Adamson and Adamson (No.2)

[2014] FCCA 1555

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMSON & ADAMSON (No.2) [2014] FCCA 1555

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – consent orders – application to vary consent orders – changeover arrangements – best interests of the children considered – parental responsibility – equal shared parental responsibility – presumption applies where the Court is making an interim order.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA

Applicant: MR ADAMSON

First Respondent: MS ADAMSON

File Number: PAC 1461 of 2007

Judgment of: Judge Scarlett

Hearing date: Dealt with in Chambers

Date of Last Submission: 29 April 2014

Delivered at: Sydney

Delivered on: 23 July 2014

REPRESENTATION

Solicitor for the Applicant: Mr Blumberg

Solicitors for the Applicant: Blackman Legal Pty Ltd

Solicitor for the Respondents: Ms Savage

Solicitors for the Respondents: Fortis Law Group

Independent Children's Lawyer: Mr Whelan

Solicitors for the Independent Children's Lawyer: Mark Whelan Lawyer

ORDERS

UNTIL FURTHER ORDER

1. Order 10 made on 8 January 2014 is confirmed.

IT IS NOTED that publication of this judgment under the pseudonym Adamson & Adamson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 1461 of 2007

MR ADAMSON

Applicant

And

MS ADAMSON

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application to vary interim parenting orders made by consent on 8 January 2014. The orders relate to the parties’ children [X], aged 14 (nearly 15), and [Y], aged 12 (nearly 13). The matters in issue are the travel and changeover arrangements.  

Background

1. The parties were divorced in 2006. The Children have been living with their Mother in the former matrimonial home in [omitted], a Sydney suburb. The Father lives in [B], and continues to do so.

2. In the first half of 2013 the Mother decided that she would relocate with the children to [N], on the New South Wales South Coast. The Father opposed that move and the matter has been back before the court on various occasions.

3. There is a final hearing listed for 28 and 29 October this year.

4. On 8 January 2014, after contravention proceedings, the parties entered into interim parenting orders providing that:

   a)the Children would continue to live with their Mother in [N];

   b)the Children would spend time with their Father from the commencement of the school year each alternate weekend from 6:00 pm Friday until 6:00 pm on Sunday, to be extended to 6:00 pm on Monday in the event that the Monday is a public holiday;

   c)the Children would spend half of the school holidays with their Father.

5. The Court made the following orders relating to changeover:

   a) The Mother is to deliver the children to the Father at his residence [B], at the commencement of the Father’s time with the Children; and

   b) The Father is to return the Children to the Mother at the McDonald’s Family Restaurant in [M] at the conclusion of his time with the Children.

6. The Mother filed an Application in a Case seeking interim parenting orders. Whilst other matters were dealt with by consent, changeover arrangements remained an issue between the parties. On 25 February 2014 the Court made the following Orders:

   For the purpose of making further interim parenting orders:

   (a)     the Applicant and the Respondent must each file and serve a short written submission by 14 March 2014 setting out what interim parenting orders should be made by the Court and the reasons why the Court should make such orders; and

   (b)     the Independent Children’s Lawyer is to file and serve a written submission by 21 March 2014 setting out his recommendations to the Court as to the appropriate interim parenting orders to be made.

   THE COURT NOTES that the parties have consented to the interim parenting issues being dealt with by written submissions without an oral hearing.

Submissions

1. The Father’s solicitor prepared a written submission and forwarded it to the Court on 13 March 2014. The Independent Children’s Lawyer prepared a written submission on 29 April 2014. I have been unable to locate any written submission by or on behalf of the Mother.

2. The Applicant’s solicitor has submitted that at the Child Inclusive Conference on 6 February 2014, the Respondent agreed to the arrangement set out in the Orders, namely that:

   a)the Respondent would drop the children at the Applicant’s residence at 6:00 pm on Friday nights; and

   b)the Applicant would drop the children at the [M] McDonald’s on Sunday evenings at 6:00 pm.

3. The Applicant’s solicitor has now submitted that the Respondent has “reneged” on the agreement and seeks that both Friday and Sunday handovers occur at [M] McDonald’s.

4. It is the Applicant’s case that Friday changeovers at [M] would not be in the Children’s best interests because:

   a)As the Applicant does not finish work until 5:30 pm, he would not be able to reach [M] until 7:30 pm, meaning that the children would not arrive at his home until 8:30 pm;

   b)The travelling time for the Children would be significantly longer;

   c)The Respondent has been delivering the children to the Applicant’s residence for over five months, so a routine has been established;

   d)The Respondent’s move to [N] has meant that the Children no longer spend time with their Father on Wednesday evenings; and

   e)If the Applicant were to be required to collect the Children from [M] on Friday evenings, the children would lose more quality time with their Father.

5. As mentioned, no submission appears to have been received from the Respondent Mother.

6. The Independent Children’s Lawyer does not support the Respondent’s proposal, noting that the current dispute is really about the convenience of the respective parents. In his submission, the Independent Children’s Lawyer stated that:

   There is some merit in the father’s argument that a changeover closer to his residence on a Friday night will mean that the children get the benefit of a Friday evening with him and an opportunity to enjoy dinner with him.[1]

   [1] Independent Children’s Lawyer’s submission page 2

7. The Independent Children’s Lawyer also noted that the Family Consultant who prepared the Child Inclusive Conference Memorandum of 6 February 2014 opined:

   Given the recent events, the employment circumstances of both parents and the family supports available to Ms Adamson in her household, it is suggested that a reasonable compromise would see Ms Adamson dropping the children off to the father’s home at the beginning of contact on a Friday afternoon and both parents meeting at a suitable point such as [M] at the conclusion of contact on Sunday afternoons.[2]

   [2] Ibid

8. The Independent Children’s Lawyer, therefore, supports a continuation of the proposal outlined by the Family Consultant, which is encapsulated in Order 10 of 8 January 2014.

Conclusions

1. The best interests of the Children remain the paramount consideration. The Mother’s proposal to vary the arrangements to provide that [M] should be the changeover point both on Friday and Sunday evenings appears to be more to suit her own convenience rather than a proposal to further the best interests of the children. Whilst it may be argued that the Father’s opposition to the proposal is also based on his convenience, as the Independent Children’s Lawyer suggests, it appears to me that the proposal for the Father to collect the Children from the Mother at [M] on Friday evenings is not in the Children’s best interests, as it would reduce the quality time that the Children spend with their Father.

2. Subsection 60CC(2) of the Family Law Act 1975 (Cth) provides at paragraph (a) that a primary consideration is the benefit to the child, (or children, in this case) of having a meaningful relationship with both of the child’s parents. The Mother’s proposal would not, to my mind, foster the Children’s meaningful relationship with their Father.

3. The current situation regarding parental responsibility is that the parties have equal shared parental responsibility for the Children. Subsection 61DA(3) provides that when the Court is making an interim order, the presumption that it is in Children’s best interests for their parents to have equal shared parental responsibility for them applies unless the court considers that it would not be appropriate in the circumstances. I see no reason why the presumption would not be appropriate in the circumstances, so no change will be made. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 July 2014