Wiley and Kirk
[2014] FCCA 961
•27 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILEY & KIRK | [2014] FCCA 961 |
| Catchwords: FAMILY LAW – Parenting – final hearing – consideration of what live with and spend time with orders are in young child’s best interest. |
| Applicant: | MR WILEY |
| Respondent: | MS KIRK |
| File Number: | PAC 5349 of 2012 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 10 - 11 April 2014 |
| Date of Last Submission: | 11 April 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 27 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Koffels Solicitors & Barristers |
ORDERS
Discharge all prior parenting orders.
Discharge orders 16 – 20 of the Orders made on 5 February 2013.
The parties shall have equal shared parental responsibility for X born (omitted) 2011 (“X”).
X shall live with the mother.
X shall spend time with the father as follows:
(a)Until the beginning of Term 2 in 2016 each alternate weekend from 9am Saturday to 5pm Sunday commencing 7 June 2014;
(b)Until X begins Kindergarten in 2016 each Wednesday from 2.30pm to 7.30pm;
(c)After 30 June 2015 for the first four (4) days of each school holiday period commencing 9am on the second Saturday of each gazetted school holiday to 5pm the following Wednesday;
(d)From the beginning of Term 2 in 2016:
(i)During school term time each alternate weekend from after school Friday to before school Monday commencing the first weekend of each school term;
(ii)During school term time each Wednesday from after school until 7.30pm;
(iii)For one half of each school holiday period alternating between the first half in years ending with an even number or zero ad the second half in years ending in an odd number; and
(iv)At such other times as the parties agree.
Until the mother has a New South Wales driver’s licence and a car the father shall collect or arrange the collection of X from the mother’s home or X’s school as is necessitated by the orders and return X or arrange his return to either the mother’s home or his school as necessitated by the orders.
Neither party is to travel internationally with X without the other parties written consent or by further order of this Court.
By agreement between the parties arrangements are to be made for X to be baptised into the (religion omitted) faith at a place and on a date at which both parties and their invitees can be in attendance.
X is to be enrolled and attend at the closest (religion omitted) school to the mother’s home that will accept X’s enrolment.
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Wiley & Kirk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5349 of 2012
| MR WILEY |
Applicant
And
| MS KIRK |
Respondent
REASONS FOR JUDGMENT
Ms Kirk (“the mother”) is a (country omitted) national, with permanent residency in Australia.
Ms Wiley (“the father”) is of (country omitted) heritage. He is an Australian citizen.
The mother speaks (country omitted) and English.
The father speaks English and (country omitted).
The mother’s parents live in (country omitted).
The father’s parents live in (omitted), in the State of New South Wales.
In June 2009 the parties started living together in (country omitted).
The parties married in Australia on (omitted) 2010.
The parties have one child, X who was born on (omitted) 2011 in Australia. He shares his parents’ cultural background and linguistic diversity.
Orders to be made by consent
The parties conducted the case on the basis that there would be an order for equal shared parental responsibility.
They both agreed there would be an order for X to be baptised in the (religion omitted) Church, into the (religion omitted) faith.
They both propose, if possible, the child would be enrolled into a (religion omitted) school. The father proposes (omitted) School in (omitted). The mother proposes a local (religion omitted) school in the (omitted) area.
Orders sought
The father seeks graduating parenting orders leading to an equal time order by January 2016.
The mother seeks parenting orders that have X and the father spending no overnight time together until X starts school which is expected to be in early 2016.
Between the final hearing and early 2016 the mother proposes a continuation of the interim orders made on 25 October 2013, which provide:
3. Pending further order the father shall spend time with the child, X born on (omitted) 2011, as follows:
a. For the period from 27 October 2013 up to and including 28 February 2014, each Sunday from 9.00am to 1.00pm and each Wednesday from 4.30 to 7.30pm.
b. As and from 5 March 2014 each Wednesday from 2.30pm to 7.30pm and each alternate Saturday from 9.00am to 5.00pm. Commencing 1 March 2014, each Sunday from 9.00am to 5.00pm.
