FAMILY COURT OF AUSTRALIA

ADAMS & PETERS	[2010] FamCA 233	

FAMILY LAW – CHILDREN - With whom a child spends time - Orders are made with the consent of the parties and the Independent Children’s Lawyer that the child live with the mother, spend time with the father every third weekend during school term and half of school holidays and the mother have sole parental responsibility except for medical and educational decisions for which the parties shall have equal shared parental responsibility - Father seeks a further order that he spend one additional weekend per school term with the child, which the mother opposes - Order made in accordance with the father’s proposed order	

Family Law Act 1975 (Cth)	

APPLICANT:	Ms Adams	

RESPONDENT:	Mr Peters	

Independent children’s lawyer:	Mr Cumming, Lyons Barnett Kennedy	

FILE NUMBER:	NCC	3133		of	2008	

DATE DELIVERED:	18 March 2010	

PLACE DELIVERED:	Newcastle	

PLACE HEARD:	Newcastle	

JUDGMENT OF:	Justice Austin	

HEARING DATE:	17 March 2010	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Kelly 	

SOLICITOR FOR THE APPLICANT:	Maclean & Curtis Solicitors	

COUNSEL FOR THE RESPONDENT:	Mr Allan	

SOLICiTOR FOR THE RESPONDENT:	Willis & Bowring Solicitors	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Boyd	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Cumming, Lyons Barnett Kennedy	

