BEARDON & BEARDON

[2020] FCCA 3226

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEARDON & BEARDON [2020] FCCA 3226

Catchwords:
FAMILY LAW – Ex tempore ruling on final matters of disagreement where vast bulk of parenting orders made by consent.  

Applicant: MR BEARDON

Respondent: MS BEARDON

File Number: DGC 2910 of 2019

Judgment of: Judge Burchardt

Hearing date: 16 November 2020

Date of Last Submission: 17 November 2020

Delivered at: Dandenong

Delivered on: 17 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Renwick

Solicitors for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Ms Metherell

Solicitors for the Respondent: Coote Family Lawyers

ORDERS

1. All previous parenting Orders are hereby discharged, save for paragraph 2(c) of the Orders made 17 March 2020 which is to continue until the conclusion of Term 4 2020.

2. The parties have equal shared parental responsibility for the children X born in 2011 and Y born in 2013 (X and Y together referred to herein as “the children”).

3. The children live with the Mother.

4. The children live with and communicate with the Father:

   (a)each alternate weekend during term times:

   (i)in week one, from the conclusion of school on Thursday (or 3:30pm if a non-school day) until the commencement of school on Monday in week two (or 3:30pm if a non-school day); and

   (i)in week two, on Thursday from the conclusion of school (or 3:30pm if a non-school day) until the commencement of school on Friday (or 3:30pm if a non-school day);

   (b)during school holidays:

   (i)subject to order 6, for half of school term holidays as agreed and failing agreement:

   (i)for the first half in even numbered years: and

   (ii)for the second half in odd numbered years.

   (ii)subject to order 6, for half of the long summer holidays as agreed and failing agreement in a week about arrangement as follows:

   (i)for the first week and each alternate week thereafter in even numbered years; and

   (ii)for the second week and each alternate week thereafter in odd numbered years.

   (c)On the following special occasions:

   (i)on each of the child’s birthdays from 3:30pm to 6:30pm if the father is not already spending time with the children;

   (iii)the Father spend time with the children on his birthday from 3.30pm to 6.30pm on a school day and from 10.00am to 5.00pm on a non-school day if not already spending time with the children.

   (iv)for Father’s Day from 6:30 pm the night preceding Father’s Day until the commencement of school on Monday;

   (v)for Christmas:

   (i)In 2020 and in each even numbered year thereafter, from 3:30 pm on Christmas Eve until 3:30 pm on Christmas Day.

   (ii)In 2021 an in each odd numbered year thereafter, from 3.30pm on Christmas Day until 3.30pm on Boxing Day.

   (vi)For Easter:

   (i)In 2021 and in each odd numbered year thereafter, from 3.30pm on Easter Saturday until 3.30pm on Easter Sunday;

   (ii)In 2022 and in each even numbered year thereafter, from 3.30pm on Easter Sunday until 3.30pm on Easter Monday;

   (d)at all other times as may be agreed between the parties in writing.

5. The Father’s time in paragraph 4 be suspended and the children spend time with the Mother as follows:

   (a)during school holidays:

   (i)for half of school term holidays as agreed and failing agreement:

   (i)        for the second half in even numbered years: and

   (ii)      for the first half in odd numbered years.

   (ii)For half of the long summer holidays as agreed and failing agreement in a week about arrangement as follows:

   (i)for the second week and each alternate week thereafter in even numbered years; and

   (ii)for the first week and each alternate week thereafter in odd numbered years.

   (b)on the children’s birthdays from 3:30 pm to 6:30 pm if not spending time with the children;

   (c)on the Mother’s birthday from 3.30pm to 6.30pm if her birthday falls on a school day and from 10.00am to 5.00pm if her birthday falls on a non-school day and she is not already spending time with the children;

   (d)for Mother’s Day from 6:30 pm the night preceding Mother’s Day until the commencement of school on Monday;

   (e)for Christmas:

   (i)in 2021 and in each odd numbered year thereafter, from 3:30 pm on Christmas Eve until 3:30 pm on Christmas Day.

   (ii)in 2020 an in each even numbered year thereafter, from 3.30pm on Christmas Day until 3.30pm on Boxing Day.   

