Yalpat & Yalpat (No. 2)

[2020] FamCA 973

FAMILY COURT OF AUSTRALIA

Yalpat & Yalpat (No. 2) [2020] FamCA 973

File number(s):	CAC1305 of 2018
Judgment of:	GILL J
Date of judgment:	19 November 2020
Catchwords:	FAMILY LAW – CHILDREN – consent orders – live with Mother – handover arrangements – time with Father – religious observances – travel – where orders ameliorate risks of conflict between the parties – where orders increase the Father’s time with the child
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Rice & Asplund (1979) FLC 90-725
Number of paragraphs:	8
Date of hearing:	19 November 2020
Place:	Chambers

ORDERS

CAC1305 of 2018

BETWEEN:

MS YALPAT

Applicant

AND:

MR YALPAT

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	19 NOVEMBER 2020

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The parties have equal shared parental responsibility for X born on … 2017 (“the child”) and the Mother and Father shall be permitted to raise the child according to his or her own religious faith during the time that the child spends time with him or her.

3.The Father is restrained from causing any person to circumcise the child without the express written consent of the Mother or Court Order;

4.The child live with the Mother.

5.Until the commencement of term two 2021, the child spend time with the Father as follows:

(a)In week one, from 9:00am Wednesday to before pre-school Thursday NOTING THAT the Father is to pay for half of all the child’s educational costs;

(b)In week two, from 9am Saturday to before school Monday; and

(c)At further and additional times as agreed between the parties in writing.

6.From term two 2021 and thereafter, the child spend time with the Father as follows:

(a)In week one, from after school/pre-school Wednesday to before school/pre-school Thursday;

(b)In week two, from after school/pre-school Friday to before school/pre-school Monday; and

(c)At further and alternate times as agreed between the parties.

7.From term two 2022 and thereafter, the child spend time with the Father as follows:

(a)In week one, from after school Wednesday to before school Friday;

(b)In week two, from after school Friday to before school Monday; and

(c)At further and alternate times as agreed between the parties.

8.That, prior to Order 6 commencing, the Father shall complete the Circles of Security Course program and provide evidence of same to the Mother and in the event the course is not completed, the Father will continue to spend time with the child in accordance with Order 5 above.

9.That, in 2022, the father’s time pursuant to Orders 5, 6 and 7 above is suspended during the terms one, two and three school holidays and the Father spend time with the child during the school holidays for the first four nights of the holidays and the last four nights of the holidays, at times to be agreed between the parties.

10.In the 2022 term four school holidays the Father’s time with the child pursuant to Orders 5, 6 and 7 above is suspended and the Father shall spend time with the child for four blocks of four nights at dates and times to be agreed between the parties.

11.From 2023, the child spend time with his mother for the first half of the terms one, two and three school holiday periods commencing in years ending in an even number, and the second half of all school holiday periods with his father commencing in years ending in an odd number and alternating thereafter;

12.From 2023, the child spend time with his parents during the term four school holidays in a ‘week about’ arrangement commencing on the last Friday of term with changeover to occur each Friday at 4pm and the Mother shall have the first week in even years and the Father the first week in odd years;

13.From 2026, the child spend time with his mother for the first half of all school holiday periods commencing in years ending in an even number and the second half in years ending in an odd number and with his father for the second half of all school holiday periods commencing in years ending in an even number and the first half of the holidays in a year ending in an odd number.

14.That for the purposes of 9, 10, 11, 12 and 13 above, in the absence of any written agreement between the parties to the contrary, the following Orders apply:

(a)the first half of school holidays is deemed to commence at the end of classes on the last day of school;

(b)The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year; and

(c)The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or at 5:00pm on the middle Wednesday of the school holidays if the relevant school holiday period is for an odd number of weeks.

(d)One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2.  If the number of days are not even, the Father is to have the extra day in even years and the Mother is to have the extra day in odd years.

15.That, notwithstanding the above Orders, the child spend special occasions with the parents as follows:

(a)The child spend time with the Father from 9am to 5pm on 1 October each year if it is a non school day and from after school to 7:30pm if that day is a school day;

(b)for the child’s birthdays each year the parent with whom the child is living or spending time make the child available to spend time with the other parent for a period of at least two hours on a school day and four hours on a non school day at a time as agreed between the parties with changeover location to be agreed between the parties;

(c)the child shall spend time with the Mother from 5:00pm Christmas Eve to 5:00pm Boxing Day.

