WORSFIELD & NORTON

[2014] FCCA 2480

FEDERAL CIRCUIT COURT OF AUSTRALIA

WORSFIELD & NORTON [2014] FCCA 2480

Catchwords:
FAMILY LAW – Parenting – mother seeks to relocate with three year old child from (omitted) to Adelaide – mother has two older children – mother and father of older children decided the older children should be educated in Adelaide – mother put plans in place before consulting with father of youngest child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Waterford and Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall and Clark (2009) FLC 93-405
MRR and GR [2010] HCA 4
Taylor and Barker (2008) 37 Fam LR 461
AMS and AIF (1999) 24 Fam LR 756

Applicant: MR WORSFIELD

Respondent: MS NORTON

File Number: ADC 4702 of 2013

Judgment of: Judge Harland

Hearing dates: 6, 7 and 8 August 2014

Date of Last Submission: 8 August 2014

Delivered at: Darwin

Delivered on: 29 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Dickson

Solicitors for the Applicant: Cardone & Associates

Counsel for the Respondent: Ms Kari

Solicitors for the Respondent: Barnes Brinsley Shaw Lawyers

ORDERS

1. The parents have equal shared parental responsibility for the child X (“X”) born (omitted) 2011.

2. That the mother be permitted to change X’s residence to Adelaide seven days before X commences kindergarten in 2015.

3. That X live with the parties as follows:

   (a)For the remainder of term 3 in 2014 until the end of term 4 in 2014 (fortnightly cycle);

   (i)With the father from Monday 9.00am to Thursday 9.00am (3 nights);

   (ii)With the mother from  Thursday 9.00am to Friday 9.00am (1 night);

   (iii)With the father from Friday 9.00am  to Sunday 9.00am (2 nights)

   (iv)With the mother from Sunday 9.00am to Monday 9.00am the following week (8 nights);

   (v)That the handovers take place at the mother’s residence on (omitted) and that the parties share equally the costs of X’s travel on the ferry being two crossings per fortnight;

   (vi)That the extended 8 night period with the mother coincide with the mother’s care of Y and Z;

   (vii)with the father from Monday 5:30pm to Sunday 5:30pm (6 nights);

   (viii)with the mother from Sunday 5:30pm to Monday 5:30pm the following week (8 nights);

   (ix)That handovers take place at (omitted), with the father to accompany X and facilitate same (Boat departing (omitted) at 6.00pm on Mondays and Boat departing (omitted) at 4:30pm on Sundays);

4. For the Christmas school holidays commencing December 2014 (fortnightly cycle);

   (a)With the father from Sunday 9.00am to Thursday 3.00pm (4 nights);

   (b)With the mother from Thursday 3.00pm to Friday 3.00pm (1 night);

   (c)With the father from Friday 3.00pm to Sunday 9.00am (2 nights);

   (d)With the mother from Sunday 3.00pm to Sunday 7.00pm the following week (7 nights);

   (e)Notwithstanding any other order X will spend time with the mother from 24 to 26 December 2014;

   (f)That handovers take place at the mothers’ parents’ residence in (omitted);

   (g)That X’s time with the mother coincide with the mother’s care of Y and Z.

5. SAVE THAT IN THE EVENT that the mother has sold and settled (business omitted) and that the mother’s parents have sold and settled their (omitted) residence then as follows:

   (a)with the father from Monday 5:30pm to Sunday 5:30pm (6 nights);

   (b)with the mother from Sunday 5:30pm to Monday 5:30pm the following week (8 nights);

   (c)That handovers take place at (omitted), with the father to accompany X and facilitate same (Boat departing (omitted) at 6.00pm on Mondays and Boat departing (omitted) at 4:30pm on Sundays).

6. During each of the school terms in 2015 (fortnightly cycle):

   (a)With the father from Thursday 9:30am to Monday 9:30am (4 nights) in each alternate week or for such other consecutive four (4) day block outside of kindergarten attendance;

   (b)With the mother Monday 9:30am to Thursday 9:30am the following week (10 nights);

   (c)That handovers take place at (omitted), with the father to accompany X and facilitate same (Boat departing (omitted) at 10.00am on Thursdays and Boat departing (omitted) at 8:30 am on Mondays);

   (d)That X’s time with the mother coincide (principally) with the mother’s care of Y and Z;

   (e)That on the occasions when the 8:30am ferry from (omitted) is unavailable for Monday 9:30am handover (approximately 21 July to 7 Sept annually), then the 7:30am ferry shall be taken resulting in a handover at 8:30am Monday at (omitted).

7. During school holidays at the end of terms 1, 2, 3 and 4 of 2015. During each year thereafter including Christmas School Holidays:

   (a)X to live with the parties in alternate weeks from Sunday to Sunday with handover to occur at 5:30pm subject to X spending Christmas with the father in 2015 and each alternate year thereafter (between 24 and 26 December) and Christmas with the mother in 2016 (between 24 and 26 December) and each alternate year thereafter;

   (b)That handovers occur at (omitted) with the father travelling with X on the ferry and noting that flexibility may be required with respect to handover times during Christmas holidays NOTING the likelihood of further ferry crossings being scheduled during these holidays and FURTHER NOTING that ordinary ferry times will be to depart (omitted) at 6.00pm on Sunday and to depart (omitted) at 4:30pm on the following Sunday;

   (c)That X’s time with the mother coincide with the mother’s care of Y and Z.

8. During each of the school terms commencing 2016 and thereafter;

   (a)With the father each alternate weekend on (omitted) from 5:30pm Friday (or Thursday if a public holiday) until Sunday at 5:30pm (or Monday if a public holiday);

   (b)That the father be at liberty to extend the alternate weekend times to encompass X’s pick up from school at weeks end and attendance at school the beginning of the following week, upon giving the mother no less than 1 weeks’ notice of same;

   (c)With the mother for the balance of the fortnight;

   (d)X to spend all long weekends (excluding the Easter long weekend) during school terms with the father from 5.30pm Friday to 5.30pm on a public holiday Monday;

   (e)From 5.30pm Maundy Thursday to 5.30pm Easter Monday 2015 and each alternate year thereafter;

   (f)That handovers occur at (omitted) with the father travelling with X on the ferry NOTING that times will be the Boat departing (omitted) at 6.00pm on Sunday and Boat departing (omitted) at 4:30pm on the following Sunday and FURTHER NOTING that in the event that the 4:30pm ferry from (omitted) is unavailable then the 5:30pm shall be taken, resulting in 6:30pm handovers, unless otherwise agreed;

   (g)On the occasions when neither of these ferries are available (approximately 21 July to 7 Sept annually), then alternative arrangements (with handover no later than 6:30pm at (omitted) or 8.00pm at Ms Norton's’s residence) shall be implemented by the parties.