   (f)For Easter:

   (i)In 2021 and in each even numbered year thereafter, from 3.30pm on Easter Sunday until 3.30pm on East Monday;

   (ii)In 2022 and in each odd numbered year thereafter, from 3.30pm on Easter Saturday until 3.30pm on Easter Sunday’s

   (g)At all other times as may be agreed between the parties in writing.

6. That:

   (a)for the purpose of paragraph 4(b) the Father provide the Mother with no less than 28 days’ notice prior to the commencement of a school holiday period that he will spend holiday time with the children in accordance with the time set out in the relevant paragraph and if he does not, his time with the children will continue in accordance with the term time arrangement set out in 4(a)(i), with his time pursuant to paragraph 4(a)(ii) to be suspended for the duration of the relevant school holiday period; and

   (b)until 16 November 2023, the Father provide the Mother as part of the notice in paragraph 6(a), confirmation that he has arranged leave from work and/or is able to work from home for the relevant school holiday time period. 

7. The school term time arrangements provided for in order 4(a) shall be suspended during all school holiday periods, and shall resume at the commencement of each new school term as if the fortnightly cycle had continued over the preceding school holiday period.

8. For the purpose of order 4(b)(i) and 5(a)(i) unless otherwise agreed, school holidays shall be calculated to commence at 3:30pm the day after the last day of term and to conclude at the commencement of school on the first day of the new term, with changeover to take place at 3:30pm on the middle day of the school holiday period.

9. For the purpose of order 4(b)(ii)  and 5(a)(ii) unless otherwise agreed the long summer school holidays shall be calculated to commence at 3:30pm the day after the last day of the school year and to conclude at the commencement of school on the first day of the new term, with changeover to take place at 3:30pm after every seventh night.

10. For the purposes of changeover that do not ordinarily take place at the children’s school, the Father shall collect the children from the Mother’s residence at the commencement of his time and the Mother shall collect the children from the Father’s residence at the conclusion of time.

11. Each party be permitted to have telephone/Face-time communication with the children at all reasonable times with each parent to facilitate the children speaking to the order parent when in their respective care including at the request of the children or either of them.

12. Both parents be permitted to travel internationally and interstate with the children during any time the children are in their care, provided that:

    (a)if the intended travel is interstate or New Zealand:

    (i)The travelling parent shall provide the other parent with an itinerary including flights, accommodation and contact details not less than 14 days prior the travel;

    (ii)if the proposed travel overlaps with the other parent’s time with the children and/or will require the children to be taken out of school during the normal school term, the travelling parent must obtain the other parent’s written consent (in respect of the overlap period/out of school period), which consent will not be unreasonably withheld and which consent will be provided or refused within 48 hours of notice having been given;

    (b)if the intended travel is overseas (other than to New Zealand):

    (i)The travelling parent shall provide the other parent notice of an intention to travel overseas no less than 3 months prior the travel;

    (ii)travel occur during the travelling parent’s time, unless otherwise consented to by the other parent which consent will not be unreasonably withheld and will be provided or refused within 7 days of the notice from the other parent having been made in writing;

    (iii)the non-travelling parent provide such of the children’s passports as are in their possession to the travelling parent no less than 21 days prior to the intended date of travel or such earlier date as may be required to facilitate the travelling parent obtaining the necessary travel documents for the children;

    (iv)the travelling parent provide the other parent with a detailed itinerary including copies of electronic or other return airline tickets, and contact number(s) for the children for the duration of the trip, no less than 14 days prior to the intended date of travel;

    (v)the non-travelling parent will execute all necessary forms with the execution thereof not being unreasonably withheld or delayed;

    (vi)the parties do not travel to any country with a “Do not travel” warning from the Department of Foreign Affairs & Trade, unless otherwise agreed between the parties in writing;

    and in agreeing to this order both parties agree that there will be times where a travelling parent will travel overseas with the children for up to 2-3 weeks at a time.