(d)the child shall spend time with the Mother from 5:00pm the day preceding Mother’s Day to 5:00pm each Mother’s Day and with the Father from 5:00pm the day preceding Father’s Day until 5:00pm each Father’s Day unless otherwise agreed between the parties in writing.

(e)The child shall spend three nights with the Father each year for the celebration of Religious festival 1 and the Father shall provide the Mother with the proposed dates for Religious festival 1 at least 14 days prior to it occurring;

(f)That the child shall spend three nights with the Father for the celebration of Religious festival 2 and the Father shall provide the Mother with the proposed dates at least 14 days prior to it occurring;

(g)That the child spend time with the Mother each Easter from 4pm Easter Thursday to 4pm Easter Monday each year.

16.In the event that the child is unable to attend a scheduled contact visit with the Father by reason of the child suffering illness, an accident or injury then the Mother shall provide the Father with reasonable notice and provide a medical certificate for the child as soon as practicable.

17.In the event that the child does not spend time with the Father for more than one consecutive scheduled visit due to illness or injury or other medical reason than the Mother shall facilitate make-up time for the Father as soon as is practicable and no later than 21 days from the child’s recovery from his said illness, accident or injury;

18.In the event that either party is not able to supervise the child for a period of over 48 hours the parent must inform the other parent and give them first option to care for the child during that period.

Changeover

19.That all changeover occur at the child’s pre-school or school unless as agreed between the parties.

20.That, until 1 November 2021, in the event changeover does not occur on a school day, the parties shall attend changeover at the Suburb F police station and to that end, the following shall apply:

(a)The incoming parent shall arrive at the station 10 minutes prior to changeover;

(b)The outgoing parent shall deliver the child to the incoming parent’s care and shall then leave;

(c)The incoming parent shall remain in the station for a period of five minutes to allow the outgoing parent to leave;

(d)Neither party or their agents shall film the changeover unless as expressly agreed to by each party in writing.

21.That, from 1 November 2021, changeover shall occur at the child’s school or care facility and if changeover is to occur on a non school day it shall occur at McDonalds Suburb F on R Street, unless as agreed between the parties.

Schooling and Extra-Curricular

22.That, unless as agreed between the parties in writing, the child shall attend W School until he ceases his formal education;

23.That both parties will ensure that the child attends all agreed enrolled extra curricular activities including games, training, presentations and similar, while the child is in their care;

24.That, in the event the caring parent cannot take the child to his agreed activities, the caring parent is to provide the other parent with the first option to take the child;

25.That both parties, their families and/or friends and/or partners are at liberty to attend any of the child’s extra curricular activities or schooling activities and functions.

Counselling

26.The parties shall continue to engage Dr U, psychologist, V Group (“the family therapist”) to assist in their parenting of X.

27.The following shall apply in relation to the family therapy:

(a)The parents will facilitate the child attending upon the family therapist and attend such sessions as may be directed by the family therapist;

(b)The frequency and duration of sessions with each parent and the child are to be as directed by the family therapist;

(c)The family therapist may, in their discretion, include either parent in any appointment if she considers this will assist in her treatment of the child;

(d)The parents are restrained from providing information or documents to the family therapist unless in response to a direct inquiry or request from the family therapist;

(e)Each parent shall actively support, promote and encourage the child to participate in the family therapy sessions;

(f)The costs of family therapy are to be paid as follows:

(i)The child’s attendance shall be paid equally by the parents;

(ii)The Mother’s sessions shall be paid by the Mother;

(iii)The Father’s sessions shall be paid by the Father;

(iv)The cost of any joint sessions, or other work requested of the family therapist by both parents is to be paid equally;

(g)The parents are restrained from disclosing any communications or admissions made during the family therapy for the purpose of these proceedings (or any other proceedings), except in relation to communications or admissions that indicate a child has been abused or is at risk of abuse unless, in the opinion of the Court, there is sufficient evidence of the admission or disclosure available to the Court from other sources;

(h)The family therapist is not required to disclose any communication or admission made during family therapy (including by way of subpoena), unless necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory;

(i)The family therapist may, in her discretion, disclose any communications or admissions made during the family therapy if either parent consents to disclosure of their own communication or admission, or both parents consent for any communication or admission by X to be disclosed; and

(j)The family therapist may, in her discretion, provide feedback (including written feedback) to the parties about the progress of therapy and any recommendations in relation to the child.

