melbourne and upon the Marshal of the Family Court of Australia at Melbourne AND IT IS REQUESTED that the Australian Federal Police do all necessary things to remove the child’s name, from the Airport Watch List maintained at all entry and exit ports of the Commonwealth of Australia.
That the wife shall forthwith deliver the child’s passport to the Melbourne Registry of the Family Court of Australia to be held by the Court pending written further Order of the Court or consent by each of the parents for its release.
(Not by Consent) That at any time the wife shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in her care pursuant to these Orders, and the husband shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in his care pursuant to these orders from June 2009, provided that the husband actually accompanies the child.
That for the purpose of travel outside the Commonwealth of Australia pursuant to paragraph 20 of these orders, within 48 hours of the parent’s return to Australia the child’s passport shall be returned by that parent to the Melbourne Registry of the Family Court of Australia.
That in the event that either parent intends to travel outside the Commonwealth of Australia with the child, that parent shall provide to the other parent 21 days’ written notice by registered post of their intention to do so, including providing copies of the child’s return ticket, itinerary, intended dates, and the child’s contact details whilst overseas (AND IT IS NOTED that for the purpose of telephone communication pursuant to paragraph 6 of these orders, the parent travelling with the child shall be responsible for initiating telephone calls to the other parent at reasonable time on Wednesdays).
That in the event that either parent intends to travel interstate with the child, that parent shall provide to the other parent 14 days’ written notice by registered post of the intended travel dates, destination, itinerary and contact details.

OTHER

That each of the husband and wife shall be otherwise restrained from instituting any proceedings in any court pursuant to the Family Law Act 1975 (as amended) without having first obtained the leave of a court with jurisdiction under the Act.
That the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
That all existing applications be otherwise dismissed and the proceedings be otherwise removed from the list of cases awaiting final determination.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

COSTS

That all questions of costs shall be reserved for a period of 14 days and any party seeking costs serve a proposed application during that period and notify my Associate so that listing arrangements can then be made.

AND IT IS NOTED

A.That for the purpose of the child spending time with the husband pursuant to paragraph 5(a) herein, such alternating weekend arrangements shall resume on the first weekend of each school term.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as WHITE & ANDREWS

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4337 of 2002

Ms White

Applicant

And

Mr Andrews

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The child was 13 months’ old when her parents separated. She is now 7¾ years’ old. For much of the last 6 years her parents have litigated, in this court, in the Federal Magistrates’ Court, in intervention order proceedings in Magistrates’ Courts, and on appeal in the County Court, over at least 47 court days.
The mother currently has an intervention order against the father, effective until 2010. In addition, the Principal and Assistant Principal of the child’s school (P Primary School) obtained intervention orders against the father in 2005, effective indefinitely. They and the Department of Education are intervenors in these proceedings.
It is agreed that the child will continue to live with her mother.
There were numerous questions for me to decide when the case started. However, early in the hearing, during the evidence, and at the end of the evidence, many resolved, leaving only the following questions.
One: How can decisions be made in relation to the child’s education, and her religious upbringing, if the parents cannot agree?
The parents agree that they will retain joint responsibility in relation to major decisions. But the child’s education and religious upbringing have historically proven contentious.
The mother says that their communication is so poor, and the father so unco-operative, that she needs the sole responsibility in relation to those particular issues, after the father has given his views.
The father says that he is a loving and caring father who has a great deal to offer the child and that he should have meaningful input into those major decisions. By the end of the case, his Counsel seemed to concede that if the parties cannot reach an agreement, the wife shall make the decisions. I need to determine the detail of the best structure for the parties to try to reach agreements.
The Independent Children’s Lawyer (the ICL) agreed that the mother should make decisions if the parties cannot, and offered a useful proposal for how the issue of education could best be considered.
Two: Should the conclusion of the child’s alternate week-end time with her father be extended from Sunday evening, to either Monday or Tuesday morning?
The father currently collects the child at 5.00pm on alternate Fridays from outside the M police station, and returns her there at 6.00pm on Sunday evening.
The mother says that arrangement should continue because it is working successfully, and ensures that the father has no contact with the child’s school. To give the child more time with her father, she suggested it could be extended by 1.5 hours to conclude at 7.30pm on a Sunday.
The father says that the time should be extended so that he can deliver the child to school on a Tuesday. In the alternative, he asks that the time now be extended to Monday, then Tuesday in mid-2008.
The ICL agrees that the alternate week-end time should be extended, but to Monday not Tuesday morning. That accords with the child’s wishes.
Three: Should I make orders in any way restraining the school Principal and Assistant Principal, or limiting their movements, at times when the father would attend at the school?
The father wants to ensure that he is not provoked or made to feel uncomfortable by the Principal or Assistant Principal approaching or watching him if he delivers the child to or collects her from the school gate.
The ICL supports that, and proposes orders accordingly.
The Intervenors say I cannot make orders against them that will interfere with the intervention orders they have already obtained, and in any event I should not, as it would be untenable for them to be constrained in the exercise of their responsibilities. In addition, any such orders would be open to difficulties in interpretation and further litigation.
The mother does not support orders that would constrain the school staff in any way.
Four: When should the father be permitted to take the child on holiday to America?
The father says that his relationship with an American citizen, Ms Q, and work opportunities, will be taking him to the United States of America for some months each year and it is important that the child be able to share time with him there and to experience travel, from July 2008.
The mother says that the child is not yet old enough to travel for an extended period with her father, and she does not want to at present. The mother is also concerned that in the past the father twice failed to return the child promptly after holiday periods, and she is worried that he would retain the child out of Australia. She says the child should not travel overseas with her father until 2012.
The ICL does not support the travel until 2009, in light of the child’s view, and the expert opinion.
Five: For the purposes of various changes to arrangements, should the parents notify each other by text messages or email?
The father says that if the parents need to change any arrangements, email is easier than SMS, and has the advantage of providing a record. The ICL agrees with that.
The mother says text messaging has been working. She does not want to change it or open up new lines of communication that could be abused or lead to conflict.

