Federal Magistrates Court of Australia - Family Law

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1 Federal Magistrates Court of Australia - Family Law D & M [2007] FMCAfam 792 (5 October 2007) Last Updated: 16 October 2007 FEDERAL MAGISTRATES COURT OF AUSTRALIA D & M [2007] FMCAfam 792 FAMILY LAW? Parenting? 18 month old child? father in Brisbane? mother in Nowra? for how long and how often can child be away from each parent? impact of travel? will parents adhere to arrangements? Family Law Act 1975, ss.60b, 60CA, 60CC, 61DA, 65DAA Applicant: D Respondent: M File Number: BRC892 of 2007 Judgment of: Altobelli FM Hearing date: 13 September 2007 Date of Last Submission: 13 September 2007 Delivered at: Sydney Delivered on: 5 October 2007 REPRESENTATION Counsel for the Applicant Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Counsel for the Independent Children? s Lawyer: Mr Cook Freedom Law Mr Moss Johnston Tobin Solicitors Mr Alexander

2 Independent Children? s Lawyer Verekers ORDERS (1) That the mother and father have equal shared parental responsibility for their child ("K"). (2) That K live with her mother. (3) That K spend time with her father as follows: 3.1 Up to and including December 2008 (or December 2011 if the Father relocates to within 200 km of Nowra), from 9.30am Wednesday to 12 noon Sunday each alternate weekend; 3.2 From January 2009 up to and including December 2011, from 9.30am on the second Friday of each month other than December to 12 noon on the Sunday after the third Friday; 3.3 From 24 to 31 December 2009 and from 24 to 31 December 2011 in each case commencing and concluding at 12 noon; 3.4 From 26 December 2010 until 2 January 2011 in each case commencing and concluding at 12 noon; 3.5 From January 2012: (a) Subject to the decision of the Father and his place of living, each alternate weekend from Friday after school or (at the father? s election) from 9am Saturday until before school on Monday or Sunday; (b) For half of all school holidays except the Christmas holidays; (c) From 26 December in 2012 and each alternate year thereafter until 9 January in the following year in each case commencing and concluding at 12 noon; (d) From 24 December in 2013 and each alternate year thereafter until 7 January in the following year in each case commencing and concluding at 12 noon. (4) That Order 3 and, in particular, the time specified in Orders 3.1? 3.5, be subject to these conditions: 4.1 The Father must notify the Mother by telephone or text message of his intention to spend time with K not less than 7 days prior to the day on which such time is due to commence;

3 4.2 That notification must include whether such time is to be spent in Queensland or otherwise; 4.3 Failure by the Father to provide notification in accordance with 4.1 means that the relevant spends time with visit lapses. 4.4 The Father must collect K from, and return her to, the Mother? s home in East Nowra; 4.5 If Mothers? Day would otherwise fall on a Sunday on which K would have time with her Father, that time will cease at 9.00 am on Mothers? Day; and 4.6 If Fathers? Day would otherwise fall on a Sunday on which K would not have time with her Father, she is to have time with her Father during that weekend as if that weekend was a weekend of time under these Orders. (5) That each of the parties facilitate communication between K and the parent with whom K is not then living at any time requested by K or at any reasonable time at which that parent telephones K. (6) That, without admission, the Father undertakes not to consume an amount of alcohol which would result in him having a blood alcohol reading of more than 0.05% at any time during which K is spending time with him. (7) That, without admission, the Mother undertakes: 7.1 Not to consume any prohibited substance; and 7.2 To promptly inform the Father about any incident of violence involving K or witnessed by her. (8) That both parties do all such things and acts as are required to furnish the other parent with any information regarding the children's education, health and well being which the other parent might expect to receive. (9) That in the event the parents cannot reach a joint decisions about:- (a) a major long-term issue involving the Children; or (b) the interpretation of these Orders; or (c) the implementation of these Orders; or (d) the enforcement of these Orders; which involve the children, then each of the parents will do all things necessary to participate in Family Dispute Resolution at a Family Relationship Centre.