Other

28.That the parents will:

(a)Keep each other informed at all times of their contact telephone number and email address and shall notify the other in respect to any change in writing within 24 hours;

(b)Keep each other informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise such treating practitioners to provide the other parent with information that they are lawfully able to provide about the child;

(i)Inform each other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child; and

(ii)Inform the other parent as soon as possible of any medical emergency in which the child is involved and require treatment with such information to include the name and address of any medical practitioner who provides diagnosis or treatment to the child, and the parents shall authorise such practitioner to speak directly with the other parent.

29.Upon provision of these Orders to the Principal or Co-ordinator of any educational facilities or third party providing extracurricular activities in which the child is enrolled, the relevant individual or body are hereby authorised and empowered by this Order to provide the parties with any information about the child's progress and related activities and supply the parties with copies of photographs, certificates, awards, reports and any other documents relating to the child at the request and cost of the parent requesting same.

30.Upon provision of these Orders to all treating medical practitioners and allied health providers of the child, the practitioners or providers are hereby authorised and empowered by this Order to provide all medical history, information, reports, diagnosis and any other relevant information about the child's welfare, development and progress at the request and cost of the parent requesting same.

31.Both parties are at liberty to attend the child's sporting, extra-curricular or organised child care activities and any assemblies or gatherings at the child's school to which parents are usually invited or rostered to assist, irrespective of which parent the child is living with pursuant to these Orders and IT IS NOTED that neither party shall be in breach of any current Family Violence Order concerning the specified distance that he is she is to be outside of, if the other party is also at the child’s function.

32.That the parents do all acts and things reasonably necessary to ensure that he or she follows all recommendations made by the child’s treating health providers.

33.That each parent:

(a)refrain from physically disciplining the child;

(b)refrain from discussing these proceedings or the dispute with the child or doing so in the child’s presence or allowing any other person to do so;

(c)refrain from denigrating the other parent, their respective partners, family or friends directly or in the presence or hearing of the child;

(d)will use his or her best endeavours to ensure that no one else denigrates the other parent in the presence or hearing of the child; and

(e)actively encourage and facilitate the relationship with the other parent.

34.That the parties shall at all times behave and conduct themselves courteously and respectfully towards the other party when in the hearing or sight of the other parent or child at changeover and each party shall do all things necessary to ensure that his or her delegates acts civilly and in a polite business-like manner to ensure the child’s transition between the parties is as seamless and stress-free for all involved, and for all who may also be attending, as is reasonably possible.

35.The parties are restrained from engaging or communicating with each other by any means otherwise than by way of the parenting application or text and such communication shall be restricted to matters concerning contact times and the care, welfare, and development of the child except in the case of emergency where the parties may contact the other parent by whatever means necessary.

36.Each party is responsible for providing all food, supplies, clothing, medication and all other necessities during his or her time with the child.

37.Each party shall ensure the child is transported in a safe manner in any motor vehicle and that the child is secured properly in an approved and appropriate child restraint and car seat applicable to his age and state of development.

38.Neither party shall expose the child to any video, film, material or media which is rated above G, or when the child attends primary school rated above PG without the written consent of the other party, or allow any other person to do so.

39.The parties will in future communicate via text and by an agreed parenting App and shall do all things necessary to set up, register for, and contact each other within 7 days of changing parenting Apps.

40.The parties shall do all things necessary to minimise the exposure of conflict to the child and the parties and the use of a parenting App to communicate or text to one another at all times shall be respectful and civil.

Travel

41.That should either parent wish to travel with the child outside of 300km from the Canberra/Queanbeyan region, travel must be on the following basis unless agreed in writing:

(a)The traveling party must ensure that such travel arrangements do not fall within the other parent’s scheduled time with the child unless as agreed; and

(b)The traveling party must, within 48 hours prior, inform the other parent of where the child will be travelling and must provide contact details of where the other parent can reach the child.