9. That in the event that special occasions such as Mother’s Day, the mother’s birthday and Y and Z’s birthdays fall on the day before or the day after a handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the mother.

10. That in the event that special occasions such as Father’s Day or the father’s birthday fall on the day before or the day after handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the father.

11. For X’s birthday the parties spend time (half a day each) with X on his birthday in each year with the location to alternate between (omitted) and Adelaide.

12. That any changes to the care arrangements for the children Y and Z shall not be reflected in changes to the care arrangements for X as provided for herein unless otherwise agreed between the parties.

13. That the father make all reasonable attempts to:

    (a)Secure any discount or free fare available to him on the Sealink ferry;

    (b)Secure the “cruiser/accompanying adult” fare (the “c/aa fare”) provided by Sealink on some trips (whereby the accompanying adult travels for free both ways and the child travels at normal child rates) for X and the father to:

    (i)travel on the 6.00pm (or 7.00pm  if the 6.00pm does not have the c/aa fare) Sealink Ferry from (omitted) to (omitted);  and

    (ii)travel on the 5.30pm (or 4.30pm if the 5.30pm does not have the c/aa fare) Sealink Ferry from (omitted) to (omitted);

    (iii)and if the c/aa fare is not available, then the father and X shall travel on the 6.00pm Sealink Ferry from (omitted) to (omitted) and the 5.30pm Sealink Ferry from (omitted) to (omitted) and the father shall give the mother not less than 24 hours notice of the travel bookings made for the said travel.

14. That the costs of the father and X (no vehicle) travelling together on the Sealink Ferry from (omitted) to (omitted) and return be paid for by the father and that  the mother reimburse the father for the same within 7 days of presentation to the mother by the father of his invoice/receipt for he and X’s joint travel. 

15. That upon the father relocating to Adelaide X live with each parent on a week about basis from Sunday to Sunday or as otherwise agreed.

IT IS NOTED that publication of this judgment under the pseudonym Worsfield & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4702 of 2013

MR WORSFIELD

Applicant

And

MS NORTON

Respondent

REASONS FOR JUDGMENT

1. X is 3 ½ years old. He has two parents who love him dearly and want to maximise their time with him. His parents are in court because the mother wants to relocate with X to Adelaide.  The father wants X to remain living on (omitted) “the (omitted)”.

2. The father has grown up on (omitted). X is the seventh generation of the father’s family to live on (omitted). The father’s two brothers and parents live on (omitted). The father’s parents own three farms.

3. The father is currently working as a (omitted). He has previously worked as a (omitted). He has enrolled in a four week (omitted) course so that he can (work omitted). He has a possible job offer (omitted) for (employer omitted).  This is dependent on the father obtaining his (omitted) qualification.  He will also continue to work on his parent’s farm as needed. He has previously worked as a (omitted) but has not done that work since 2012.

4. The mother owns and runs a (business omitted) on the (omitted). She has placed that business on the market. She is hoping it will sell but if it doesn’t she plans to close the business after the next summer season.

5. The mother has two other children from a previous relationship. Y is aged 14. Z is aged 10. They have lived in a week about arrangement with their mother and their father Mr J since 2008.  The mother and Mr J moved to (omitted) in 2002 with Y and Z. It is apparent from both parties material that their relationship was a tumultuous one. They never lived together.

6. The mother’s pregnancy with X was traumatic. The parties were advised that there was a real risk that their child would be born with abnormalities. The parties give very different versions of events during the pregnancy. The mother described the father as pressuring her to terminate the pregnancy and described him as harassing her. The father says that he was distraught and did talk to her about terminating the pregnancy. He says pregnancy was unexpected and he was worried about being a father. The mother’s attitude towards him in the pregnancy was changeable and at times she excluded him.

7. I accept that this period was extremely traumatic for both parents. It may well be that at times the parents did not behave well towards each other but that is understandable given the immense stresses they would have been under. The father concedes in his affidavit that he could have handled things better in hindsight. I do not accept the mother’s portrayal of the father as being harassing although I accept she may have genuinely felt that way at times.

8. The parties focused a lot of the energy on going into great detail about their past relationship and the difficulties they have had with each other. Given the fact that there is no dispute that the parties should have equal shared parental responsibility for X and that X should spend substantial and significant time with his father it is unfortunate that they have done this as it is not necessary to me to determine the nature of these historical disputes in order to make the decision I am asked to make.  More recently there has been heightened tension between the parties which was inevitable given the nature of these proceedings.  I understand that historical issues are very important to the parties and it is not uncommon to see them addressed in affidavit material. I will not traverse many of these issues as it is not necessary. Both parties should be assured that they were well represented by their counsel and instructing solicitors who presented their cases well and provided assistance to the Court during the course of the hearing.

9. Relocation cases, particularly when a young child is involved are difficult, and often require judicial determination.

The Father’s case

1. The father seeks to have X remain living on (omitted) at least until he attends high school. He wants to build up to an equal shared arrangement for X which can only occur if X remains on (omitted) unless the father moves to Adelaide.

2. The father provided two detailed proposed parenting orders which appear as annexures to this judgement. Annexure A is the father’s proposed orders in the event X remains on (omitted). Annexure B is the father’s proposed orders in the event X is permitted to live in Adelaide with his mother.

3. The father says that X is the seventh generation of his family to be born on (omitted) and he wants X to have the same upbringing that he did. His parents and siblings live on the island. They are a close knit family.

4. The father’s mother swore an affidavit and was briefly cross-examined.  She gave evidence that she did not go to Adelaide often. They have family in (omitted) and (omitted).

5. The father tendered the bundle of text messages and the communication book, relying on the pages tagged by counsel. As indicated at the hearing I have read those tagged pages only and not the entire bundles. In some of the text messages from 2013 the mother expresses love for the father. Both parents express love for X in their appreciation of the joy he brings to their lives. Some of the communication in the communication book is businesslike.  It is clear that the issue of the father’s changing employment, being a (omitted) opportunity, presented some difficulties for the parties but the communication that I was asked to read was constructive and child focused. There are also times the parties disagreed on issues but the communication I was asked to read was not abusive or aggressive. It is not surprising that the father wanted to talk to the mother about the letter he received about her proposed relocation.

The mother’s case

1. The mother seeks to be able to live with X in Adelaide and to have X living in her primary care. The mother’s proposed orders are set out in Annexure C to this judgment.

2. The mother made the unilateral decision to relocate from (omitted) with X at the beginning of 2004. She put things in train to make this happen before informing the father. She only told the father about the move via a letter from her lawyer in the lead up to Christmas.

3. The mother should have raised it with the father before putting things in train. She left raising it until the last possible moment. She could have raised it when she and Mr J were discussing it. She and Mr J started discussing the boys attending school in Adelaide in June or July 2013. She says Mr J’s financial situation meant that boarding school was not an option. She also said that Mr J has been building up connections in Adelaide for some time and bought a house in late 2012 when he was moving his business off the island. The mother and Mr J live close to each other in Adelaide.