4. Pending further order, at the beginning of each period the mother shall deliver the child to the father or the paternal grandmother at the front door of her residence at (omitted), NSW and the father shall return the child to the mother at the same place to the same address at the end of each period with the exception of the Wednesday pick up when the father will arrange for the paternal grandmother to collect the child at the location referred to above.
Issues
· What time should X spend with the father;
· What school should X be enrolled in; and
· Is the child’s name to remain on the Airport Watchlist administered by the Australian Federal Police so as to prevent the chid leaving Australia.
Documents relied on
Father
· The father’s Affidavit sworn 13 March 2014;
· Affidavit of Ms I sworn 14 March 2014;
· Affidavit of Mr P sworn 14 March 2014; and
· Affidavit of Dr L sworn 19 March 2014 (this Affidavit was read. Dr L was not required for cross examination).
Mother
· The mother’s Affidavit sworn 6 March 2014, 17 January 2013 and 23 October 2013; and
· Affidavit of Mr G sworn 6 March 2014.
A Family Report was prepared by Dr H dated 19 September 2013.
Chronology
(omitted) 1981
Father born in (country omitted)
(omitted) 1984
Mother born in (country omitted)
(omitted) 1985
Mother’s partner Mr G born in (country omitted)
1987/1988
Father and his family immigrate to Australia.
June 2009
Parties commence living together in (country omitted)
May 2010
Mother granted a working holiday visa to travel to Australia
(omitted) 2010
Parties marry in Australia
(omitted) 2011
Parties child X born in Australia
27 November 2012
Parties separate
28 November 2012
Father files Initiating Application
22 January 2013
Mother files Response
5 February 2013
Interim parenting orders made as follows:-
· Parties have equal shared parental responsibility;
· X to live with the mother;
· X to spend time with the father commencing 10 February 2013 every Sunday from 9am until 1pm and commencing 13 February 2013 every Wednesday from 4.30pm to 7.30pm, the father’s time with X to be supervised; and
· X’s name placed on the Airport Watchlist
25 October 2013
Orders made:
· Discharging Orders 5 – 15 and 21 of the Orders made 5 February 2013.
· Pending further order the father to spend time with the child:
From the period 27 October 2013 to 28 February 2014:
· each Sunday from 9am until 1pm; and
· each Wednesday from 4.30pm until 7.30pm
In the period from 5 March 2014:
· Each Wednesday from 2.30pm until 7.30pm;
· Each alternate Saturday from 9am until 5pm; and
· Each Sunday from 9am until 5pm.
No one brings into contention any of the chronology.
Evidence
Father
The father works as an (omitted).
He lives at (omitted) in the former matrimonial home which he now owns, as a result of the parties property settlement.
He was an ‘old boy’ of (omitted) School at (omitted). He attends the (religion omitted) Church attached to that school in (omitted).
He proposes that X be placed on the waiting list to commence at that school in the beginning of the academic year 2016. He is certain X can secure a place at that school.
His home is close by to the home of his parents.
He concedes that the mother travelled from Australia to (country omitted) with X on three occasions prior to the parties’ separation. On two of those occasions being for two months from November 2011 and three weeks from June 2012 he did not travel to (country omitted) with the mother and X.
He believes that if the mother were permitted to take X to (country omitted) she would remain there and then she would be placed under family and cultural pressure to place X up for adoption.
He says the driving time from his home at (omitted) to the mother’s home in (omitted) during peak hour is about thirty minutes.
He says there is a direct train line from (omitted) to (omitted) and that the train travel takes about thirty minutes. He says it would be about a fifteen minute walk for X from (omitted) Station to (omitted) School if X attends that school.
In recent times he has noticed that X has had some nose bleeds. He puts this down to the fact that X has a habit of picking his nose.
He believes that he and the mother have a good level of communication about X and have been able to implement joint strategies for toilet training.
He thinks it is unlikely that X would be accepted in the (religion omitted) School at (omitted) even if placed on that waiting list.