Orders

BY CONSENT, IT IS ORDERED THAT
1.	With the consent of the parties and the Independent Children’s Lawyer, it is ordered in accordance with Exhibit ICL3:
1.1	All previous Orders relating to the child … born on … March 2006 (“the Child”) are vacated.
1.2	The parties shall have joint responsibility for significant educational and medical decisions for the child which shall be determined by consultation and agreement between the parties with the agreement being in writing.
1.3	Subject to Order 1.2 hereof, the mother shall have sole parental responsibility for decisions regarding the child.
1.4	The child live with the mother.
1.5	The father will spend time with the child from the commencement of these Orders as follows:
1.5.1	For four weekends, in the regional centre area, for a period of four hours on each Saturday and Sunday, the times to be agreed between the parties however in default of agreement:
1.5.1.1	12 noon to 4.00pm on the Saturday; and
1.5.1.2	9.00am to 1.00pm on the Sunday.
1.5.2	Thereafter for two weekends in the regional centre area from 9.00am to 4.00pm each Saturday and Sunday.
1.5.3	Thereafter two weekends in the regional centre area from Saturday 10.00am to Sunday 4.00pm and the father shall ensure the paternal grandmother is present during these weekends.
1.5.4	Thereafter on the 2nd, 5th and 8th weekends of each school term from Friday 6.30pm to Sunday 5.00pm or in the event of a long weekend Monday 5.00pm.
1.6	Upon the commencement of Order 1.5.4 hereof in school holidays as follows:
1.6.1	The first half of each of the school holidays at the end of Terms 1, 2 and 3 each year with changeovers to occur at 12 noon on the first Saturday and conclude at 12 noon on the middle Sunday of each holiday period.
1.6.2	For the 2010 Christmas school holidays three non-consecutive weeks with the father to give the mother two month's notice of the three weeks during the Christmas school holidays that he requires which may include Christmas Day in 2010. 
1.6.3	For the 2011 Christmas school holidays for the period 31 December 2011 to 14 January 2012 and from 21 January 2012 to 28 January 2012.
1.6.4	From 2012 and onwards, one half of each Christmas school holiday period, being the first half in even numbered years and the second half in odd numbered years with the changeovers to occur at noon on the first, middle and last Saturdays of each holiday period.
1.7	During the periods that the father is spending time with the child in the regional centre area the mother shall not approach the child, the father or members of his family and shall use her best endeavours to ensure that members of her family also do not so approach.
1.8	For the purpose of changeovers, when the father is required to spend time with the child in the regional centre area the changeovers shall occur at the A McDonalds, and thereafter at the B McDonalds unless otherwise agreed in writing between the parties.
1.9	The father shall provide a mobile phone to the mother for the sole use of the child’s communication with the parents and the parents shall ensure that the phone shall remains charged and available to the child to communicate with the parents.
1.10	The child shall communicate with the father by telephone as follows:
1.10.1	Each Tuesday, Thursday and Sunday (when the child is not otherwise spending time with him) between the hours of 5.00pm and 6.00pm;
1.10.2	On the child’s birthday and the father’s birthday between the hours of 5.00pm and 6.00pm;
1.10.3	On Father’s Day, Easter Sunday and Christmas Day between 9.00am and 10.00am. 
Implemented by father telephoning the child’s mobile telephone number at the appointed times and the mother ensuring that the child is available to speak with the father.
1.11	The child shall communicate with the mother by telephone (when the child is in the care of the father) as follows:
1.11.1	Each Tuesday, Thursday and Sunday between the hours of 5.00pm and 6.00pm;
1.11.2	On the child’s birthday and the mother’s birthday between the hours of 5.00pm and 6.00pm;
1.11.3	On Mother’s Day, Easter Sunday and Christmas Day between 9.00am and 10.00am.
Implemented by mother telephoning the child’s mobile telephone number at the appointed times and the father ensuring that the child is available to speak with the mother.
1. 13 	The father shall communicate with the child by letters, parcels and cards via the mother's Post Office Box and the mother shall provide details of the Post Office Box within seven days of the commencement of these Orders and if such Post Office Box changes, within seven days of such change.  
1.14	If at any time the child wishes to provide mail, cards or artwork to the father the mother shall ensure that she facilitates the forwarding of such material to the father.  
1.15	The father shall be able to communicate with the child by email from the child's commencement of Year 6 at primary school and by internet means such as Facebook or otherwise from the child commencing high school.
1.16 	Neither party shall denigrate or permit any other person to denigrate the other parent, or members of their extended families, in the presence or in the hearing of the child and shall make best endeavours to ensure people speak about the other party in a reasonable and non‑derogatory manner.
1.17	Each parent contact the other parent as soon as practicable (which may be by SMS message) should any of the following events occur while the child is in their care:
1.17.1 	She becomes seriously ill;
1.17.2 	She is hospitalised;
1.17.3	She is involved in an accident which requires treatment by a medical practitioner.
1.18 	The mother shall authorise the child's school to provide to the father information regarding the schooling including any school reports, newsletters and such information which the school normally provides to parents.
1.19	Both parties shall ensure that when the child is transported in a car that the car is to be fitted with the appropriate age related child restraint device and for that purpose each party is to provide the other party within 14 days of the date of these orders with a certificate from an authorised fitting station verifying that the car that they intend to transport the child in complies with the child restraint legislation.	
IT IS FURTHER ORDERED
2	In addition to the time spent by the child with the father pursuant to Order 1.5 hereof and upon commencement of Order 1.5.4, the child shall also spend time with the father on one further weekend each school term subject to the following conditions:
2.1	The weekend chosen will be at the election of the father upon him providing not less than 21 days written notice to the mother.
2.2	The weekend elected by the father will commence at 6:30 pm on Friday and conclude at 5:00 pm on Sunday.
2.3	Changeover is to occur at the McDonald’s Restaurant, A.
2.4	The father and child must remain within the regional centre region for the duration of the weekend.
2.5	The weekend chosen must not result in the child spending the weekend closest to her birthday with the father in consecutive years.
2.6	The weekend chosen must not be the weekend comprising Mother’s Day.
3	Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
4	The Application for Costs made by the Independent Children’s Lawyer against both the applicant mother and respondent father is dismissed.
5	All outstanding applications are dismissed.
6	The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
7	All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

NOTATIONS
A.	Paragraph 12 was excised from Exhibit ICL3 with the consent of both parties and the Independent Children’s Lawyer.
B.	Amendments were made to paragraph 9 within Exhibit ICL3 with the consent of both parties and the Independent Children’s Lawyer.
C.	The parties and the Independent Children’s Lawyer have stated that they do not require publication of reasons for the determination resulting in Order 2 hereof.
D.	The Independent Children’s Lawyer has stated that he does not require publication of reasons for the determination resulting in Order 4 hereof.