BACKGROUND

The father is Mr Andrews. He is aged 42 (born in July 1965) and is unemployed. The mother is Ms White. She is aged 41 (born in August 1966) and is a teacher. She lives in a de facto relationship.
The parties married in January 1996. The child, a daughter, was born in December 1999. The parents separated on 8 January 2001 and divorced in May 2002.

MATERIAL RELIED UPON

The mother relied upon the following documents:
·Her further amended Form 1 application filed 25 June 2007
·Her affidavit filed 3 September 2007
·Her affidavit filed 27 February 2007.
The father relied upon the following documents:
·His further amended Form 1A response filed 7 March 2007
·His affidavit filed 7 September 2007
·The affidavit of Mr T filed 21 August 2007
·The affidavit of Mr W filed 7 March 2007 (not required for cross-examination)
·The affidavit of Mr S filed 7 March 2007 (he gave evidence by telephone link).
Mr H, Ms M and the Department of Education relied upon the following documents:
·The affidavit of Mr H filed 10 September 2007
·The affidavit of Ms M filed 10 September 2007
·The affidavit of BB filed 10 September 2007 (not required for cross-examination)
·The affidavit of JR filed 10 September 2007 (not required for cross-examination)
·The Letter of Trespass addressed to the father dated 18 February 2005.
The ICL relied upon the following documents:
·The affidavit of Mr P filed 17 January 2007 (annexing his expert report dated 16 November 2006)
·The affidavit of Mr P filed 29 July 2005 (annexing his report dated 3 March 2003 and 12 July 2005)
·The affidavit of Dr R filed 6 March 2007 (annexing psychiatric reports dated 28 February 2007).
Mr P gave evidence and was cross-examined. Dr R was not required for cross-examination.

RELEVANT LEGAL PRINCIPLES

Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act.
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations in determining best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. In certain circumstances it does not apply or may be rebutted.
The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), but it is not proposed by any party in this case.
If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in her best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)). “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(5) deals with the “reasonable practicability”.
Finally, the family violence provisions of the Act are relevant, first in considering best interests, and secondly as to orders sought that affect the Intervenors. I will deal with the provisions relating to that second aspect, below.