He says that he does not discuss the mother with X at his home other than when returning X to the mother.
He says that X speaks and understands a mixture of (country omitted), English and (country omitted).
He is concerned that X is isolated from Australian culture in his mother’s home. The father proposes to overcome this isolation and to prepare X for school attendance by enrolling X in Day Care/ Pre School during some of the longer time periods that he seeks X spends with him.
He says that he has been diligent in taking up time that he is allowed to spend with X.
He says that he has observed that with the increase in the time that he and X spend together that X is more settled in his care, is less rushed and is able to have sleeps as needed.
He provides meals for X when X is with him. He assists with X’s toilet training.
He says that his workplace is at (omitted). He says that his ordinary hours of work are 8.30am to 4.30pm on Monday, Tuesday, Thursday and Friday. He says that he finishes work early on Wednesday but does not say what his actual hours of work are on Wednesday.
He says that his mother also finishes work early on a Wednesday and that she started to do so so as to be able to assist him in spending time with X. She collects X.
He pays child support as assessed currently in the sum of $157 per week.
He believes that the mother is somewhat isolated in Australia. Her family lives in (country omitted). He says that she is and remains a (country omitted) citizen and has told him in the past that she does not wish to lose that citizenship and so would not apply for Australian citizenship.
It is his belief that a Eurasian child in (country omitted) would be discriminated against.
Ms I
She is the paternal grandmother.
She works as a (omitted).
She lives with her husband in a home nearby to the father.
She described the mother as a nice woman with lots of talents.
She has assisted her son with X by agreeing to be a supervisor to comply with Orders made by the Court, and by assisting with X’s transportation.
She speaks (country omitted) and English with X.
Mr P
He is the paternal grandfather.
He is a semi-retired (omitted).
He says he has not had any dealings with the mother since the parties separated. Prior to that he said that he treated the mother as his daughter.
He said that he would “always hope for good” for the mother because she is the mother of his grandson.
He said he would “never be against her”.
Dr L
He is an academic at the (employer omitted) University. He is a (occupation omitted).
He swore an Affidavit on 19 March 2014.
He was not required for the purposes of cross examination.
Annexed to his Affidavit is a report. In that report he expresses an expert opinion and says that marriages between (country omitted)’s and non-(country omitted)’s if they live in (country omitted) are usually frowned upon. He says children from such marriages in (country omitted) often suffer from racism and prejudice. He says that such is the prejudice that a (country omitted) woman married to a Caucasian man would normally leave (country omitted) for the sake of the child’s welfare and education or alternatively the child would be enrolled in a private international school. He says that if a (country omitted) mother and a mixed race child lived in (country omitted) both of them would be subject to social ostracism. He said that if the mother re-partnered a (country omitted) then “the mixed blood” child from the previous marriage might face racial prejudice and possibly abuse from the step parent. There would, be pressure to adopt out the child.
The mother
In June 2013 she met her current partner Mr G. She describes them as having commenced a committed relationship in September 2013. She says they intend to marry after her divorce is granted.
She and Mr G have entered into a twelve month lease of a home at (omitted).
She expected to commence employment after Easter 2014 as a (omitted) one day a week at each of (omitted) Primary School and (omitted).
She says that she is able to apply for Australian citizenship in May 2014 and intends to do so. When granted she will lose her (country omitted) citizenship.
She says her parents live in (country omitted). She would like to travel to (country omitted) with her new partner and X.
She says that X speaks English, (country omitted) and (country omitted). He mainly speaks (country omitted) at her home. When referring to her partner X uses the (country omitted) word for ‘Dad’. When referring to the father he uses the (country omitted) word for ‘Dad’.
She says that she has and does attend a play group with X.
She does not own a car and does not drive. She is learning to drive. Her partner is teaching her. She has for a long time expressed an intention to learn to drive. She does not know when she will get a driver’s licence.
She estimates the train travel time from (omitted) to (omitted) is thirty five minutes.