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

Family Court of Australia at Newcastle	

FILE NUMBER: NCC 3133 of 2008

MS ADAMS	
Applicant

And

MR PETERS 	
Respondent

And

INDEPENDENT CHILDREN’S LAWYER 	

EX TEMPORE

REASONS FOR JUDGMENT
Introduction
1.	These are parenting proceedings relating to the parties’ child, born in March 2006, who is now just aged four years.  
2.	The proceedings are contested by the biological parents and the Independent Children’s Lawyer.
3.	The allegations of family violence made by the applicant mother against the respondent father were determined by separate judgment published on 13 October 2009.  
4.	After the publication of that judgment the matter was listed for further hearing on 17 March 2010 to determine proper parenting orders in respect of the child.  Commendably, the parties substantially narrowed the ambit of their dispute, through negotiation assisted by their legal representatives, leaving the Court to decide one discrete issue about the extent of the time to be spent by the child with the father.
5.	The Independent Children’s Lawyer tendered a Minute of Orders setting out the orders proposed by him.  That Minute became Exhibit ICL3.  
6.	The mother agreed with the orders set out within Exhibit ICL3 in all respects and sought no other orders.  
7.	The father also ultimately agreed with the orders set out within Exhibit ICL3 in all respects.  However, the father tendered a Minute of Order setting out a further order that he proposed should be grafted onto the orders otherwise agreed within Exhibit ICL3.  The father’s Minute of Order became Exhibit F2 and it provided as follows:
“That at the election of the father, once per school term, with 14 days notice in writing to the mother, the father spend a further weekend from Friday 6:30 pm to Sunday 5:00 pm in the greater [regional] area, such order not to result in the child spending her birthday weekend with the father in two consecutive years, changeover to occur for this purpose at […] McDonald’s [A]”
8.	The Independent Children’s Lawyer adopted the order in Exhibit F2, but the mother remained opposed to it.  
9.	The single issue to be determined then is whether the order in Exhibit F2 should be made in addition to those orders in Exhibit ICL3.
Evidence relied upon
10.	The applicant mother relied upon her affidavit filed on 3 February 2010.
11.	The respondent father relied upon his affidavit filed on 13 January 2010.
12.	The Independent Children’s Lawyer relied upon the Family Report dated 22 February 2010, authored by the Family Consultant Ms T.  The contents of the Family Report were not the subject of sworn evidence but the parties consented to the Family Report being admitted into evidence so as to satisfy the requirements of s 69ZU of the Family Law Act 1975 (“the Act”).
13.	Neither party, nor the Family Consultant, were required for cross-examination.  
14.	Neither party sought to adduce supplementary oral evidence.  
15.	The parties and the Independent Children’s Lawyer were mutually content for the Court to make its determination on the basis of their respective submissions.
Analysis of Evidence
16.	Although the dispute between the parties is now very narrow, it is still a dispute over a proper parenting order made under Part VII of the Act.  The Court’s decision must still therefore be informed by the best interests of the child.  
17.	Because of the narrowness of the residual dispute, not all criteria set out within s 60CC of the Act materially bear upon the outcome. Those subsections of s 60CC of the Act which are relevant include:
a)	s 60CC(2)(a), in that there is a benefit to the child in maintaining the meaningful relationship she has with the father;
b)	s 60CC(3)(b), in that the child has an attachment to the father that should be developed; and
c)	s 60CC(3)(e), in that there is a practical difficulty and expense incurred in the child moving between the parents because of their geographical separation.
18.	The child is attached to the father. As was set out within paragraph 34 of the Family Report:
“These observations indicate [the child] has formed an appropriate secondary attachment to the father…”
19.	The father lives in the southern suburbs of Sydney.  The mother lives near A, a regional centre of New South Wales. Neither party intends to move. The parties’ residences are separated by a drive of approximately six hours in duration.
20.	The parties have agreed that the child should live with the mother and spend time with the father pursuant to a graduated regime that accelerates reasonably swiftly.  After an initial period of some eight weeks the parties agreed that changeover should occur at B, which is approximately equidistant between their households.