THE ISSUES

The questions I must determine have been set out above. They are straight-forward, particularly as they have narrowed, but the context is complex. The matters in s 60CC of the Family Law Act provide a useful frame-work in which to consider these questions.
I will first consider the primary considerations under s 60CC (2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The father agrees that the child will continue to live with the mother. It is implicit in his agreement that he accepts that the child’s close relationship with her mother is to her benefit.
The mother agrees that the child has a loving relationship with her father, and that it should continue.
Although this case has been bitterly fought, and although the orders I am asked to consider are important, in many ways they relate only to the margins of the meaningful and beneficial relationship that the child clearly shares with both her parents.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Much of the evidence focussed on this aspect, in terms of the need to make orders that will protect the child from being exposed to abuse, violence, or conflict, between her parents and/or her father and other adults.
For the past two-and-a-half years, there has not been a problem. There have been no open arguments or hostilities between the parents. Their communication has been absolutely minimal, confined to text messages necessary to the child’s arrangements. Change-overs have occurred without incident or argument in the street outside a police station. There have been no difficulties at all between the father and the child’s school. Just as the father has fully complied with the intervention order taken out by the mother, he has fully complied with the intervention orders taken out by Mr H and Ms M, and although he has had the right to attend at the school gate, he has not done so.
There were problems in the past, between the father and mother, and between the father and the school officers.
In her affidavit, the mother complained that the father was physically violent in the course of the marriage and verbally abusive towards her. She complained of his aggression and harassment after the marriage. She complained of threats made during telephone calls and verbal abuse during contact change-overs. She complained that he wrongly accused her of having various psychological problems, reported her to agencies such as the Road Authority, alleged she was conspiring with police against him, made false reports about her to her employers, and reported unfounded concerns about the child’s welfare to the authorities. She also alleged that he attended her house when he should not have.
Those matters were not aired in detail before me as they have been the subject of a Magistrates’ Court hearing resulting in an intervention order in June 2004, and an extension of that order after an unsuccessful appeal by the husband to the County Court of Victoria, heard over five days in May 2005.
The child commenced at P Primary on 31 January 2005. That day, the father wrote to the Principal. Although in his opening paragraph he said that he did “not want to come into any conflict with any member of your school fraternity, …” the letter was argumentative and angry in tone. Much of it was in capital letters, he referred to the child’s mother as “this woman”, and he suggested that the Principal should “let staff members to [sic] know that there is conflict in this matter and that the ex-wife will use any means to bring it into a legal arena…” before referring to her “devious manipulations”. It was clearly an inappropriate letter.
Mr H received the letter on 2 February 2005. The next day he received an angry call from the father who was cross that he had not yet received a reply. Mr H’s account was that the father became aggressive and threatening. He was not satisfied with the Principal’s assurances that the school would exercise an appropriate duty of care in looking after the child and according to Mr H, the father said he would hold the Principal responsible if anything happened to his daughter and that the Principal would “pay for it”.
Unfortunately, just two weeks later, on 17 February 2005, the child fell from the monkey-bars at school and broke her arm. She was immediately taken to a clinic and her mother was contacted. The child was treated at the Royal Children’s Hospital. The mother sent a message to the father to advise him of what had occurred.
The father contacted the school that afternoon. He was furious that he had not been contacted by them. The Principal explained that the school policy was to contact the primary care-giver. That is what he did, and in my view he contacted the appropriate parent in accordance with the existing court orders that made the mother responsible for the child’s day to day care on the day in question. I accept his evidence that he told the mother to make sure that she contacted the father. She did. In any event, Mr H swore that the father said that he would come to the school and “sort him out” and then he hung up. Mr H rang the police. It seems that at that point Mr H was made aware of an allegation that the father had breached an intervention order in relation to another complainant (not the wife), and he was concerned.
The next day, Friday 18 February 2005, Mr H posted a trespass letter to the father advising that he could no longer enter school grounds.
The father delivered the child to school on the morning of Monday 21 February 2005. He returned to collect her that afternoon. Mr H approached him to give him another copy of the trespass notice. He said that the father raised his voice, shouted at him, called him a “trumped up little twerp” (the father denied using the word “twerp”), and said that he would ignore Mr H and the letter. Mr H said that the father was repeating that the letter was “a joke” and that Mr H “would be sorry”. He said the father was gesticulating at close distance and was sneering with “mocking laughter”. Mr H says that the child was crouched under the stairs during this exchange.
On the following morning, 22 February 2005, the father again brought the child to school, but did not leave her there. There are different versions about that. The father’s account was that the child was very upset that he was not able to take her inside the school grounds to her classroom, and that she had begged him to take him with her and not leave her at school. The school rang her mother and the police were brought into the matter. Within a short time of a request by police, the father returned the child to her mother that morning.
Although the father denies acting in an inappropriate or threatening manner to the school officers – conceding only that he was “frustrated” or “disappointed” with them – these matters have also been aired in another court. The upshot of the Magistrates’ Court hearing, with an important impact on this case, is that long-term intervention orders were granted in favour of both Mr H and Ms M.
The father has struggled for a number of years with depression. He is clearly adversely affected by his background which he described in emotional terms as including sexual abuse as a child in the Catholic school system, the discovery that his own father had been sexually abusing his sisters, and the disappointment of a sporting career marred by serious injury.
The father has reason too to be frustrated by some of the mother’s conduct. Although she paints herself as the entirely reasonable party who has had to grapple with his unreasonable and aggressive behaviour (which without doubt is in part the truth), she has failed to recognise or admit her own contributions to the problems between them. The father would refer to various incidents to illustrate that. He is particularly aggrieved by an incident in which he says Mr L, a friend of the mother’s, broke into his house, and the father complains about a bungled police investigation – what he says was a police conspiracy involving the mother. I did not get to the bottom of that. In any event, there are two graphic examples of the mother’s contribution to the parties’ difficulties, arising more directly from her dealings with him.