She proposes that X be enrolled at the (religion omitted) school at (omitted). She says that she has made telephone enquiries with that school and they would accept him on the waiting list. She says she does not attend the Church associated with that school.
She said that she did not tell Dr H when interviewed on 9 September 2013 that she was in a relationship because at that time it was not a committed relationship.
She said that if she travelled to (country omitted) with X she would not lie to people and say that her partner Mr G was X’s father. She said it was not right to lie to people.
She would like to be able to travel to (country omitted) each year with X for about a month so as to visit family and friends.
In paragraph 42 of her Affidavit sworn 6 March 2014 she says:
I now have a sense of community and I feel like Australia is my home. I have also overcome the language barriers and feel confident that I can build a stable future for both X and I here in Australia.
She says that she has no plans to live permanently in (country omitted).
She agrees that she and the father have discussed X’s toilet training and have adopted a joint approach.
She says that since February 2014 she has ceased providing food for X when he visits his father and leaves it to his father to make those arrangements.
She says that X becomes tired as a result of the time that he spends with his father. It is her view that the communication between her and the father is not sufficient to enable them to have an equal time arrangement for X.
She thinks an equal time arrangement would be disruptive of X’s routine.
She says her partner Mr G is a (country omitted) national living and working in Australia on a 457 Visa.
From her observations she thought that X and Mr G get on well. They speak to each other in (country omitted).
She said that Mr G is an (occupation omitted) who works in (omitted).
She and the father have completed a property settlement.
Mr G
He is an (occupation omitted).
He has been in Australia for one and a half years on a 457 Visa. That Visa expires in September 2017.
He says that he has no family living in Australia and owns no real property either in Australia or (country omitted). He said that he and the mother have separate bank accounts but they are jointly on their lease. He pays money to the mother for their joint living expenses.
He says that he would like to remain permanently in Australia.
He said that he would like to be able to visit (country omitted) with X and the mother.
He gave both written and oral evidence as the activities that he and X are involved in together.
He acknowledged that X uses the (country omitted) word for ‘Dad’ when speaking about him. He said that he and X speak (country omitted) together.
He is aged 29 and was born in (country omitted) on (omitted) 1985.
Maternal Grandmother
A witness statement was obtained from the maternal grandmother. That statement and its translation into English became Exhibit ‘D’.
She was not required for cross examination.
She wants to migrate to Australia. Most of her elderly relatives have died.
Dr H
Dr H prepared a Family Report pursuant to an order of the Court. That report is dated 19 September 2013. The Report became Exhibit ‘F’.
Dr H was cross examined by Counsel for each party.
At the conclusion of his report Dr H made a number of recommendations as follows:
a)That Mr Wiley and Ms Kirk have equal shared parental responsibility for X.
b)That X immediately begin to spend time with his father without supervision.
c)That, until he starts school, X gradually increase the time he spends with his father.
d)That once at school, X spend alternate weeks with each parent.
e)That the parents share responsibility for the transport involved in such an arrangement.
f)That X’s name remain on the Airport Watchlist.
In paragraph 40 of the report Dr H evaluated:
Despite their past conflict and family violence, Mr Wiley and Ms Kirk now seem able to be civil to each other and to communicate about day to day issues relating to their child.
In the same paragraph he says:
Very likely, once the matters before the Court have been resolved, the situation will be more conducive to these parents being able to co-operate and communicate about their child.
In paragraph 42 of the Report Dr H says:
X also appears to have overcome any disruption to his attachment to his father caused by their lack of contact for some months.
In paragraph 44 of the Report Dr H says:
Because Ms Kirk fulfils the role of X’s primary carer, it is appropriate for the child’s time with his father be gradually increased. The optimum level of each stage over the two years before X starts school is difficult to determine. However, as Mr Wiley attests that he is prepared to proceed slowly, that the various stage increase should be a four month period. Presuming there is not significant incident during that time it appears that it will be in X’s best interest to spend equal time with both parents once he is of school age.
In paragraph 45 of his report Dr H says:
Were X to live in (country omitted), he very likely would lose his father’s involvement in his life.