4 (10) That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:- (a) the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and (b) the Father and the Mother shall each participate in Family Dispute Resolution at a Family Relationship Centre. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY BRC892 of 2007 D Applicant And M Respondent Introduction Issues REASONS FOR JUDGMENT 1. This case is about K who is 18 months old. Her parents love her very much. They are not perfect parents. They don? t claim to be. K lives with her mother in Nowra. Her father lives in Brisbane. When this case started, K? s father wanted an order that she live with him. During the hearing, however, he decided it would be best for K to stay with her mother, but he wants clear arrangements for him to spend time with her. The case became a dispute about how often and for how long K spends time with her father, at various stages of her life. It became clear during they hearing that even though the father lives in Brisbane at the moment, there is a good possibility that he will be able to move to New South Wales in order to be closer to K. In making orders that is something I need to take into account. 2. The major question I need to answer is how often and for how long should K spend time with her father, having regard to her best

5 Non-Issues Background interests. In order to answer this primary question I need to answer a number of secondary questions. These include: a) Having regard to K? s age and developmental stage, for how long and for how often can she be away from both her mother and father? b) Having regard to her age and developmental stage, how will she cope with the travel between her parents? homes? c) Can I be reasonably satisfied that whatever arrangements I put in place will, in fact, be adhered to by each parent? d) What if the father moves closer to K? 3. There are certain things that are clearly not issues. I need to say this in order to remind the parents that when this case finished it was not the same case that started before me. When the father realised that the evidence was not going to support his claim for K to live with him, he dropped that claim. He did the right thing. If in making this decision he listened to the advice of his solicitor and barrister, he acted wisely. None of the concerns that he initially raised about the mother? s capacity to care for K were established. Based on all the evidence I saw and heard I am satisfied that K is safe and will be well-cared for by both her mother and father. 4. The father is 41. He lives and works in Brisbane. He is a leading hand carpenter. The mother is 31 and lives in Nowra and is the fulltime carer of her six children, of whom K is the youngest. The parents lived together between May 2002 and May 2006, and K was their only child. K was born on 6 March They lived in Dubbo and Nowra. Both parents have family in each of these places. Their relationship was on and off. In August 2005 the father went to Queensland and started working there a short time later. In March 2007 some interim orders were made in this court in Brisbane. The order that was in force as at the hearing stated that K spend time with her father: a) From 9.30am Wednesday 25 April 2007 to 12 noon Sunday 29 April and each fourth weekend thereafter; and b) From 5.00pm Friday 11 may 2007 to 12 noon Sunday 13 May 2007 and each fourth weekend thereafter, but only in Nowra.

6 Proposals 5. It is important to note that K? s parents agreed to this. I am satisfied that they both felt at the time that K would cope with this arrangement, even though there might be travel and even though she should be away from her mother for up to four nights and five days. 6. The final proposals of both parents are summarized in the table below: Period of K? s life Father? s Proposal Mother? s Proposal 12 month period from now until she turns 30 months in November From 30 months until preschool i.e. year before kindergarten 9.30am Wednesday to Sunday 12 noon, each alternate week 9.30am Friday to 12 noon Sunday of following week From pre-school onwards After school Friday until 12 noon Sunday one weekend monthly. Half school holidays. Every 4 th weekend 5.00pm Friday? 12 noon Sunday Plus every 4 th weekend 9.30am Wednesday to 12 noon Sunday Every 4 th weekend 5.00pm Friday? 12 noon Sunday Plus every 4 th weekend 9.30am Wednesday to 12 noon Sunday Every 4 th weekend 5.00pm Friday? 12 noon Sunday Plus every 4 th weekend 9.30am Wednesday to 12 noon Sunday 7. The mother? s proposal is constant, but the father? s proposal changes to reflect K getting older, and then changes again when she starts to go to pre-school. 8. The father? s concern about the mother? s proposal is that it requires him to come to Nowra every four weeks, and requires him to stay in Nowra on one of those occasions. He says the travel, and the cost, makes this impracticable. 9. The mother? s objection to the father? s proposal for the first period in K? s life is not the duration or the frequency of the time, but the fact that it could mean K is travelling to Brisbane twice during each four week period. She would be content with only one such trip during each four weeks. 10. The mother? s concern about the proposal for the second period is that K is away from her, and the other children, for too long. She believes that even when she is 30 months old, nine nights away is too long. The mother believes K could cope with four nights away.