13. The parents will forthwith do all acts and things to obtain and maintain a current Passport for the children, with no less than 6 months expiry on the Passport at the parents’ equal shared expense and with the mother to hold the Passports, and in the event the father is to travel internationally (including to New Zealand) with the children, the mother will provide the passports to the Father no less than 21 days prior to the anticipated travel and the father will return the passports to the mother within 7 days of their return.

14. Each party be entitled to receive a copy of all school reports and attend all school functions to which parents are ordinarily invited to attend, including but not limited to school concerts, parent/teacher interviews, sports days , presentation days/nights.

15. Each party and their servants and agents be restrained by injunction from:

    (a)Denigrating the other party or their respective family members, partners or partner’s children;

    (b)Discussing these proceedings;

    to the children or either of them or in the presence or hearing of the children or either child.

16. The parties do all such acts and things to facilitate the children’s attendance their extra-curricular activities whilst in their respective care and, if unable to do so, notify the other parent as soon as practicable.

17. Each party:

    (a)be restrained from enrolling the children in any extracurricular or other activity and from accepting any invitation on behalf of the children during the other party’s time with the children without obtaining the prior written consent of the other party;

    (b)the parent who enrolled or enrolls the child/ren in any extra-curricular activity shall notify the other parent no less than 14 days in advance or such lesser period as is reasonable in the circumstances of any upcoming competitions, games or events or authorise and direct the extra-curricular activity provide to provide any such invitations or notifications directly to the other parent.  

18. Neither party be permitted to change the children’s school enrolment from C School, Suburb D without the written consent of the other party.

19. The children are made available to spend time with the other parent with all school and sports uniforms and shoes, sports gear and extra-curricular uniforms and equipment required by each child during their time with the other parent and it is noted that the Father will purchase a summer smock for each of the children prior to the commencement of Term 1 2021 and prior to the commencement of each new school year thereafter until each child completes primary school.

20. The parties keep each other informed of any serious illness or injury suffered by either child and forthwith advise the other of the name and contact details of the treating medical practitioner either child attends upon and this Order act as a standing authority for each parent to speak with any professional treating the child.

21. The parties be at liberty to provide a copy of these Orders to any relevant service provider including but not limited to the children’s school/general medical practitioner, counsellor or therapist.

22. Without admitting the necessity for same, the parties, by themselves, their servants and agents, be and are hereby restrained by injunction from:

    (a)leaving the children without adult supervision;

    (b)consuming illicit substances 24 hours prior to the children coming into their care and whilst the children remain in their care.

23. Without admitting the necessity for such an Order, each party be restrained by injunction from posting photographs of the children on public websites or forums and/or posting links to online photographs of the children including on social media profiles save and except for each party’s personal Facebook or Instagram page.

24. Each party keep the other informed of their current residential address, email and mobile number and, in the event there is a change to their residential address, email or mobile number, they give the other party no less than 48 hours written notice.

25. The parties communicate via the My Family Wizard application or such other method of electronic communication as may be agreed between the parties in writing, save and except in the event of serious illness, injury or emergency in which case communication be by telephone.

26. Each party supervise and restrict the children’s use of phones and electronic devices to ensure the children are only accessing age appropriate content.

27. The parties attend upon and facilitate the child/ren’s attendance upon Ms E or such other psychologist as may be agreed to address any issues arising out of the implementation of these orders, with the duration and frequency of the counselling to be agreed between the parties and as directed by Ms E or the psychologist appointed pursuant to these orders with the parties to share equally the cost of any appointments attended by the children only and to meet the cost of their personal appointments and/or with the children personally.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2910 of 2019

MR BEARDON

Applicant

And

MS BEARDON

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Greatly to their credit the parties with the assistance of their representatives have been able to resolve the vast bulk of matters in dispute in this parenting case between them by agreement.

2. The matters still requiring the Court's decision are within a relatively narrow compass as a result.  We are concerned with the best interests of two children, X born in 2011 and therefore nine years old, and Y born in 2013 and seven years old.

3. The relationship of the parents commenced in 2009 and continued until separation in May 2019.   The father has deposed to re-partnering with a lady called Ms B in 2019.  That lady has two children, F and G, who spend equal amounts of time with each of their parents.