During his cross examination Dr H was asked whether he thought that it was possible for the mother’s partner Mr G to have established a bonded relationship with the child shortly after meeting the child. Dr H said that he thought that it was wishful thinking, and that it would take some time from meeting a child to the establishment of a bond.
With respect to the equal time recommendation Dr H said it did not necessarily have to be on a week about arrangement.
With respect to his recommendation for equal time for the child with both parents by the time the child started school Dr H in answering questions during cross examination said both parents have something to give but if they don’t live close by it would not be practicable for them to have equal time. He thereby changed his recommendation.
Dr H during cross examination was asked questions about his recommendation for the child’s name to be placed on the Watchlist. Dr H said:
I don’t know what the risk is for Ms Kirk in remaining in (country omitted), it would be for the Court to weigh that risk.
Determination
By consent there are to be orders for the parents to have equal shared parental responsibility with respect to the child.
By consent there are to be orders for the child to be baptised into the (religion omitted) faith.
By consent there are to be orders that the child be placed on the waiting list for enrolment at a (religion omitted) systemic school and that he attends such school if a place is available.
Having heard the evidence I am satisfied that the parties level of communication is sufficiently good to enable them to exercise equal shared parental responsibility. As evidence of this they have been able to implement a joint toilet training strategy for X. They also agree as to X’s religious affiliation and schooling.
I am also satisfied that any family violence that occurred just prior to the parties separation was situational, limited in time and at the lower end of the scale of seriousness. Since separation there has been no repeated family violence.
As such I am satisfied that the presumption for equal shared parental responsibility should apply, as being in X’s best interest.
There will for the above reasons be an order for equal shared parental responsibility. The parent’s ability to communicate and the lack of parental disputation apart from the appropriate order for “time with” makes such an order reasonably practicable.
The other orders that are to be made by consent are entirely in the child’s best interest. The making of machinery orders to facilitate those orders will then make such orders reasonably practicable, especially the transportation order.
Given that there is to be an order for equal shared parental responsibility the Court must consider the making of an order/s for X to spend equal time with his parents.
X has just turned three.
The parties separated on 27 November 2012. Since then X has lived with his mother and spent limited time with his father.
It is conceded on the father’s behalf that an equal time order immediately would not be in X’s best interest. That concession is appropriate recognising that X’s primary relationship currently is with his mother.
An immediate order for X to spend equal time in the care of both parents would not be in his best interest. Such an order may be stressful for X.
It is conceded by both parties that the best arrangement immediately for X is that he remains living with his mother and spends time with his father. Such orders would accord with the recommendations of Dr H and would I am satisfied be in X’s best interest.
X is not yet of an age to have any views regarding parenting orders. His cognitive development and linguistic development because of his age do not enable the expression of such views.
Dr H accepts that the mother is X’s primary carer. The father concedes this. I make such a finding.
Dr H is of the view that each of the parents have much to offer X. Dr H says that any disruption that X experienced in his relationship with his father has now been repaired. Having heard the evidence I agree with both these opinions.
X has also spent regular time with the paternal grandmother who for some time was a supervisor of the father’s time with X.
The paternal grandparents as grandparents have an important role to play in X’s life including but not limited to the capacity to impart to him his (country omitted) heritage. Similarly the maternal grandparents have had some time with X. They too as grandparents have an important role to play in X’s life and can impart to him information as to his (country omitted) heritage.
Pleasingly in recent times the parents have begun joint participation in decisions about X and long term issues that relate to him. They have implemented a co-operative toilet training regime for X. They have kept each other advised of his nutritional requirements. They have discussed some nose bleeding that X has recently experienced.
Each of the parents has faithfully fulfilled their obligation to maintain X.
It is Dr H view that any change in X’s living arrangements need to be a gradual process. In paragraph 44 of his report Dr H states:
The optimum length of each stage over the two years before X starts school is difficult to determine.
Indeed in the next two years X’s development will accelerate. His chronological age will nearly double. His linguistic skills will improve. How all these changes will impact on X’s development is impossible to tell at this point in time. Likely all will go well. It is, however impossible to have any certainty.