42.That the Father shall, by on or before 1 February 2021, discontinue any proceedings he has commenced in relation to the Mother, the child or the marriage, in Country B or any other country outside of the Commonwealth of Australia and he shall provide interpreted documents to the Mother’s solicitor evidencing same.

43.That the Father is injuncted from commencing proceedings in any country other than the Commonwealth of Australia with respect to the Mother, the child or the marriage.

44.That, in the event the Father proposes to travel internationally with the child the Father shall register these Orders with the appropriate authority in Country B and provide written evidence of same to the Mother;

45.That, in the event the Father intends to leave the Commonwealth of Australia when he is scheduled to have contact with the child he is to provide no less than 14 days’ notice of his intention to leave the Commonwealth to the Mother, in writing, not including text message and will inform the Mother of his expected dates of travel and return AND IT IS NOTED that the Mother is not expected to provide ‘make up’ time to the Father however she will facilitate the child speaking to his father via skype or similar at least once per week between 6pm and 6:30pm AEST as agreed.

46.That, until further orders, the Father, Mr Yalpat born … 1979, and his servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X Yalpat, born … 2017, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure from the Commonwealth of Australia and maintaining the child’s name on the watchlist until further order.

NOTATION

AIt is agreed between the parties that Rice & Asplund does not apply to the issue of the X’s travel to Country B with the Father AND IT IS NOTED that it is the Father’s desire to travel with the child to Country B and the Mother does not agree.

BThe Father indicates that he will pay for half of the child’s educational, medical and extra curricular expenses.

CThat, in the event the Father’s parents or relatives visit Australia the Father will request that the child spend additional time with him and the Mother has indicated that she agrees to reasonable contact if requested.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yalpat & Yalpat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. Shortly before the scheduled trial of this matter the parties have filed Consent Terms agreed to by the Mother, Father and the Independent Children’s Lawyer (“the ICL”).  The Terms filed by the parties are comprehensive, allocating equally shared parental responsibility, dealing with religious differences between the parties and providing a graduated increase in the time that X will spend with his father while he lives with his mother. 

2. The proceedings were marked by a high degree of conflict between the parties and a number of allegations of family violence.  The Terms of the orders prepared by the parties support meaningful relationship for X with each parent and the benefits of such and ameliorate risks of family violence in a number of ways. 

3. Firstly, the orders tightly control the manner in which the parties are able to communicate with each other and the manner in which handovers will take place.  Communication and handovers have been a flashpoint for conflict between the parties and the careful regulation of those arrangements ameliorates risks of conflict between them. 

4. Further, the orders anchor and increase the time that X will spend with his father, again resolving an area of grave conflict between the parties. 

5. Additionally, the parties have agreed to continue to take part in therapy to assist them in their parenting of X.  Their ongoing commitment to that course is a matter which gives confidence in the context of their agreement to these orders and points to improvement in their capacity to co-parent, despite the difficulties that each encounters with the other.  In order to increase the efficacy of the arrangements with the therapy the parties have both agreed to be bound by orders preventing their use of the therapy sessions in litigation in the future.  They will be bound by those provisions while ever those orders remain in force. 

6. Finally, one matter of contention between the parties is as to the potential for X to travel to Country B with his father in the future.  It should be noted that the Father is Turkish and he relocated from Country B to be with X.  At present the orders provide so that the Father is unable to remove X from Australia.  He is, however, obliged to cease all litigation in Country B in relation to the breakdown of the relationship or in relation to X and is restrained from instituting further proceedings in Country B in relation to such.  The parties have agreed, reasonably, that the principles in Rice & Asplund (1979) FLC 90-725 should not apply in respect of a future application by the Father seeking liberty to travel to Country B with X.

7. In the context of a high conflict case, where the parties have been able to come to agreement to orders which carefully regulate their interactions and which support proper relationships between X and each of his parents, the orders proposed by the parties and the ICL are in X's best interests and should be made.

8. Accordingly, I make orders in terms of the Minute of Final Consent Orders.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       19 November 2020