In late-2004, while the child was attending the P Child Care Centre, the mother had child care staff serve the father with family law documents. The child care centre ultimately apologised to him, but he clearly felt humiliated and embittered that the child’s carers had been brought into his personal affairs in that way, and that he was thus presented to them as an ogre by the child’s mother. The mother’s behaviour in instigating that was unreasonable. Along a similar vein, it is apparent from some earlier orders that the mother on one occasion had the child deliver court documents to her father. That was clearly provocative behaviour, or at the very least thoughtless and inappropriate, and likely to inflame and excite the father.
Another illustration of the mother’s conduct that was destined to cause the father frustration, irritation, and anger, related to the choice of the child’s school. The original contested proceedings before Rowlands J had culminated in financial and children’s orders made in April and December 2004. It is not entirely clear why the orders were spread over that period, particularly as the hearing was completed in 2003, but it is immaterial for current purposes. Those orders provided:
That the wife be at liberty to enrol the child at a Catholic school chosen by the wife in consultation with the husband and to raise and educate the child according to the Catholic faith and the parties otherwise retain joint responsibility for the decisions relating to the long-term care, welfare and development of the child.
I accept that the mother, a Catholic, who works in the Catholic school system, had keenly sought the opportunity to have the child attend a Catholic school. The father had certain sensitivities and sensibilities that needed to be considered given the abuse he had suffered. For that reason the orders had gone on to reflect that prior to the child starting school the mother would confidentially inform the child’s teacher or teachers and the school Principal about that, and request particular sensitivity in their care of the child in relation to that issue.
Curiously, in the course of 2004, while those orders were recent and current, the mother enrolled the child in P Primary School. She advised the father of that. Although she says that she clearly “consulted” with him as she was required to do, by asking him if he had other suggestions, she overlooks her high-handed approach in presenting to him in a reasonably fait accompli manner that she had chosen this government school. There was absolutely no explanation for her change of heart. And there was no reassurance that she had spoken confidentially of the father’s concerns as envisaged by the existing orders. That provided an unfortunate backdrop to the father’s first dealings with the child’s school.
There is no doubt that P Primary, through its senior staff, most likely added to the father’s frustration and anger. I accept from him that he did attempt to contact the Principal in the latter part of 2004 but his call was not returned. It may not have been brought to Mr H’s attention, but I accept that the father did seek to talk to the Principal, given his concerns about the child’s education and her mother’s conduct. I suspect he also had the heightened anxiety that, along with her leaving him out of any meaningful decision-making about the child’s school, the mother had a particular “in” with the staff, being a teacher herself. The level of mutual mis-trust between them would have fuelled his suspicions and anxieties.
In analysing the events at the start of the 2005 school year, I sympathise with the difficult role of the Principal and his over-riding responsibility to protect all his students and staff. I will deal with my view of the father’s conduct in a moment. Suffice it to say that the Principal should not have to tolerate such offensive behaviour. However, one way or another Mr H did not opt to appease the father or to address his concerns as he might have, before simply issuing the trespass notice. Mr H conceded as much in cross-examination - “with the benefit of hindsight”.
In fairness to the father, all these events occurred within an extremely short time-frame, no longer than three weeks, and he had taken the child to and collected her from school on a number of occasions in that time without any difficulties or confrontations of any kind. That may have given Mr H a base upon which to attempt to discuss issues with the father in a different way from how things proceeded.
Whilst bearing in mind the father’s difficult background, the irritations as he experienced them in the conflict with his wife, and what he perceived as an unreasonable lack of response to his concerns as expressed to the school, I must nevertheless conclude that his behaviour was inexcusable. He readily admits that he has an intimidating countenance. Although he generally conducted himself well in the course of this hearing, I saw instances in court of the sort of smirking, “eye-balling”, and gesticulating complained of by the wife and the staff. I saw pages of a communication book and his correspondence with the school. He spoke disdainfully about the child’s mother, and about the school officers.
The father could not concede that he had acted as a threatening bully. He showed no insight into the fact of his behaviour and its effect on other people. Given the chance to reflect again on the letter he sent to the Principal, he maintained that it was appropriate. He maintained that a particular doctor’s medical certificate dated 27 October 2003 was a “fake” although he could produce no evidence to that effect. He also maintained a “conspiracy” between the school and the mother.
On the positive side, the father has been consistent in seeking help from a psychologist, he has been compliant with treatment, and he has behaved well and appropriately and in compliance with intervention orders for more than two-and-a-half years. He has acted reasonably in the course of this case by conceding that the child is now happy and settled at P Primary School. He has shown the capacity to consider her needs ahead of his own by not pursing any application for her to change schools, despite his own uncomfortable relationship with that school. He did show some insight by saying that he thought it would be better if he did not enter the school. He saw that conflict could thus be avoided. He has also shown insight and co-operation in agreeing with the mother that the child should start Little Athletics, and he has ensured that she has attended each second week-end when she is with him. These aspects, and most fundamentally, the child’s attachment to him, and her desire to spend more time with him, auger well for the future and a finding that she is no longer exposed to the abuse or violence of earlier times. At the heart of this case is the need for orders that will best maintain and promote that position.
I now turn to the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The Family Report writer noted that in the midst of all the past conflict, the child presented very well. She understood the reason for meeting with Mr P and told him that her parents were “not friends, that they don’t talk and that all they do is argue.”
As to her relationship with her father, Mr P noted (at page 8 of his November 2006 report):
[The child] enjoys the contact with her father, values the relationship, wants to see him, but clearly perceives her mother as her primary carer. She told me that it’s good to see her father, that she enjoys seeing him and spending time with him, that she misses him when she is not with him, but that the same is also true for her mother.
The child described each of her parents to Mr P in very positive terms, as well as her expectation that she would see both of them regularly, and that they would both fulfil a very positive and continuing role in her life. She recognised that home was predominantly with her mother but she told Mr P that she also loved her father, and wanted to see more of him.
The ICL interviewed the child in May 2007. The child told her that she wanted to stay with her father until Monday morning and then have him return her to school. She said she did not want to travel overseas with him until she is nine (in 2009).
In evidence, Mr P said that whilst the child’s views should not be the sole determinant of outstanding issues, in matters where all things are equal, her views and comfort level should carry weight.