4. On 17 October 2013 the mother completed an enrolment interview record at (omitted) School. She visited the school in person. She signed the enrolment form on the 6 November 2013 and waitlisted X. She says the school asked for information about siblings. Even then she did not raise it with the father.

5. The mother admitted that she should have raised the issue with the father much earlier but felt she could not do so. She conceded that it caused great shock and distress to the father to receive the news via a lawyer’s letter that says she only felt comfortable communicating through her lawyer. The mother’s actions do not reflect well on her. It is clear that she wanted to avoid conflict with the father but she failed to appreciate that delaying telling the father via legal correspondence she made the conflict so much worse. It is only natural to expect that the father would be upset but that is not a reason to delay telling him. Her delay could only make it worse. I think there was some calculation in her part in delaying telling him until the plans were in place. She should have raised it with the father when she first seriously started discussing it with Mr J. She certainly should have told him by October 2013 when she was signing enrolment forms making commitments. The mother will need to ensure that she consults with the father as soon as major issues arise in the future.

6. The mother claims that her relationship with the father has always been difficult both before and after X was born. I do not agree that the father was as difficult as the mother makes out. My impression of the mother is that she did not like conflict and is therefore avoidant. She complains about the difficulties of the arrangements that have been in place since late January 2014 but she is the author of her misfortune by failing to consult reasonably with the father before deciding to enrol her two older children in school in Adelaide. She complains about the father not appreciating the financial pressure that she has been under but did not acknowledge the distress that she has caused the father.[1]

   [1] See the mother’s affidavit filed 28 May 2014 paragraph 94.11 for example.

7. The mother says she has always been involved with Z and Y’s care during the weeks they are with their father such as taking them to activities when their father has been unable to do so. She will be unable to do this if she has to remain on the island on a week about basis.

8. The mother says she and Mr J agreed a long time ago that their children should be educated in Adelaide in their high school years.

9. The father says he understood this to be the case for their senior years.  He said he thought they would go to boarding school as he did. The high school at (omitted) does not go beyond year 9.  It is common for children from the Island to go to boarding school for their senior high school years.

10. The mother says that Y often complained about being lonely and was grieved when his one close friend moved away from the Island. There were limited activities, particularly for Y to participate in.  The mother says Y’s school performance deteriorated.

11. The school reports from this year show Y is performing well academically and is participating well in sporting and group activities.

12. The mother owns and runs a (business omitted) on (omitted). She placed the (business omitted) on the market earlier this year but has not been able to sell it.  She says it is difficult to sell the businesses in the off-peak periods which are quiet. She plans to install a manager in the business over the summer and if she is not able to sell the business by summer’s end she intends to close it down. The mother says she is hopeful of being able to work part-time whilst X is at kindergarten if she is able to sell the business.

1. The mother concedes that X is attached to his father and enjoys spending time with him. She also conceded that X is also close to his paternal grandparents.

Ms T

1. The mother has been seeing clinical psychologist Ms T periodically since 2011. Ms T provided a report annexed to her affidavit and was cross-examined. Ms T says she was initially referred to her after the traumatic pregnancy and birth of X and to manage her “difficult relationship” with the father.  The mother reports “a significant history of family violence from Mr Worsfield towards her, constituting ongoing emotional and verbal abuse, in an escalating pattern ….”.[2]

   [2] Page 4 of the report.

2. Ms T says that the mother has some dependent personality traits “and this has made it difficult for her to break the pattern of emotional and verbal abuse from Mr Worsfield, and to establish boundaries in their relationship in relation to the care of their son.”[3].

   [3] Page 7 of the report.

3. Is clear from the mother’s own evidence and her communication with the father at times that she herself blurred the boundaries between them.

4. Ms T expresses concern about the mother having to remain on the island given the “significant history of emotional and verbal abuse”.[4]

   [4] Page 11 of the report.

5. Ms T opines that if Mr Worsfield is successful in his application that will be detrimental to the mother as she will be “faced with the untenable decision of how to effectively parent all three of her children, and unite her children as a family.”[5].

   [5] Page 9 of the report.

6. It is important to record that Ms T is the mother’s treating psychologist. The descriptions of the relationship between the mother and the family being characterised by violence only comes from the mother.  I am not satisfied that there has been violence as described by the mother. I certainly accept that there has been conflict between the parties and the parties had found it difficult to communicate constructively with each other but it is quite a different thing to say that the father has been emotionally and verbally abusive as claimed by the mother.  

7. Ms T says that the mother’s anxiety and stress levels are in the clinically significant range and has reported that the stress of regularly commuting has been significant.[6]

   [6] Page 4 of the report.

8. I do not place any weight on Ms T’s comments about the viabilities of the arrangements so far as X, Z and Y are concerned.

9. Ms T’s notes confirm that the mother did not see her exclusively to discuss the difficulties with the father but also discussed other life stresses including issues with Mr J, her relationship with peers and, her business and these proceedings. Ms T was cross-examined about the lengthy gap where the mother did not see her for several months which coincides with a period which the mother says was very stressful. She replied that is not uncommon when people are feeling overwhelmed they do not seek help straight away. She also said by that stage the mother had developed good strategies for coping. She believes the mother will seek help if she needs to.

10. I accept that the mother is anxious and that she is feeling the strain of current arrangements.  I do not accept that the father is as overbearing and manipulative as the mother claims. I think the mother avoids any situations where there might be conflict I think at times the father has found the mother’s avoidance frustrating. The combination of these factors have lead to an increase in the conflict between them compounded by the mother’s unilateral actions. The mother is going to have to work on her style of communication with the father. It is going to be far more productive if she finds a way of communicating with him directly. Both parents may benefit from undertaking a post separation parenting course to assist them with strategies as to how to communicate with each other constructively for X’s benefit.

Dr A

1. The mother arranged for Dr A to interview Z and Y and prepare a report. It is a shortcoming of the family report that Ms N did not speak to Z and Y. In the joint letter of instruction to Ms N she was requested to make appointments for the parents, X, Z and Y. Although Z and Y are not the subject children of these proceedings, their interests also need to be considered as section 60CC of the Family Law Act1975 (“The Act”) makes clear. It is common practice for all members of the parties’ households to be interviewed by the family report writer.

2. Dr A received information from (omitted) School which confirmed that there are few children of Z and Y’s ages at the school and very few male students in their age groups.

3. Y expressed being much happier in Adelaide. He described making new friends and his joy at being able to play football with peers his own age. He also expressed relief at being able to choose who to hang out with. He said he was still adjusting to his new school and the amount of homework. Y described a close bond with X and said he feels like a full brother not a half one.