Given the above, caution in the incremental increase in time that X spends with his father is more likely to be less disruptive for X, and therefore more likely to promote his best interest. An immediate incremental increase to overnight time and then no further increase until 2016 is likely to be of more assistance to X in adjusting to the change than two or more short term incremental increases in time.
Presently the mother lives in (omitted) and the father lives in (omitted).
The driving time between their respective residences is about 30 minutes.
The father has a car and a licence.
The mother does not have a licence and is only learning to drive.
There is a train between (omitted) and (omitted) that takes about 35 minutes.
The distance between the parents’ homes, the need for the mother to be reliant on public transport raises significant practical difficulties with respect to the possibility of X living in an equal time arrangement into the future. Even if and when the mother can drive, the distance and travel time are not conducive to an equal time order and would make such an order not reasonably practicable. To assist in making the orders reasonably practicable the father or his nominee is to be responsible for X’s transport between the parties’ homes until the mother has a licence and/or car.
Each of the parents is a more than capable parent devoted to X. Each parent loves X and receives X’s love in return. Each is able to provide for his needs.
The maternal grandparents have a hope of being able to come to Australia to live permanently on a parent type visa. If not they intend to regularly visit Australia and have done so in the past.
X is a three year old boy who has (country omitted) and (country omitted) heritage. He is learning to use three different languages – (country omitted), English and (country omitted). He is currently more fluent in (country omitted) because he has spent more time in his mother’s care.
It is clear from Dr L’s unchallenged opinion that if X were to live in (country omitted) he would suffer discrimination because of matters that Dr L says are inherent in (country omitted) culture.
I am satisfied that the mother does not wish to live in (country omitted). As long ago as January 2010[1] she has expressed in writing a desire to live in Australia and to become an Australian citizen. She is following through on that desire. The mother says and I accept that she will begin the process of obtaining her Australian citizenship in May 2014. The maternal grandparents it would seem having regard to the maternal grandmother’s witness statement[2] intend to apply for a parent visa to come to Australia permanently.
[1] See Exhibit ‘C’
[2] See Exhibit ‘D’
The mother’s partner whom she hopes to marry after the parties are divorced is in Australia on an employer sponsored 457 Visa. He too hopes to be able to obtain permanent residency in Australia.
The father fears despite the above that the mother might return to live in (country omitted). I am satisfied that that fear has no basis in fact. By that I mean that there is no real likelihood of the mother returning to live permanently in (country omitted). The mother would, however, like to visit (country omitted) with X for the purposes of holiday. I am satisfied she would never place X up for adoption when in (country omitted).
Both parents have demonstrated a proper attitude towards the responsibilities of parenting X. They have an acceptable level of communication about X but each needs to improve their communication with X about the other parent.
I cannot find that the making of orders in this case will limit the likelihood of further proceedings. It is likely that the parties will continue to mistrust each other. Further litigation remains a possibility whilst this mistrust exists.
The mother and her partner Mr G have a twelve month lease on their home at (omitted). They entered into that lease on 3 February 2014.
The mother will shortly undertake some part time work as a (omitted) at (employer omitted), giving her more connection to Australia, interaction with the community and possibly even more incentive to remain in Australia.
The mother does not own any property in Australia.
The mother has lived in Australia for nearly four years. She wants X to grow up in Australia. She is a permanent resident of Australia and she shortly intends to take out citizenship. She is becoming more entrenched and connected to Australia society. As I have said there is no reasonable likelihood that she will live permanently nor long term in (country omitted) in the future.
Even if she were to marry her partner and he were denied permanent residency on the expiry of his 457 Visa I would expect that it was more likely that he would then apply for a spousal type visa even if he had to spend some time in (country omitted) to obtain such a visa.
Considering the above I am satisfied that there is no reasonably likelihood the mother would remain in (country omitted) with X.