(b)the nature of the relationship of the child with:

(i)     each of the child’s parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)   any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The father does not challenge the arrangements whereby the child lives with her mother. It is implicit that he recognises the mother cares very well for their daughter.
Mr P observed, in noting that the child is a happy, well-adjusted child who is going well at school and with her peers, that a good deal of credit must lie with her mother, with whom she has always lived, including for up to several months each year while the father is away in America. And she cares for the child without any significant financial support from the father who is assessed to pay the minimum child support contribution of about $21 per month.
I have already criticised the mother for being too unilateral in her choice of the child’s school. However, it is a school about which the husband does not take issue, and in which the child is progressing well. The mother is thoughtful about her daughter’s education. In addition, the mother protects and cares well for the child overall, and it is obvious that despite the profound ill-will between the parents, in her mother’s house-hold the child has been emotionally free to enjoy and love her father. There is ample proof of that in that she has not been enlisted in her parents’ battle.
It is also fair to note that despite ill-will between the parents, and some very unimpressive conduct on his part in the past, the father overall meets the child’s physical and emotional needs very well. The proof of that is her affection for him and her desire to spend more rather than less time with him.
(c)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;
In my view both parties have acted in ways which show disrespect for the other’s role in the child’s life, and their capacity to communicate is virtually non-existent.
The father’s bitterness towards the mother is obvious. In correspondence and in his evidence he called her “that woman”, “this woman”, “the ex-wife”, or by her complete first and last name. He found it difficult to say anything very positive about her. He has acted rudely towards her. That is obvious from extracts of communication books tendered in evidence. And he has responded angrily and inappropriately, for example when the child broke her arm in the school-yard mis-hap referred to above.
It is obvious too that the mother has at times failed to respect the father’s role in the child’s life, as graphically portrayed by her approach to the choice of schooling, and using the child to serve court documents as set out above.
I note there have been some contravention proceedings in the past and the father is critical of the mother for not following orders, as she is critical of him for failing to return the child on time at the end of two Christmas holiday periods. Still, overall, both parties have complied with orders.
As Mr P observes, the child appears to be coping well, negotiates between her parents comfortably and has a good relationship with both of them separately. Some credit must lie with each of them in managing not to undermine the other’s relationship with her.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is not a significant consideration in this case, given the relatively minor changes that are envisaged by the parties. The most significant potential change is an extension of the child’s time with her father. I am satisfied that the child does want more time with him.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a significant issue in this case.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Although the orders made by Rowlands J in 2004 envisaged an increasing time with her father, so that by the start of her school year in 2005 she was to be with him each alternate week-end until Tuesday morning, those orders went off the rails for the reasons set out above. Rather than dwelling on what was envisaged by orders then, I must consider what the child needs now, bearing in mind her growing maturity along with all other matters.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
(j)any family violence involving the child or a member of the child’s family;
This has already been dealt with.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have already discussed this aspect in detail above. I must not overlook the existing family violence orders in structuring the orders I make. In any event, it is imperative for the child that she is free from adult conflict and much of the evidence has concentrated on ways to ensure that she is not subjected to conflict between her parents and/or other adults.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In addition to protracted intervention order proceedings, the history of family law litigation includes 27 court orders (many interim) in either this or the Federal Magistrates’ Court, two applications by the wife for final orders, one application by her for contravention, and four lots of contravention applications initiated by the husband.
At the start of the hearing the mother sought an order that each party be restrained from bringing any further proceedings for three years without the leave of a court. The ICL supported the order. In the course of the evidence, the father agreed. Upon his suggestion, the ultimate agreement was for the restraint to be long-term, rather than limited to a period of only three years.
It is a good idea. It will be incorporated into the orders below, making it clear that it will relate to any proceedings under the Family Law Act in any court with jurisdiction under the Act.