4. The mother described Z as a sensitive child who suppresses his emotions.  Z described settling in well to Adelaide and enjoying having many friends at school.

5. Dr A expressed the view that it is important for both Z and Y’s social development and emotional wellbeing that they have access to peers of their own age groups and social activities appropriate for their ages.  These were limited on this.  Dr A was also cross-examined. She did not have access to the court documents or the family report. Her mandate was very much focused on Y and Z and she said that Y and Z are very aware of the dispute and did not talk about the conflict but were very concerned about where X was to be. She did not have the impression that they were embedded in dispute. They talked about their feelings and what was going to happen in their own words. She says Y has a slow to warm up temperament which means it takes him a while to familiarise himself with the new environment but once this occurs is likely to settle quite well.  She was not surprised that he had struggled to adapt to his new school.

The family report writer

1. Ms N prepared the family report. She described both parents as caring and capable parents who were child focused. Both were distressed by the situation.

2. She commented that both parties described the relationship as tense and that their communication, mainly relying on the communication book and texts were not ideal and were at times frustrating. They both felt that they were trying to remain civil and make the relationship work but that the other was not as committed.

3. The mother complains that the father ignores her at handovers. The father says that he is at times focused on greeting X and would ask the mother to repeat herself. I think this is an example of this mismatch between the parties. It is easy to see both points of view. Handovers are not the best time to discuss issues of any substance, principally because it takes place in front of the child. Both parents describe their relationship as tense. X would pick up on this at handovers. Children, even young children, are adept at picking up on non-verbal cues. It is not surprising that handovers are tense particularly because of these proceedings and how they came about. 

4. Both parents told Ms N that they cannot see communication improving in the future. I am not as pessimistic as the parents. Hopefully after the proceedings are ended and some time has passed, the tension between the parents will improve. One thing is very clear, both parents love X dearly and want what is best for him. These parents will have to deal with each other for many years to come and find a better way to work together as parents. Both would benefit from completing a post separation parenting course to improve their communication and to better understand how ongoing conflict can negatively affect children.  I will not order the parents to attend such courses as if the parties are motivated they will enrol in a course themselves.  There would be some logistical issues for the father given his residence on (omitted).

5. The mother made various claims about the father to the report writer including that he is obsessive about cleanliness.  The father countered this by referring to the work he does dealing with (omitted) and farm work which is dirty.

6. The mother also claims that the father is not actively involved in X’s care leaving a lot of this to his mother. I do not accept this claim. It is natural given the close nature of the father’s family that he would take his son to his parents’ farm and they would have meals there. That does not mean that the father is not the primary one caring for X. The parents never lived together. The mother is not basing this on anything she has seen in X’s care. It suits her case to downplay the father’s role.

7. Mr Worsfield also raised various concerns about the mother. In part this is in response to her unilateral decision to relocate with X off the island.

8. The mother told the report writer that it would be ideal if the father moved to Adelaide as well. Both have had struggles with employment on the island.

9. The family report writer noted that each of the observed interactions with X “were a delight to observe”.  X appeared to be well-adjusted and happy and comfortable with both his parents. She observed that X managed multiple changeovers at the assessment well and was delighted to be leaving with his father. She noted that X has a “strong, loving and secure dual-primary attachment” to both parents.

10. The family report writer was also not surprised that the conflict between the parents has increased since X’s relocation “given this was achieved without negotiations and dual consent.” The mother denies being underhanded about the move but the father is justified in feeling this way.  The mother must take responsibility for this increasing the tension between the parents and she must work to repair it. It is not surprising the father has reacted in the way he has and does not trust the mother. The mother chose the most insensitive and ill-timed manner to inform the father of X’s relocation.

11. At paragraph 65 Ms N says:

    “It also appeared the father’s alleged drinking and verbal disputes with the mother during the relationship had been enacted within a framework and context of an unhealthy, unhappy and highly stressful relationship dynamic, and therefore the likelihood of these alleged behaviours being repeated were thought to have been minimised by the parties subsequent separation.”

12. Ms N concludes that it would be in X’s best interests to remain on (omitted) in his familiar environment where he can enjoy his connections with his family and friends and have both parents substantially involved in his care until X reaches high school age.

13. She goes on to acknowledge at paragraph 69 that this does not take into account the complicating factors.

    “If such a ruling by the Court was made, it was predicted that the psychological and practical implications for Ms Norton and also Z and Y were likely to be profound and in turn place X at risk of being exposed to a high level of stress and anxiety, jeopardising his sense of safety and security.”

14. Somewhat curiously at paragraph 70 she says:

    “If the Court was to determine that Ms Norton was not in a position to return to the Island on a full time basis, then it would be recommended that the Court Order X to remain in his mother’s primary care in Adelaide.”

    She goes on to say that the father would be encouraged to relocate to Adelaide as soon as practicable.

15. The statement is curious because it is not part of the mother’s case that she would return to the Island full time. Indeed that is not something she would consider as that would mean Z and Y living with their father full time which would be a huge disruption to their lives.  There is no evidence before the court that Mr H could accommodate such a change.  It is also not part of the father’s case the mother should come back to the Island full time. The father is aware of the issues concerning Z and Y.

16. If X is allowed to remain in Adelaide the father wants X to attend two kindergartens, one on the Island and one in Adelaide. As the family report writer comments this is not viable. It would be unsettling and disruptive for X’s social and education development. By the time of the hearing the father was seeking that X go to kindergarten on the Island.

17. The family report writer was cross-examined by both counsel. She confirmed that both parents impressed to her as being child focused. Both parents have different strengths and different experiences to offer X.

18. The family report writer said it will be difficult for the parties to overcome the tensions between them but that both parties are intelligent and emotionally attuned. It may take some time. She said that if the mother is permitted to relocate then communication could either improve because the mother feels liberated or deteriorate because the mother may feel less inclined to keep the father involved. This was inconsistent with her answer when cross-examined by Ms Kari when she agreed that the mother will seek assistance if she needs it and will maintain a relationship between X’s father’s family. She said she was not concerned that the mother would not do so in future.

19. Ms Kari cross-examined Ms N about her handwritten notes.  In Exhibit A she refers to the competing opportunities on (omitted) versus Adelaide specifically referring to family, schooling, social and employment. In Exhibit B the family report writer refers to the competing factors in the mother’s situation including housing two other children but she glosses over these issues in her report.

20. There are real impracticalities to the mother living on the Island on a week about basis long-term. It is not a case where the mother can undo simply what she has unilaterally arranged because it involved two other children and the father of those children. To the father’s credit he is not seeking that the older two boys return to the Island.

21. The family report writer agreed that the father’s option of the mother living in his home when she is on the Island and the father moving out is not viable. I am satisfied that the father made his proposal in good faith but it is understandable why the mother would be uncomfortable with such an arrangement.