The suggestion that if she were in (country omitted) she would be societally pressured to give X up for adoption is theoretical and without likelihood in reality, because she will not live with them long-term.
The father seeks to maintain X’s name on a Watchlist order. He is the applicant for that order; he bears the onus on the civil standard of establishing a need for that order. Given the evidence I have set out above he has not proved his case to the civil standard. He has not proved the need for the making of a Watchlist order even with a sunset clause.
Additionally X would benefit from the ability to travel both to (country omitted) or perhaps to (country omitted) if the father so desired, and to anywhere else in the world. X’s freedom to travel with either parent should not be curtailed. It is not in his best interest to do so, as it will limit, for one, opportunity for X to experience his cultural heritage.
A Watchlist order is not made notwithstanding that (country omitted) is not a signatory to the Hague Convention. (country omitted) has signed the convention but is yet to accede to it. As a consequence at this point in time (country omitted) is not yet a signatory to the Hague Convention of child abduction. That fact alone is not sufficient when balanced against the other evidence to cause the need maintain X’s name on the Watchlist by way of order. The interim Watchlist order will be discharged.
In balancing the above factors it will be in X’s best interest if he begins immediately to spend an overnight period each alternate weekend with his father between the Saturday and Sunday that he is already in the father’s care. The Wednesday period is to continue. This change is likely to reduce tiredness for X, by allowing rest. It will also give more time for X to be in his father’s care and to experience all the things that his father can bring to his life and thereby add more meaning to their relationship. I accept the father’s evidence that X is less rushed and hurried because of the extra time he has had recently with his father. The father can capably care for X. The extended period away from his mother will not damage their relationship.
The more vexed questions are when should X then begin to spend more time with his father and should that time become equal time by the time X commences kindergarten.
Given the uncertainty as to how X will develop a further extension in the time between X and his father so as to extend overnight night period is most likely on balance to be in X’s best interest after he has settled in school.
Extension then so that the period commences from after school on Friday and extends to before school on Monday is most likely to be in X’s best interest at the conclusion of term one in his first school year so as to give him time to settle into that school year before the extension takes place.
If the parties remain living in their current locales equal time is not reasonably practicable due to distance and travel time and therefore is not ordered.
The periods between incremental increases that are to be ordered are longer than that envisaged in the report of Dr H but they will ensure that X does not become too disrupted by the change and balance the benefit that he will receive from additional time with his father, against the risk of disturbing X.
By midway through 2015 X is likely to be able to sustain a four day holiday period with his father during each 3 – 4 months and then by the end of term one in his first year at school he will be ready for half school holiday periods with his father. If those school holidays alternate between the first half and second half then each alternate year X will spend Christmas and Easter with each parent and enjoy with them the importance that those occasions have for families and adherents of the (religion omitted) faith.
Notwithstanding that X’s name will not be on the Watchlist there will be an order restraining X travelling out of the Commonwealth of Australia without the agreement of both parties. Such an order will enable the parents to assess how X’s relationship with his parents is developing and whether a period absent the Commonwealth of Australia would affect those relationships. If the parties could not agree then unfortunately further litigation would be necessary. All things being equal it is likely that X would be able to spend a two week period outside of the Commonwealth of Australia absent from the other parent sometime late in 2015 or early 2016. By then he will have experience overnight and short holidays absent from his mother, he will also have experienced longer periods in his father’s care.
Given that X is to spend most of the time in his mother’s care it will be less tiring for X if he attends a local (religion omitted) school in the area in which she lives. Not being tired by travel to and from school in his early school years should assist his learning and help him develop school friends who will likely be in and about the area of his mother’s home.
Hopefully the parents will be able to agree as to which school to enrol him into in the mother’s local area. Again if they cannot then there would need to be further litigation.
The above orders recognise the distance in travel time between the parents’ households. The definition in the orders should reduce the areas of disputation between the parents. Their communication about X is now adequate and improving.
I am therefore satisfied for these reasons that the orders are also reasonably practicable, in addition to being in X’s best interest.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 27 May 2014
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Jurisdiction
0
0
0