CONCLUSION

I must determine the five questions as set out at the start, in the light of the child’s best interests informed by the considerations above.
One: How can decisions be made in relation to the child’s education, and her religious upbringing, if the parents cannot agree?
As noted above, the existing orders from 2004 maintain the parties’ joint responsibility for major issues, referred to then as “long-term care, welfare and development” although the wife was given the decision-making authority to raise and educate the child in the Catholic faith, and send her to a Catholic school. That decision was arrived at after trial.
The father’s case was that the parents should remain equally responsible for major decisions in relation to the child, including religion. However the evidence did not support any reason for a significant change to the existing order in relation to the child’s religion. In any event, by the end of the case there was no real argument against the mother continuing to make decisions about her religious upbringing. The orders proposed by the ICL, and adopted by the mother, for the mother to continue to make those decisions after consultation with the father, did not appear to be opposed by the father.
By the end of the case, there also appeared to be a consensus that if the parents could not agree about a choice of school for the child at any time in the future, the mother should decide. Mr P’s evidence was clear that if there could be no agreement, obviously enough one person had to make a choice, for the child’s sake. It is not unreasonable that it is the mother in this case. First, the child lives with her. Secondly, she is a teacher. And her desire to make the best choices for the child in this regard was not seriously questioned. The focus in the final submissions of counsel for the husband turned to the appropriate form of the order.
I am persuaded that it is appropriate for the mother to make the decision for any change to the child’s school, but only in the event that the parents cannot agree. For the opportunity to agree, the parents need proper structures in place. They cannot communicate. A mechanism is required to ensure that the mother provides adequate notice and material to the father, so that he can provide the benefit of an informed and reasoned opinion, politely and effectively. It must ensure that he does not with-hold his decision unreasonably, while also offering him the assurance that his view will be heard and considered by the mother. That would maximise the possibility of a joint decision, or if there is no agreement, it would enable the mother to decide promptly and without rancour between them.
As the final submissions in this case progressed, a loose consensus evolved that effective and proper consultation could best be achieved in the presence of a mediator who could ensure that each party is able to express a view. In the light of the existing intervention order, and without needing to make any finding as to whether it is necessary or otherwise, I accede to the mother’s request that such meeting occur by way of telephone – a manner of conducting such meetings which is not uncommon in family law matters, and with which an experienced mediator will be familiar. I will add that to the form of wording proposed by the ICL, and any fees of the mediator shall be met by the parents in equal shares.
Two: Should the conclusion of the child’s alternate week-end time with her father be extended from Sunday evening, to either Monday or Tuesday morning?
I am satisfied that the child’s alternate week-end time with her father should be extended. Presently it ends on Sunday evening. When the parties first litigated before Rowlands J they clearly envisaged that the child’s contact with her father would be longer than that. Events intervened. In the light of those events, including the father’s behaviour and the intervention orders, it is entirely understandable that the time was truncated. But that was more than two-and-a-half years ago now.
The mother’s argument is that change-overs have occurred peacefully since then and that is in the child’s best interests. She is concerned that the chaos that reigned at the start of the child’s school life should not resume. She is concerned that if the father returns to the school gate, he is likely to be unable to control himself and the child again will be exposed to conflict and abuse. In my view there are a number of features that can allay those concerns.
Time has elapsed. Although the intervention orders have permitted the father to attend outside the gate of the school, he has sensibly absented himself altogether. He has the insight to now volunteer that he will not seek to take the child into her classroom, although that is what the child has wanted. The child was clear in her wishes to both Mr P and the ICL that she wants her time with her father extended to Monday morning. In Mr P’s opinion, her views should be respected in this regard, and Mr P particularly favours the Monday school drop-off so that the parents are brought into contact with each other as little as possible.
The father has experienced the wrath of the law and a dramatic reduction in his time with his daughter because of the issues at the school at the start of 2005. He clearly adores the child and he will not want to jeopardise his relationship with her or the time that he spends with her. I am satisfied too that Mr H and Ms M are keen to avoid any conflict, but I will return to that.
The mother’s offer to increase the child’s time with her father until 7.30pm on Sunday night is an inadequate answer to the child’s request for more time, for the reasons given by Mr P. Extending the time until after the week-end enables them to engage in more “normal” week-end activities, and means that Sunday can be a long and relaxing day without the need to pack up and be interrupted. It also allows him to get the child ready for school, and to help her with home-work.
I propose following the expert opinion and the ICL’s proposal that the time the child spends with her father shall finish on Monday rather than Tuesday morning. She is comfortable with that. I agree with the ICL that I cannot speculate and project into the future with orders now to extend that. I agree with the ICL that when the Monday is a public holiday or pupil-free day, the child should stay with her father until Tuesday morning.
Three: Should I make orders in any way restraining the school Principal and Assistant Principal or limiting their movements, at times when the father would attend at the school?
The ICL proposes orders restraining Mr H and Ms M from “approaching, communicating, or otherwise interacting with the husband” at school change-over times, and otherwise as far as practicable, absenting themselves from the gate “at times when the husband is to deliver (or collect) the child from such location pursuant to these orders.”
The intervenors oppose the orders, arguing first that they go beyond the jurisdiction of the court. It was submitted that Divison 11 of the Act deals with the relationship between parenting orders and family violence orders, and empowers the court, in appropriate circumstances, to make orders inconsistent with an existing family violence order. It was submitted that the power must be informed by s 68N and s 68Q of the Act which, when read together, indicate that the object of Division 11 is to regulate the interface between family violence orders on the one hand, and on the other, orders that provide for a child to spend time with a person. The intervenors submitted that Division 11 does not empower the court to make orders which operate as a restraint on adult third parties extraneous to the relationship between adult and child.
The ICL submitted that such orders can in fact be made and provided a CCH commentary about that.
Upon reflection, this is not an issue with which I need grapple because I have decided in any event that, on balance, I would not make the orders proposed by the ICL, or orders in any way relating to Mr H and Ms M, as canvassed in the course of proceedings. In the course of the evidence I did raise the prospect of an order, or even a notation, to the effect that as far as practicable, those officers would avoid being in the immediate vicinity of the father at drop-off times. I raised that with all parties, in response to a concern expressed by the husband that he might be made to feel uncomfortable if he now delivers the child to school.
With the benefit of all the evidence, I am satisfied that any such order would potentially lead to uncertainty and difficulty in interpretation. The school grounds are very small. The Principal’s office is not far from the gate. The Principal’s role (and to a lesser extent Ms M’s) requires him to oversee all that is happening, circulate in the school grounds, and to be available to attend any part of the school. Moreover, I am satisfied that neither Mr H nor Ms M has any intention or desire to cause any problems for the child. They sought intervention orders specifically so as to have no contact at all with her father. Their evidence satisfies me that they are comfortable with that. Their evidence satisfies me that they do not wish to provoke any discomfort for the little girl in their charge. And the father can be comforted by Mr H’s very reasonable concession in the witness box that with the benefit of hindsight there might have been room for him to handle things differently in his past dealings with the father. All that, combined with the father’s expressed wish for no further trouble, and the motivation for him to ensure that things go smoothly for the child so that her trust in and security with him is in no way undermined, satisfies me that no orders should be made in this regard.
Mr P offered sound professional advice from the witness-box. If the child asks her father to go with her into the school grounds, he should answer simply that he cannot. And leave it at that.
Four: When should the father be permitted to take the child on holiday to America?
The father proposes to continue spending several months in America each year. He intends to pursue his relationship with Ms Q, and to work there as well. He wants the child to enjoy the experience, an experience he says she tells him she wants. He suggests that the first trip should be in the July holidays in 2008. The mother does not want it to occur until 2012, saying that the child would be older then and more capable of coping and responding if her father tried to keep her out of Australia. The ICL suggests that the first trip should be in 2009, in line with the child’s wishes expressed to the ICL. Mr P supported giving weight to the child’s wishes and her level of comfort in this regard.
The mother refers to two Christmas holiday periods in the past (in 2004 and 2005) when there were issues surrounding the child’s return. They were set out in her affidavit, although the evidence did not focus on them. They were historical. Although I cannot countenance any flouting of orders, the incidents described by the mother, and the incident on 22 February 2005 when the father left the school with the child, cannot lead to a finding that there is an unacceptable risk of abduction.
I am sympathetic to the mother, that in an atmosphere of mutual mis-trust, the vagueness of the father’s proposals as to his relationship and his work in America, does leave question marks. I cannot be certain as to whether his proposals lack clarity simply because they are evolving, or because he was being coy about financial matters, in light of his disability pension and his minimum child support payments. In any event, her expressed concern that he would fail to return with the child was undermined by her agreement that he could take the child in several years’ time, and I note that although I raised the topic with her counsel in final submissions, she was not seeking any security to be left in Australia.
The father undoubtedly loves the child. Despite his negative feelings towards her mother, he seems to understand that the child loves and needs her mother. That understanding must have informed and underpinned his decision not to challenge the living arrangements with her. He must understand that the stakes for him are very high. If the child is able to travel with him, and to enjoy the adventures he promises, his relationship with his daughter will be greatly enriched. He must understand that her trust in and love for him could only be undermined if he tried to keep her away from her mother. He has indicated in the strongest terms that he simply wants her to enjoy the interesting things to see and experience on holiday with him, just as she has had and will continue to have that opportunity with her mother.