22. The financial burden of maintaining two households on a long-term basis needs to be factored in. Whilst the mother’s parents remain living on the Island she will not have that additional expense but her evidence is that her parents are in the process of selling their property.

23. There is also the significant amount of travel.

24. The mother’s evidence was also clear that she seeks to sell the (business omitted) and it had been on the market for some time. She has found it difficult to continue to run that business whilst being in Adelaide on alternate weeks.

25. Neither party has huge financial resources. Work on the island is seasonal.  

26. I find that the report writer did not give sufficient consideration to the practical difficulties the mother faces and the consequences for X.  Whilst she identified the issues in her handwritten notes she does not consider them properly in her report.  Her report is also limited by her failure to interview Z and Y.  It is for these reasons that I am departing from her recommendation that X remains living on the Island until he starts school.

Applicable Legal Principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.

2. The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.

3. In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept meaningful relationship has been considered in  number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall and Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.

9. Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (section 61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.

12. In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for a children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

1. The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:

   “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

2. The Full Court considered the issue of relocation in light of the 2006 reforms in Taylor and Barker (2008) 37 Fam LR 461 and said at paragraphs 53 and 83:

   53.    We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224). 

   83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

3. Whilst that is the paramount consideration it is not the only consideration.  In AMS and AIF (1999) 24 Fam LR 756 at 792 His Honour Justice Kirby said:

   “[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”

The application of the law to the facts of this case

Parental responsibility

1. The parties agree that they should have equal shared parental responsibility. I am satisfied that this is in X’s best interests. The mother has acted unilaterally in the past. She needs to ensure that she properly consults with the father in the future so that they make major decisions together, including where X goes to school.

Primary considerations

1. There is no doubt that X is a much loved little boy who enjoys a meaningful and rich relationship with both his parents which will continue.

2. Whilst the mother alleges that the father was verbally abusive and engaged in coercive behaviour she could not establish this. At times there has been high conflict between the parents but this is more reflective of the fact that the pregnancy was unexpected and there was a real possibility of X being born with serious medical problems.

Additional considerations

1. X is too young to express a view.

2. X has a close and loving relationship not only with his parents but with extended family including his grandparents and brothers.

3. Both parents have taken up the opportunities to participate in decision-making for X and spent time with him.

4. Both parents have fulfilled their obligations to maintain X.

5. I accept that the current arrangement is a putting strain on the mother. She is, as the father points out, the author of her own misfortune but the paramount consideration is what is in X’s best interests. I do not think it is sustainable for the mother to keep up the travel arrangements with the requirements for her to stay on the (omitted) on a long-term basis. She will have to continue it a while longer until X starts kindergarten. Once X starts kindergarten in Adelaide he will be spending less time with his father but will still be spending substantial and significant time with him and will still have the opportunity to spend substantial and significant time with his extended paternal family.

Reasonable practicality and expense

1. This is the real issue for the parties in this case. The travel between Adelaide and (omitted) takes the parties at least three hours each way. The parties are reliant on the Sealink ferry services to go to and from the Island to the mainland. Exhibit F are Sealink brochures outlining (omitted) residents fare deals and ferry and coach connection timetable and fares. The paternal grandfather works for (omitted). This entitles the father to free fare if he goes on standby (which would not be viable for handovers or discounted fares). Residents are entitled to a cheaper rate of fares than non-residents. There is an additional expense if the parties wish to take their cars. There is a lower fare for children between the ages of three and 14 years. In times of bad weather, particularly in the off-season, the ferries will not run. There is a flight service to and from the island that neither party propose as a viable alternative due to the expense and it is also subject to inclement weather.

2. In addition to the ferry costs the parties will incur fuel costs.

3. If the mother’s parents sell their home the mother will have additional accommodation costs if she has to stay on the Island. The father lives in a three-bedroom home owned by his parents. The father proposed that it could be X’s house and that the mother could have her own bedroom with a lock on it and that he would move out whenever the mother was there with X. The mother says that she would be uncomfortable with that arrangement. This is not surprising and is not something I would impose upon her.

4. The mother also has costs of her rental accommodation in Adelaide.

5. The father has not ruled out moving to Adelaide in the future in the event the mother’s application is successful although it is clearly not an option he wishes to contemplate. He has strong connections to (omitted) and does not want to move. He says whether or not he moves in the future will depend on how X copes with the arrangements. He anticipates that he would live in Adelaide and on (omitted) on a week about basis and would face the same financial and other pressures that the mother would face in the reverse position. Employment would also be an issue for him.

6. The father seeks an order that the mother pay for his costs of travel on the ferry. I do not propose to make that order. I find that the parties should share the costs of transport. I propose to make the mother’s proposed orders with respect to the costs of the ferry travel as the father can obtain a discount that the mother cannot. Neither party is earning a high income.

7. The mother acted in a high handed manner making decisions for X without involving the father which will have long lasting implications. She could have and should have gone about it another way. The result may have been the same but that is speculation. This raises the question about her attitude towards responsibility of parenthood and her understanding of the importance of the father’s role in X’s life.

Conclusion

1. If it were not for the mother’s other two children it would be in X’s best interests for both parents to remain on (omitted) until X is older.

2. X is due to start kindergarten next year. The father wants X to attend kindergarten on (omitted). I do not find this to be a practical proposal given that I am going to allow the mother to relocate.

3. The father seeks an order restraining the parties from enrolling X in pre-school or school without the other parties written consent. The mother indicated when cross-examined that she would consent to that order. Ordinarily such an order should not be necessary as the parties were obliged to consult about this issue given that they have equal shared parental responsibility. However given the mothers conduct which precipitated these proceedings I understand the father’s anxiety. He feels he was excluded from an important specialist appointment for X when he was a baby but the mother said she had forgotten because of the death of a family friend. There is some value in emphasising to the mother the importance of her consulting with and including the father in major decisions for X. I will make the order the father seeks.

4. The father seeks orders that will operate in the event he move to Adelaide. If he moves to Adelaide he seeks orders that X live with each parent on a week about arrangement. The mother resists that order. She says that whilst she would be willing to consider an equal shared care arrangement in the circumstances she thinks it should be assessed if and when that happens. The difficulty with the mother’s proposal is that that could lead to further proceedings in circumstances where there is no issue about either parents capacity to care for X and where the father would be moving to Adelaide so as to be closer to X and be more involved in X’s life. X’s older brothers live in such an arrangement. The father does not suggest that he make the move straight away or necessarily at all.

5. I propose to make orders that if father moves to Adelaide X will live in an equal time arrangement. In the event the father remains on the island he seeks orders that would see him have most of the school holidays with X from 2016 on. I do not propose to make that order. Particularly as X gets older he will want to spend time with school friends during the school holidays and it is important that he has holiday time with both sides of his family.