7 11. As for the third proposal, it seems to reflect the reality that K will be at school or preschool, but the reduction in time during the school term is off-set by school holiday time. 12. In evidence the father frankly, and correctly, agreed that his first proposal was simply not workable if it meant travelling to and from Brisbane more than once a month. However, he wants the opportunity to come down twice a month if he possibly could. The applicable law 13. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60ca. 14. The objects and principles of Part VII are set out at s. 60B: "> 60B Objects of Part and principles underlying it (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a child? s best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with,

8 both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (3) For the purposes of subparagraph (2)(e), an Aboriginal child? s or Torres Strait Islander child? s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child? s age and developmental level and the child? s views; and (ii) to develop a positive appreciation of that culture. 15. At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61da. Section 61DA provides: 61DA Presumption of equal shared parental responsibility when making parenting orders (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child? s parents to have equal shared parental responsibility for the child. (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) abuse of the child or another child who, at the time, was a member of the parent? s family (or that other person? s family); or

9 (b) family violence. (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child? s parents to have equal shared parental responsibility for the child. 16. If the presumption applies, I am required to consider certain things: 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances Equal time (1) If a parenting order provides (or is to provide) that a child? s parents are to have equal shared parental responsibility for the child, the court must: (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents. Substantial and significant time (2) If: (a) a parenting order provides (or is to provide) that a child? s parents are to have equal shared parental responsibility for the child; and (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:

10 (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents. (3) will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child? s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant. Reasonable practicality (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child? s parents, the court must have regard to: (a) how far apart the parents live from each other; and

11 (b) the parents? current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents? current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant. 17. Because s.65daa refers to the best interests of the child I must then go back to consider s.60cc which specifies how I must determine what is in a child? s best interests. 60CC How a court determines what is in a child? s best interests Determining child? s best interests (1) Subject to subsection (5), in determining what is in the child? s best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child? s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). Additional considerations (3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child? s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child? s views;

12 (b) the nature of the relationship of the child with: (i) each of the child? s parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the willingness and ability of each of the child? s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d) the likely effect of any changes in the child? s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child? s right to maintain personal relations and direct contact with both parents on a regular basis; (f) the capacity of: (i) each of the child? s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child? s parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child? s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to

13 Significance of Time enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child? s parents; (j) any family violence involving the child or a member of the child? s family; (k) any family violence order that applies to the child or a member of the child? s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant. 18. Like many disputes relating to children, this is a dispute about dividing the child? s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled "Time to rethink time? The experience of time with children after divorce" [1]. Smyth refers to the notion of time as part and parcel of the? custody wars? between parents. He says about time at page 4: "...Parents fight about it, courts divvy it up, and children long for it." Smyth goes on to say some important things about time at page 9 of the article: A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children? s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. "Quality time" needs time. According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children? s social, emotional and

14 cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children. It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments? such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children? s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as longweekends and school holidays) or special time (such as birthdays, Mothers? or Fathers? Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive lifelong memories. But while these, and other, types of time are important for children? s and parent? s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to "hang out", talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent? child time, such as daytime-only contact each Saturday afternoon, work against the experience of "being" time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement. 19. This is a social science perspective on time, and its significance in the context of children? s relationships with their parents. Section 65DAA(3) is the Family Law Act? s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark ("...only if...") for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.

15 For how long and how often can K be away from her mother and her father? 20. From the mother? s perspective, the concern was that K would be away from her, and her siblings, for too long. From the father? s perspective, the concern was that the intervals between the times that he spends with K would be too long. All parties to this case recognised that the frequency and amount of time K spends with each parent is very important to her attachment to them. 21. Mr L was the Family Consultant who prepared the Family report dated 17 May He also gave evidence by telephone. He is a child psychologist. He met with the parents and observed their interaction with K. His assessment was that K was developing normally and was emotionally secure with both parents. A normal attachment process was indicated, according to Mr L. 22. During his oral evidence, Mr L was given the opportunity to comment on the various proposals. He believes that K is coping well with the existing arrangement, and that she would likewise cope with the father? s proposal for the period until she turns 30 months of age. 23. In relation to the next stage of the father? s proposal, i.e. nine nights in every four week period, Mr L again felt that K could cope provided some matters were attended to. He was of the view that, in effect: a) A three week absence from her father was not a problem provided she was exposed to memory prompts and evidence of his existence during this period; and b) A nine night absence from her mother and siblings was not a problem provided K was in some form of appropriate communication with her mother during this period. 24. Mr L agreed that, as a general rule, a child of K? s age should be spending frequent but shorter periods away from her parents, but he explained that, on the facts of this case, his recommendation is made on the basis of his judgment of the strength of attachment between K and her parents. 25. Mr L was carefully examined about his recommendations by the mother? s counsel. He explained that his recommendations were based on his observations of K and her parents, and not based on any assumption about whether and to what extent the existing arrangements for time had been complied with. He expressed disappointment, however, if it was in fact that case that the father was not capitalising on the opportunities to spend time afforded by the orders. He was concerned that if there was no regularity in the father? s time with K, it