In my view that is appropriate and in the circumstances of the child’s expressed view, it should occur first in 2009 when she is 9½. To that end, the husband shall be able to spend time with the child for the whole of the July school holiday period but not in the September holidays when her mother will have the chance for a holiday with her.
Five: For the purposes of various changes to arrangements, should the parents notify each other by text messages or email?
This is a very small issue. It is difficult only because each parent’s argument has merit. The father says that he finds it easier to use a computer keyboard than the small keys on a telephone, and that email has the advantage of providing a lasting record. The mother says that text messaging has worked for more than two-and-a half years without any difficulties between the parents. No other method of communication has offered that success. She does not want to open a new channel of communication with the risks of a return to the rancour and conflict of previous years. The ICL favoured emails, particularly as they provide a record.
On balance, I propose leaving the communication method as it currently is. There was no evidence before me that text messaging has been in anyway problematic, or other than successful. Other methods of communication have failed. These orders will provide for a different channel of communication for the important major decisions, and for substantial changes to arrangements, or to advise of travel plans and details. Only relatively minor or urgent matters should require communication beyond that. Text messages are adequate and appropriately immediate in those circumstances.

THE ORDERS

I will set out the orders I propose, subject to any submissions as to form. Paragraph 19 of the orders deals with the child’s passport being deposited at the court. In fact, I made such an order at the end of the hearing. I have discharged that earlier order, so as to provide the parties with one complete set of orders.
BY CONSENT
1.That all previous parenting Orders, including the order made by me on 12 October 2007, shall be discharged.
PARENTAL RESPONSIBLITY
2.That subject to paragraph 3 of these orders the husband and the wife shall retain equal shared parental responsibility for the child born in December 1999.
3.(Not by Consent) That in the event that the wife proposes to change the child’s religious upbringing or school:
(a)    She shall inform the husband as to the details of her proposal in writing, by registered post;
(b)    She shall arrange a telephone conference with an independent Mediator from Relationships Australia or like organisation, and give the husband at least 14 days’ notice of the arrangement in writing, by registered post;
(c)    The parents shall each meet half of any fee incurred for the telephone conference;
(d)    The parents’ discussion shall be child-focussed, non-derogatory, and conducted in good faith; and
(e)    In the event that there is no agreement between the parents the wife shall have the sole responsibility to make the decision.
WHERE THE CHILD SHALL LIVE
4.That the child shall live with the wife.
SPENDING TIME WITH THE CHILD
5.That the husband shall spend time and communicate with the child as follows:
(a)    (Not by Consent) During school term, each alternate weekend from 5.00pm on Friday until the commencement of school the following Monday (and in the event such Monday is a non-school day then such period shall be extended to the commencement of school on Tuesday morning), commencing 2 November 2007;
(b)    During the school term holidays (being the term 1, 2, and 3 holidays) in 2008, from 5.00pm on the first Friday until 6.00pm on the second Saturday;
(c)    (Not by Consent) Commencing in 2009 and thereafter, as follows:
(i)from 5.00pm on the first Friday until 6.00pm on the second Saturday of the first term holidays;
(ii)from 5.00pm on the first Friday until 6.00on the last Friday of the second term holidays; and
(iii)Not during the third term holidays when the child shall remain with the wife;
(d)    During each of the long summer holidays from 3.00pm on 25 December until 6.00pm on 2 January and from 10.00am on 20 January until 6.00pm on 26 January.
(e)    On Father’s Day, if it falls when the child is not otherwise in the husband’s care, from 9.00am until 6.00pm, and if Mother’s Day falls when the child is otherwise in the husband’s care, his time with her shall be suspended from 9.00am until 6.00pm;
(f)     On the child and the husband’s birthdays as follows:
(i)For a period of two hours if it falls on a school day when the child is not otherwise in the husband’s care, from 5.00pm until 7.00pm;
(ii)For a period of five hours if it falls on a non-school day when the child is not otherwise in the husband’s care, from 9.00am until 2.00pm;
(g)    The husband’s time with the child shall be suspended on the child and the wife’s birthdays as follows:
(i)For a period of two hours if it falls on a school day when the child is otherwise in the husband’s care, from 5.00pm until 7.00pm;
(ii)For a period of five hours if it falls on a non-school day when the child is otherwise in the husband’s care, from 9.00am until 2.00pm;
(h)    By email, webcam, or such other electronic means as may be available, and for this purpose the husband shall set up an email address for the child;
(i)     At such other and further times as may be agreed between the parents in writing.
6.That each parent shall communicate with the child by telephone each Wednesday when the child is not in their care, between 6.00pm and 7.00pm, with each respective parent to initiate such calls to the child to a number provided by the other parent, and each parent shall do all things necessary to ensure that the child is available to speak with the other parent freely and uninterrupted.