6. For the above reasons I consider that the orders I am making are in X’s best interests.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  29 October 2014

Annexure A

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AT ADELAIDE

No AD 4702 OF 2013

BETWEEN:

MR WORSFIELD
  Father

AND

MS NORTON
  Mother

1. That the parties have equal shared parental responsibility for the child X born (omitted) 2011 (“the said child”).

2. That the said child do live with the parties as follows:-

   (a)For the remainder of term of 3 in 2014 until the end of term 4 in 2014 (fortnightly cycle):

   (i)With the father from  Monday 9 AM to Thursday 9 AM (3 nights);

   (ii)With the mother from  Thursday 9 AM to Friday 9 AM (one night)

   (iii)With the father from Friday 9 AM to Sunday 9 AM (2 nights)

   (iv)With the mother from Sunday 9 AM to Monday 9 AM the following week (8 nights)

   (v)That the handovers take place at the mother’s residence on (omitted) and that the father pay the cost of X’s travel on the ferry being two crossings per fortnight.

   (vi)That the extended 8 night period with the mother coincide with the mother’s care of Y and Z.

   (b)For the Christmas school holidays commencing December 2014 (fortnightly cycle):

   (i)With the father from Tuesday 5:30 PM to Sunday 5:30 PM (5 nights)

   (ii)with the mother from Sunday 5:30 PM to Tuesday 5:30 PM the following week (9 nights)

   (iii)that the times in 2.2.1 and 2.2.2 are subject to X spending Christmas with the mother from 24 to 26 December 2014.

   (iv)That handovers take place at (omitted) and that the father pay the cost of X’s travel on the ferry, being two crossings per fortnight.

   (v)That X’s time with the mother coincide with the mother’s care of Y and Z.

   (c)During each of the school terms in 2015 (fortnightly cycle):

   (i)with the father from Saturday 9 AM to Friday at 2 PM (6 nights);

   (ii)with the mother Friday 2 PM to Saturday 9 AM the following week (8 nights).

   and that X attend (omitted) kindergarten

   (iii)That handover on Friday at 2 PM take place at the mother’s residence at (omitted) with the father travelling with X on the 10:30 AM ferry from (omitted) at his sole cost and the handover on Saturday at 9 AM take place at the father’s residence.

   (iv)That X’s time with the mother coincide with the mother’s care of Y and Z.

   (v)That the mother do facilitate the child’s return to (omitted) on Monday evening in time for X to attend kindergarten on Tuesday, Wednesday and Thursday of the period that he is with the mother and that the father pay the cost of X’s travel on the ferry back to (omitted) on the Monday evening (or prior).

   (d)During the school holidays at the end of terms 1,2 and 3 of 2015 (fortnightly cycle):

   (i)With the father from Monday 9:30 AM to Sunday 11:30 AM (6 nights)

   (ii)with the mother from Sunday 11:30 AM to Monday 9:30 AM the following week (8 nights)

   (iii)That handovers take place at (omitted) and that the father pay the cost of X’s travel on the ferry, being two crossings per fortnight.

   (iv)That X’s time with the mother coincide with the mother’s care of Y and Z.

   (e)During the Christmas school holidays commencing December 2015 and all school holidays thereafter:

   (i)X to live with the parties in alternate weeks from Sunday to Sunday at 5:30 PM subject to X spending Christmas with the father in 2015 and each alternate year thereafter (between 24 and 26 December) and Christmas with the mother in 2016 (between 24 and 26 December) and each alternate year thereafter.

   (ii)That all handovers occur on Sunday at 5:30 PM at (omitted) with the father travelling with X on the ferry and the cost of X’s travel on the ferry to be paid by the father noting that there may be some flexibility around handover times during Christmas holidays given the likelihood of further ferry crossings being scheduled during these holidays.

   (iii)That X’s time with the mother coincide with the weeks that Y and Z are in the mother’s care.

   (f)During each of the school terms commencing 2016 and thereafter:

   (i)X to attend School at (omitted) and to live with the parties in alternate weeks as follows:-

   A.With the father from the conclusion of school on Friday until the following Friday at 7 PM (or Thursday if Friday is a public holiday)

   B.with the mother from Friday 7 PM to the following Friday at the commencement of school (7 nights).

   the father to resume responsibility for X upon his commencement of school Friday (following the mother’s time)

   (ii)that the mother reside on (omitted) with X during the week that he lives with her to facilitate X’s attendance at school from Monday morning to Friday morning.

   (g)That handovers at the conclusion of the father’s time on Friday at 7 PM (or Thursday if Friday is a public holiday) to take place at the mother’s residence at Mitcham with the father to travel with X from (omitted) to the mother’s residence and that this coincide with the weekend that Z and Y are in the care of the mother.

   (h)That in the event that the 4.30 PM ferry from (omitted) is unavailable, then the 5:30 PM ferry shall be taken resulting in handover at the mother’s residence at 8 PM and with the father to notify the mother immediately in the event of same.

   (i)On the occasions when neither of these ferries are available (during and around 21 July to 7 September yearly) then the 7:30 AM ferry on Saturday morning shall be taken resulting in handover occurring at approximately 10 AM on Saturday at the mother’s residence.

   (j)That in the event of ferry cancellations (due to inclement weather or breakdown) then the father utilise the next best travel option nearest to the scheduled handover.

   (k)That the cost of X to travel on the ferry to be paid by the father including the ferry trip when X returns to (omitted) with the mother.

   (l)That in the event of the transition from school terms to holidays (and vice versa) results in X spending significantly larger than usual blocks of time in one parents care (i.e. in aligning X’s time with Y and Z’s time with the mother) then X is to spend the weekend with the other parent with times to be mutually agreed.

   (m)That in the event that special occasions such as Mother’s Day, the mother’s birthday and Y and Z’s birthdays fall on the day before or the day after a handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the mother.

   (n)That in the event that special occasions such as Father’s Day or the father’s birthday fall on the day before or the day after handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the father.

   (o)For X’s birthday the parties spend time (half a day each) with X on his birthday in each year with the location to alternate between (omitted) and Adelaide.

   (p)That any changes to the care arrangements for the children Y and Z shall not impact upon the care arrangements for X as provided for herein unless otherwise agreed between the parties.

3. That the parties be at liberty to attend at all school events, sporting events, extra curricular activities, parent teacher interviews and assemblies at the said child’s school.

4. That the said child be permitted to communicate with the parties by way of telephone to facilitate the use of Skype, Facetime or such other visual means of communication at any time as arranged by the father and the mother do all such things to facilitate such communication and with such communication to occur on a daily basis.

5. Such further or other orders that the Court deems fit.

Annexure B

Worsfield & Norton

Father’s alternate Proposal in the event relocation is permitted.