21.	The parties are agreed that the child will spend three weekends each school term in the company of the father.  The father would like the child to spend one extra weekend per term with him and the Independent Children’s Lawyer agrees, but the mother is against that.  
22.	The father proposes that the weekend is spent in the area of A so as to reduce the travel burden on the child, and also the financial burden on the mother that she would incur by effecting a changeover at B.
23.	There are advantages to the proposal of the father and Independent Children’s Lawyer.  
24.	Firstly, because changeovers will be effected at A and the time spent in the region, there will be no travel burden upon the child.
25.	Secondly, there will be no financial burden upon the mother because of the local changeover venue.
26.	Thirdly, the child will have the benefit of spending some extra time with the father.  But for the geographical separation of the parental households, it is likely that the child would be spending more time with the father than is provided for by the agreed orders within Exhibit ICL3.
27.	Fourthly, the Family Consultant gives uncontradicted evidence at paragraph 38 of the Family Report as follows:
“It may be in [the child’s] best interests to spend time with the father each third or fourth weekend with an order allowing the father to spend additional weekend time if he is prepared to travel to the New England area and spend time in the area with [the child] for that weekend.  The father would need to give the mother appropriate notice in writing of his intention to travel to the New England area and the frequency should not exceed an alternate weekend regime”. 
28.	The proposal of the father and Independent Children’s Lawyer accords with that evidence.
29.	There are also some disadvantages to the proposal of the father and the Independent Children’s Lawyer.
30.	Firstly, the order introduces an element of uncertainty into the parenting regime which is otherwise quite certain by reference to the agreed orders within Exhibit ICL3. The parties remain staunchly antagonistic, despite their demonstration of conciliation by negotiating the terms of Exhibit ICL3.  The introduction of a further order which permits the father to unilaterally elect up to an extra four weekends per year that the child should spend time with him should not be permitted lightly.
31.	Secondly, the mother is dissatisfied with the Court’s judgment published on 13 October 2009.  Her allegations against the father were not vindicated.  The Family Consultant records at paragraph 13 of the Family Report:
“…the mother informs she is not willing to speak freely in interview of her views and concerns concerning parenting arrangements for [the child] following the judgment made by His Honour Justice Austin regarding her allegations of the father’s violence.  She reports she stands by her previous allegations that the father was historically violent to her and that he is not an appropriate carer for [the child].  The mother stated “but I will do as I am told”.”
32.	Although there is no evidence that the mother’s parenting capacity will be impaired by a determination on this remaining issue that is contrary to her wishes, I bear in mind that she would be disappointed by that outcome and that may exacerbate the bitterness she feels towards the father.
Conclusion
33.	Having weighed those considerations carefully, I conclude that the evidence warrants an order being made similar to that proposed within Exhibit F2.  The order that the Court will make will not replicate that within Exhibit F2, as the order will need to be defined with some precision to avoid impingement upon arrangements that the mother may wish to make with respect to the child’s birthday and Mother’s Day.
34.	The parties and the Independent Children’s Lawyer indicated that they did not require the publication of reasons for the determination of the outstanding issue but the publication of short reasons will hopefully explain and make the determination more acceptable to the mother.
35.	In conclusion, the Court expresses its congratulations to the parties for demonstrating the emotional maturity necessary to reach such broad agreement on issues of parental responsibility and orders providing for the child’s residence and the time and communication she will have with the father.  The parties are deserving of considerable credit for their efforts.  When the child is old enough to understand, she will be thankful to them for it.
36.	I therefore make the following orders which I regard to be in the best interests of the child.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate:  

Date:  18 March 2010