CHANGEOVERS

7.That for the purposes of these orders, changeover between the parents shall occur as follows:
(a)    Where changeover is not to occur at the child’s school such changeover shall occur at the front of the M Police Station;
(b)    While the child attends at the P Primary School, where changeover is to occur at the child’s school the husband shall deliver the child to the gate (but shall not otherwise enter the school property);
(c)    Upon the child attending any alternative school the husband shall deliver the child to such school at the commencement of the school day.

RESTRAINTS

8.That subject to paragraph 9 of these orders, the husband shall be and is hereby restrained from entering upon the P Primary school property.
9.That, while the child attends the P Primary School, the husband shall be at liberty to attend the child’s school sports day and annual concert.
10.That each of the parents, their servants and agents, shall be and are hereby restrained from abusing, insulting or otherwise denigrating the other parent (or that parent’s family) to or in the presence or hearing of the child, or from permitting any other person to do so.

INFORMATION PROVISIONS

11.That the husband shall provide to the wife at least 21 days’ written notice of his unavailability to spend time with the child during school holiday periods pursuant to paragraphs 5 (b) to (d), such notice to be via registered post.
12.(Not by Consent) That the husband shall provide to the wife at least 7 days’ written notice of his unavailability to spend time with the child during school term (or in the event of unforeseen emergency such notice as may be reasonably practicable), such notice to be by text message to the wife.
13.That in the event the husband is not available to spend time with the child for two or more consecutive occasions pursuant to these Orders, then the husband shall provide to the wife 21 days’ written notice of his intention, and his capacity to resume such time with the child, such notice to be via registered post.
14.That each of the parents shall keep the other advised, as soon as practicable, by text message of the following:
(a)    Any change to their residential address of telephone contact details;
(b)    Any serious illness of injury suffered by the child whilst in their respective care; and
(c)    The name of any medical or health professional involved in the child’s care, together with details of any scheduled appointments for the child, AND each parent shall be at liberty to further discuss with such medical or health professional all issues relating to the child’s progress and treatment.
15.That while the child attends the P Primary School:
(a)    The husband shall be at liberty to discuss by telephone, at times to be agreed, with the child’s respective teachers the child’s the child’s educational progress; and
(b)    The wife shall request the school to provide to the husband copies of all newsletters, school reports, and copies of school photograph order forms.
16.That upon the child being enrolled at any alternative school, the wife shall authorise that school to provide to the husband, at his expense, copies of all information and material ordinarily provided to parents, and the husband shall be further at liberty to attend and participate in all events at the child’s school where parents are ordinarily invited.

TRAVEL

17.That the Airport Watch List Order made on 13 June 2003 and reconfirmed in the Orders of 30 August 2006 shall be discharged.
18.That the husband’s solicitors, as soon as practicable, shall arrange service of a sealed copy of these Orders upon the Australian Federal Police at La Trobe Street, Melbourne and upon the Marshal of the Family Court of Australia at Melbourne AND IT IS REQUESTED that the Australian Federal Police do all necessary things to remove the child’s name from the Airport Watch List maintained at all entry and exit ports of the Commonwealth of Australia.
19.That the wife shall forthwith deliver the child’s passport to the Melbourne Registry of the Family Court of Australia to be held by the Court pending written further Order of the Court or consent by each of the parents for its release.
20.(Not by Consent) That the wife shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in her care pursuant to these Orders and the husband shall be at liberty to travel outside the Commonwealth of Australia with the child during periods when the child is in his care pursuant to these orders, from June 2009.
21.That in the event that either parent intends to travel outside the Commonwealth of Australia with the child, that parent shall provide to the other parent 21 days’ written notice by registered post of their intention to do so, including providing copies of the child’s return ticket, itinerary, intended dates, and the child’s contact details whilst overseas (AND IT IS NOTED that for the purpose of telephone communication pursuant to paragraph 6 of these orders, the parent travelling with the child shall be responsible for initiating telephone calls to the other parent at reasonable time on Wednesdays).
22.That in the event that either parent intends to travel interstate with the child, that parent shall provide to the other parent 14 days’ written notice by registered post of the intended travel dates, destination, itinerary and contact details.

OTHER
23.That each of the husband and wife shall be otherwise restrained from instituting any proceedings in any court pursuant to the Family Law Act 1975 (as amended) without having first obtained the leave of a court with jurisdiction under the Act.
24.That the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
25.That all existing applications be otherwise dismissed and the proceedings be otherwise removed from the list of cases awaiting final determination.
26.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

AND IT IS NOTED
B.That for the purpose of the child spending time with the husband pursuant to paragraph 5(a) herein, such alternating weekend arrangements shall resume on the first weekend of each school term.

I certify that the preceding one hundred & sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 26 October 2007

[2007] FamCA 1414

26 October 2007

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