16 could affect their attachment. He remained unconcerned about the length of time away from the mother. 26. I accept the evidence of Mr L. He is an independent expert who has made recommendations based on his experience and observation of this family. I am satisfied that K can cope with the absences from her mother and father arising out of the father? s proposal, subject to the matter that he expressly refers to above. I need to assess the capacity of each parent to implement the matters that Mr L refers to. I will deal with this below. How will K cope with the travel? 27. Travel will be a significant feature of K? s time with her father. On the mother? s proposal, she could be travelling to Brisbane once a month. On the father? s proposal, it could be as much as twice a month. All parties agreed that even if the father moved to Dubbo, in practical terms the travel would be equivalent to travel to Brisbane. Even in the father? s proposal, however, once she turns 30 months of age she would only be travelling to Brisbane once a month. It was clearly a part of the mother? s case that the travel was a real concern in this case, and made the father? s proposals impracticable. 28. Mr L was asked questions about this issue. He did not consider it a problem that K might be travelling to Brisbane twice a month, provided her needs were met i.e. she was able to eat and sleep. He explained that at this stage of K? s development, the travel was not an issue, but it might become one as she grows older. I accept Mr L? s evidence. I find that K would cope with the travel inherent in each of the proposals. Will the parents adhere to the arrangements that are ordered for K to spend time with her father? 29. The important issue from K? s perspective is whether her parents are able to commit to and comply with orders that relate to her spending time with both parents. At her tender age, for example, it is essential that she sees both parents regularly, with no extended absences in between, and has the benefit of each parents positive affirmation of the important role the other plays in her life. At a macro level this means compliance in a broad sense with orders. At a micro level, it means being prepared to do the minutiae of activities that actually lead to compliance (eg travel, packing of clothes, food, toys and drink for the journey etc) as well as facilitating communication with the other parent during and in-between the times she spends with them. In his oral evidence, for example, Mr L referred to the importance of memory prompts relating to the other parents during periods of absence through photographs and other communication forms.

17 30. The father frankly conceded that he would not be able to comply with an order that requires him to travel from Brisbane to Nowra more than once a month, though he would certainly like the opportunity to do so. Frequency and regularity of spending time with her father is very important from K? s perspective. His track record is not ideal. He missed one weekend in each of April, June, August and at the beginning of September, as well as missing all three weekends in July The reason for this is primarily his work commitments, but also the cost to him of travel. This reflects poorly on the father and left me wondering about his priorities. K is clearly important to him, but so is his work and when the former clashes with the latter, the latter prevails. Moreover, if his true level of commitment is evidenced by his totally inadequate child support payments for K? s benefit, I would be concerned indeed. But child support issues are best left to be dealt with elsewhere, and all of these concerns need to be understood in the context of the father? s frank concession that travelling from Brisbane to Nowra more than once a month is problematic for him. I have no concerns, however, that during the time that K is with him he would facilitate age appropriate communication between K and her mother, and would provide the necessary memory prompts to remind her about her mother. 31. The mother likewise bears a significant responsibility to do what it takes to implement an arrangement whereby K spends time with her father and, more importantly, remind her about her father in between times she spend with him. I am satisfied that she has not been responsible for the times when the father was not able to spend time with K. She is clearly reluctant to undertake travel between Nowra and Sydney for the purposes of getting K to the airport, but I consider this entirely understandable give her reliance on public transport and her care responsibilities for the other children including Joshua, who has special needs. This does not count against her. Of concern however is her evidence about rejecting the Father? s offer to open a Priceline account, and her unwillingness to let the father speak to K simply because he called her "L". Both events illustrate the depth of communication problems that the parents seem to experience from time to time, and the mistrust they have for each other. 32. I am satisfied, however, that none of the matters referred to above lead me to conclude that I should not make orders that are otherwise in K? s best interests because of reservations I might have about whether the parents will adhere to the arrangements. What these matters do tell me is that the time arrangements have to be practicable in the context of this family. The harsh reality in the family law jurisdiction is that even the most workable of orders sometimes need to be enforced by way of Contravention Application or other remedy. I am satisfied that both genuinely want the best for K, and recognize the importance of the other in K? s life. What if the father moves closer to K?