1. That the parties share equal parental responsibility for the child X born (omitted) 2011 (“the said child”).

2. That the said child do live with the parties as follows:-

   2.1. For the remainder of term of 3 in 2014 until the end of term 4 in 2014 (fortnightly cycle)

   2.1.1.With the father from Monday 9 AM to Thursday 9 AM (3 nights);

   2.1.2.With the mother from Thursday 9 AM to Friday 9 AM (1 night)

   2.1.3.With the father from Friday 9 AM to Sunday 9 AM (2 nights)

   2.1.4.With the mother from Sunday 9 AM to Monday 9 AM the following week (8 nights).

   2.1.5.That the handovers take place at the mother’s parents’ residence on (omitted) and that the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight.

   2.1.6.That the extended 8 night period with the mother coincide with the mother’s care of Y and Z.

   2.2. For the Christmas school holidays commencing December 2014 (fortnightly cycle)

   2.2.1.With the father from Sunday 7 PM to Thursday 3 PM (4 nights)

   2.2.2.With the mother from Thursday 3 PM to Friday 3 PM (1 night)

   2.2.3.With the father from Friday 3 PM to Sunday 3 PM (2 nights)

   2.2.4.With the mother from Sunday 3 PM to Sunday 7 PM the following week (7 nights)

   2.2.5.That the times in 2.2.1, 2.2.2, 2.2.3 and 2.2.4 are subject to X spending Christmas with the mother from 24 to 26 December 2014.

   2.2.6.That handovers take place at the mothers’ parents’ residence in (omitted), save 7 PM Sunday exchanges to be at the (omitted) upon X’s arrival on (omitted) (Boat departing (omitted) at 6 PM).

   2.2.7.That X’s time with the mother coincide with the mother’s care of Y and Z.

3. SAVE THAT IN THE EVENT that the mother has sold and settled (business omitted) and that the mother’s parents have sold and settled their (omitted) residence then as follows:

   3.1.1.with the father from Monday 5:30 PM to Sunday 5:30 PM (6 nights)

   3.1.2.with the mother from Sunday 5:30 PM to Monday 5:30 PM the following week (8 nights)

   3.1.3.That handovers take place at (omitted), with the father to accompany X and facilitate same (Boat departing (omitted) at 6 PM on Mondays and Boat departing (omitted) at 4:30 PM on Sundays).

   3.1.4.That the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight and that the fathers travel on the ferry be the sole cost of the mother, being four crossings per fortnight.

   3.2.During each of the school terms in 2015 (fortnightly cycle):

   3.2.1.With the father from Thursday 9:30 AM to Monday 9:30 AM (4 nights) in each alternate week or for such other consecutive four (4) day block outside of kindergarten attendance;

   3.2.2.With the mother Monday 9:30 AM to Thursday 9:30 AM the following week (10 nights).

   3.2.3.That handovers take place at (omitted), with the father to accompany X and facilitate same (Boat departing (omitted) at 10 AM on Thursdays and Boat departing (omitted) at 8:30 AM on Mondays).

   3.2.4.That the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight and that the fathers travel on the ferry be the sole cost of the mother, being four crossings per fortnight.

   3.2.5.That X’s time with the mother coincide (principally) with the mother’s care of Y and Z.

   3.2.6.That on the occasions when the 8:30 AM ferry from (omitted) is unavailable for Monday 9:30 AM handover (approximately 21 July to 7 Sept annually), then the 7:30 AM ferry shall be taken resulting in a handover at 8:30 AM Monday at (omitted).

   3.3.During school holidays at the end of terms 1,2, 3 and 4 of 2015 including Christmas School Holidays:

   3.3.1.X to live with the parties in alternate weeks from Sunday to Sunday with handover to occur at 5:30 PM subject to X spending Christmas with the father in 2015 and each alternate year thereafter (between 24 and 26 December) and Christmas with the mother in 2016 (between 24 and 26 December) and each alternate year thereafter.

   3.3.2.That handovers occur at (omitted) with the father travelling with X on the ferry and noting that flexibility may be required with respect to handover times during Christmas holidays NOTING the likelihood of further ferry crossings being scheduled during these holidays And Further Noting that ordinary ferry times will be to depart (omitted) at 6 PM on Sunday and to depart (omitted) at 4:30 PM on the following Sunday.

   3.3.3.That the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight and that the fathers travel on the ferry be the sole cost of the mother, being four crossings per fortnight.

   3.3.4.That X’s time with the mother coincide with the mother’s care of Y and Z.

   3.4.During each of the school terms commencing 2016 and thereafter:

   3.4.1.With the father each alternate weekend on (omitted) from 5:30 PM Friday (or Thursday if a public holiday) until Sunday at 5:30 PM (or Monday if a public holiday).

   3.4.2.That the father be at liberty to extend the alternate weekend times to encompass X’s pick up from school at weeks end and attendance at school the beginning of the following week, upon giving the mother no less than 1 weeks’ notice of same.

   3.4.3.With the mother for the balance of the fortnight.

   3.4.4.X to spend all long weekends (excluding the Easter long weekend) during school terms with the father from 5.30pm Friday to 5.30pm on a public holiday Monday.

   3.4.5.From 5.30pm Maundy Thursday to 5.30pm Easter Monday 2015 and each alternate year thereafter.

   3.4.6.That handovers occur at (omitted) with the father travelling with X on the ferry Noting that times will be the Boat departing (omitted) at 6 PM on Sunday and Boat departing (omitted) at 4:30 PM on the following Sunday And Further Noting that in the event that the 4:30 PM ferry from (omitted) is unavailable then the 5:30 PM shall be taken, resulting in 6:30 PM handovers, unless otherwise agreed.

   3.4.7.On the occasions when neither of these ferries are available (approximately 21 July to 7 Sept annually), then alternative arrangements (with handover no later than 6:30 PM at (omitted) or 8 PM at Ms Norton's’s residence) shall be implemented by the parties.

   3.4.8.That the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight and that the fathers travel on the ferry be the sole cost of the mother, being four crossings per fortnight.

   3.5.During School Holidays at the end of Terms 1, 2 and 3 of 2016, and same thereafter:

   3.5.1.2.6.1   With the father for all but the first day and the last two days of the school holiday periods.

   3.5.2.2.6.2   That handovers occur at (omitted) with the father travelling with X on the ferry Noting that ferry times will be the Boat departing (omitted) at 6 PM on Sunday and Boat departing (omitted) at 4:30 PM on the following Sunday.

   3.5.3.That the parties share the cost of X’s travel on the ferry equally, being two crossings per fortnight and that the fathers travel on the ferry be the sole cost of the mother, being four crossings per fortnight.

   3.6.Christmas School Holidays 2016 and all Christmas school holidays thereafter:

   3.6.1.With the father for all but 3 weeks (spent with the mother) in the holidays, save for the first day and last two days of the school holidays.