18 33. The father gave evidence that he might in future move closer to Nowra. This depends on his work commitments in Brisbane, and whether he could find work in the Nowra area. It is clearly not possible this year, but his evidence, which I accept, is that it is possible as soon as next year. His evidence was not challenged. I accept that a move closer to K is a serious possibility for the father. Of course this would be a significant change in the circumstances that would, in my opinion, warrant re-visiting the issue of what arrangement for K to spend time with her father is in her best interests. I record in these reasons my view that even though I propose to deal with this possible move closer to K as a possibility, and therefore make alternative orders, I would not regard this as preventing the father from revisiting the actual terms of the alternative order I make at some future time. Of course this does not bind a later judicial officer dealing with this issue at a later time. 34. The father? s counsel says that I should make an alternative order for equal time. Both the Independent Children? s Lawyer ("ICL") and the mother? s counsel say it should be substantial and significant time. I agree it should be the latter. The situation is far too hypothetical at this stage to even consider an equal time order. For example, I have no evidence about where the father will live, the extent of his work commitments etc. What orders should I make? 35. The ICL proposes the following orders: l. That the mother and father have equal shared parental responsibility for their child, K MAY D born 6 May 2006 ("K"). 2. That K live with her mother. That K spend time with her father as follows: 3.1 Up to and including December 2008 (or December 2011 if the Father relocates to within 200 km of Nowra), from Wednesday to Sunday each alternate weekend; 3.2 From January 2009 up to and including December 2011, from the second Friday of each month other than December to the Sunday after the third Friday; 3.3 From 24 to 31 December 2009 and from 24 to 31 December 2011; 3.4 From 26 December 2010 until 2 January 2011; 3.5 From January 2012:

19 (a) Subject to the decision of the Father and his place of living, each alternate weekend from Friday after school or Saturday until before school on Monday or Sunday; (b) For half of all school holidays except the Christmas holidays; (c) From 26 December in 2012 and each alternate year thereafter until 9 January in the following year; (d) From 24 December in 2013 and each alternate year thereafter until 7 January in the following year. 4. That Order 3 and, in particular, the time specified in Orders 3.1? 3.5, be subject to these conditions: 4.1 The Father must notify the Mother of his intention to spend time with K not less than 7 days prior to the day on which such time is due to commence; 4.2 That notification must include whether such time is to be spent in Queensland or otherwise; 4.3 If in Queensland, the Mother must deliver K to Sydney Airport on the day on which such time is due to commence at a time nominated by the Father; 4.4 If not in Queensland, and for the purpose of all other changeovers, the Father must collect K from, and return her to, the Mother? s home in East Nowra; 4.5 If Mothers? Day would otherwise fall on a Sunday on which K would have time with her Father, that time will cease at 9.00 am on Mothers? Day; and 4.6 If Fathers? Day would otherwise fall on a Sunday on which K would not have time with her Father, she is to have time with her Father during that weekend as if that weekend was a weekend of time under these Orders. 5. That each of the parties facilitate communication between K and the parent with whom K is not then living at any time requested by K or at any reasonable time at which that parent telephones K. 6. That, without admission, the Father undertakes not to consume an amount of alcohol which would result in him having a blood alcohol reading of more than 0.05% at any time during which K is spending time with him.

20 7. That, without admission, the Mother undertakes: 7.1 Not to consume any prohibited substance; and 7.2 To promptly inform the Father about any incident of violence involving K or witnessed by her. 8. That both parties do all such things and acts as are required to furnish the other parent with any information regarding the children's education, health and well being which the other parent might expect to receive. 36. The orders proposed by the ICL contemplate that K will go to school in January 2012, which is consistent with the evidence about this given by the mother. No distinction is made in terms of the time arrangement as between pre-school and before pre-school. This is the only real difference between the father? s proposal and the ICL? s proposal. I agree with the ICL that there is no need to distinguish between these periods. The ICL proposes that the father notify the mother of his intention to spend time with K, and where, seven days prior to such time. This, no doubt, is an attempt to deal with the father? s lack of regularity in spending time with K in the past. It is an appropriate measure, and I propose to add a further order to the effect that, if he does not give such notice, that particular spends time with period lapses. 37. The ICL proposes that the mother be responsible for delivering K to Sydney airport. As I have indicated above, I do not believe that this is reasonable under the circumstances, having regard to the mothers other caring responsibilities. I am also mindful of not creating any obstacle to the mother otherwise facilitating K? s time with her father. 38. Subject to the above comments, in general terms I conclude that the Orders proposed by the ICL reflect the evidence and the findings I have made, and are therefore in K? s best interests. The orders also appropriately consider the father? s possible relocation closer to Nowra. I therefore make the orders proposed by the ICL with some minor amendments and an additional order relating to the resolution of any future disputes about K. I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Altobelli FM Associate: Lisa Molloy Date: 5 October

21 [1] Bruce Smyth, "Time to rethink time? The experience of time with children after divorce" Family Matters No. 76, Winter 2005 page 4