   3.6.2.2.7.2   That X’s time with the mother coincide with Y and Z in accordance with the above and the mother gives notice of her requested weeks by no later than the end of school term 3.

   3.6.3.That handovers occur on Sunday at 5:30 PM at (omitted) with the father travelling with X on the ferry Noting that ferry times will be the Boat departing (omitted) at 6 PM on Sunday and Boat departing (omitted) at 4:30 PM on the following Sunday.

   3.6.4.That the parties share the cost of X’s travel on the ferry equally, and that the fathers travel on the ferry be the sole cost of the mother.

   3.7.That in the event that special occasions such as Mother’s Day, the mother’s birthday and Y and Z’s birthdays fall on the day before or the day after a handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the mother.

   3.8.That in the event that special occasions such as Father’s Day or the father’s birthday fall on the day before or the day after handover, the parties shall extend or bring forward the handover time to facilitate X spending the special occasion with the father.

   3.9.For X’s birthday the parties spend time (half a day each) with X on his birthday in each year with the location to alternate between (omitted) and Adelaide.

   3.10.That any changes to the care arrangements for the children Y and Z shall not be reflected in changes to the care arrangements for X as provided for herein unless otherwise agreed between the parties.

1. That upon the father relocating to Adelaide X live with each parent on a week about basis from Sunday to Sunday or as otherwise agreed.

2. That the parties be at liberty to attend at all school events, sporting events, extra curricular activities, parent teacher interviews and assemblies at the said child’s school.

3. That in the event of the transition from school terms to holidays (and vice versa) results in X spending significantly larger than usual blocks of time in one parents care (i.e. in aligning X’s time with Y and Z’s time with the mother) then X is to spend the weekend with the other parent with times to be mutually agreed.

4. That in the event of ferry cancellations (due to inclement weather or breakdown) or unavailability, then the father utilise the next best travel option nearest to the scheduled handover.

5. That the said child be permitted to communicate with the parties by way of telephone to facilitate the use of Skype, Facetime or such other visual means of communication at any time as arranged by the parties and the mother do all such things to facilitate such communication and with such communication to occur on a daily basis.

6. That X be enrolled at and attend such kindergarten and primary school as is agreed between the parties or in default of agreement as ordered by this Honourable Court.

7. That the parties are restrained and injunctions are hereby granted restraining each of them from enrolling the said child at any kindergarten or primary school without the prior written consent of the other having first being obtained or an order of this Honourable Court.

Annexure C

PROPOSED ORDERS SOUGHT BY THE WIFE

1. That the parties have equal shared parental responsibility.

2. That the child, X (born (omitted) 2011) live with the Mother.

3. That the Mother be permitted to relocate from (omitted) to Adelaide with the child.

4. That the Father spend time with the child on (omitted) as follows:

   4.1Until the commencement of school Term 4 2014, each alternate week:-

   4.1.1From 9.00am  Monday until 9.00am Wednesday; and

   4.1.2From 9.00am Friday until 9.00am Sunday

   with handovers to occur at the Mother’s parents home on (omitted).

   4.2During school Term 4 2014, each alternate weekend, from Thursday evening until Sunday ( or Monday if a public holiday) evening.

   4.3During the Christmas school holidays December 2014/January 2015, each alternate week, from Tuesday evening until Sunday evening subject to the same being suspended, if necessary, to facilitate X being in the care of the mother from 24 December 2014 to 26 December 2014.

   4.4During Term 1 2015 each alternate weekend, from Thursday evening until Sunday( or Monday if a public holiday) evening;

   4.5During the end of Term 1 2015 school holidays each alternate week, from Tuesday evening until Sunday evening;

   4.6During school Term 2 2015, each alternate weekend, from Thursday evening until Sunday( or Monday if a public holiday)  evening

   4.7During the end of Term 2 2015 school holidays, each alternate week , from Monday evening until Sunday evening;

   4.8During Term 3 2015, each alternate weekend, from Thursday evening until Sunday ( or Monday if a public holiday) evening;

   4.9During end of Term 3 2015 school holidays, each alternate week, from Monday evening until Sunday evening;

   4.10During the Christmas school holidays December 2015/January 2016, each alternate week, from Sunday evening  until the following Sunday evening and if the same is not included in the same, also from the 24 December 2015 to the 26 December 2015;

   4.11Commencing school Term 1 2016 and during each school term thereafter, each alternate weekend, from Friday (or Thursday if a public holiday) evening until Sunday (or Monday if a public holiday) evening;

   4.12Commencing with the end of Term 1 2016 school holidays and during each school holiday period  thereafter, each alternate week, from Sunday evening until the following Sunday evening, with the same to be varied where necessary, to facilitate X spending between the 24 and the 26 of December each alternate year with the mother commencing in 2016 and with the father for the same period each intervening year  commencing in 2017

5. That the father’s time with X, coincide with the alternate weeks that Z and Y are in the care of their father Mr J.

6. That to facilitate the father’s said  time that:-

   6.1Save as provided for in paragraph 4.1 herein, handover for X take place at (omitted);

   6.2The father accompany X on the Sealink Ferry from (omitted) to (omitted) and return.

   6.3That the father make all reasonable attempts to:

   6.3.1Secure any discount or free fare available to him on the Sealink ferry;

   6.3.2Secure the “cruiser/accompanying adult” fare (the “c/aa fare”) provided by Sealink on some trips (whereby the accompanying adult travels for free both ways and the child travels at normal child rates) for X and the father to:

   (a)travel on the 6.00pm (or 7.00 pm  if the 6.00 pm does not have the c/aa fare) Sealink Ferry from (omitted) to (omitted);  and

   (b)travel on the 5.30 pm (or 4.30 pm if the 5.30 pm does not have the c/aa fare) Sealink Ferry from (omitted) to (omitted).

   and if the c/aa fare is not available, then the father and X shall travel on the 6.00pm Sealink Ferry from (omitted) to (omitted) and the 5.30 pm Sealink Ferry from (omitted) to (omitted) and the father shall give the mother not less than 24 hours notice of the travel bookings made for the said travel.

   6.4That the costs of the father and X (no vehicle) travelling together on the Sealink Ferry from (omitted) to (omitted) and return be paid for by the father and that  the mother reimburse the father for the same within 7 days of presentation to the mother  by the father of his invoice/receipt for he and X’s joint travel. 

7. On any occasion that the father intends to spend a weekend or a holiday period with X in Adelaide or somewhere else in South Australia or interstate:

   7.1Handover of X shall occur at the Mother’s home;

   7.2The father shall pay the costs of his travel to and from (omitted).

8. That the Mother facilitate:

   8.1X telephoning the father whenever he requests;

   8.2The father having telephone contact with X two (2) times each week with one (1) of these phone calls to be via Facetime for a maximum of ten (10) minutes.