4. The comprehensive family report of Mr H recommended that in week 1 the children spend from Thursday to Monday with their father and in week 2 Wednesday evenings.

5. The father now seeks that that time block be from Friday to Tuesday in one week and Monday to Tuesday in the other week whereas the mother seeks that the block of time go from Thursday to Monday and Thursday to Friday respectively.

6. Both parties' positions have waxed and waned and changed as their personal circumstances have changed.  Relevantly, the father has a job which involves what is described as a meeting on Thursdays from 2 until  no later than 5 pm involving approximately 10 people, and a planning meeting on Friday mornings involving in excess of 30 people.

7. The pattern of those meetings has been changed to an extent by the COVID pandemic but that is rapidly coming to an end.  Additionally, the father's work force generally has a rostered day off each other Monday.  That is not a rostered day off for the father, but it does give him very much greater flexibility with his work on those particular days.

8. The mother has changed her hours of work and now stops work at 3 pm on Monday and takes one of the children to sports training and does not work on Tuesday.   The mother has, as it were, some possibility to change her work but her boss Mr J says first, no guarantees of change of hours is possible and second, that she, that is today, Mr J is aware that not only would all four of the managers have to agree but others have less flexibility, as she understand it, than the mother does.

9. In the face of that evidence my finding is that the mother's chances of changing her hours are no better than the father's.  It should be noted that Mr K, the father's supervisor, was extremely candid in his evidence.   The father's two meetings on the Thursday afternoon and Friday afternoon are rapidly going to go back to face to face meetings and, if the father cannot accommodate those meetings, then his employment will have to be reviewed.  Whether he would be dismissed or offered other employment remains wholly at large and, given that it is well paid and remunerative employment of some standing, the father's desire to retain it is entirely sensible and reasonable.

10. It should be noted that the regime for time during the off week was originally from Wednesdays, 3.30 to 6.30 from 17 March 2020.  In August that changed from 3.30 to 6.30 on Thursdays.  Some emphasis was given in the submissions of counsel for the mother to maintaining the status quo, but a status quo from August to November is not one of any great standing.

11. In truth, there is nothing much to choose between the parties' positions.  It should be noted that the children will be in school on Mondays and Tuesdays in any event.  That means that realistically the additional time that either parent might have on Mondays would only be the right to take them to school in the morning and to collect them in the afternoon with some extra time there.

12. It is immediately apparent that the children will be fine whichever way I determine the matter.  In my view, it is clear beyond any question that this dispute is all about the parents' own perceptions of their needs.

13. I note from what the parties said and the way they said it, a steely determination to prevail.  This may have something to do with their perceptions of the dynamic during the relationship.

14. The points to be made are these:

    (1)Neither parent can really change their hours of work.

    (2)The mother's desire to take the child to sports lessons is reasonable.  The affidavits show that she has had most of this task in the past and her viva voce evidence supported this.  She had a clear enthusiasm for participating in that particular aspect of the children's lives.

    (3)As I understand it, Thursday appears to be the swimming night although the mother says this is flexible.  But I ask, rhetorically, why not give the father the chance?  The mother can take them at some other time again if she wishes to on another day.  This result would empower or encourage both parents to be involved in extracurricular activities that it seems the children enjoy.

    (4)The father's allegedly flexible time on Mondays is slightly illusory.  It only operates for one week in two, in any event, and as I said earlier, really all that it enables him to do that he could not otherwise do is to collect the children from school at 3 or 3.30 which of course the mother can do as well.  The mother works Thursday evenings each alternate week.  There would be a query whether she could revise her hours but even if she did abandon her work on that evening she would lose the money that she would otherwise earn.  Her financial circumstances are less advantaged from those of the father and that is a significant matter.

    (5)The father's de facto can pick up if needed on Thursday.  There is nothing in the affidavit material that suggests that there is any difficulty in this.  I noted that the mother was clearly, as it were, opposed to the de facto partner.  Her evidence was manifestly hostile to that lady, but there is nothing to support her position.  The father has deposed and was not challenged to an excellent relationship between the children and Ms B.

    (6)So far as it may be necessary for him to prepare for work on Friday I accept the submission by the counsel for the mother.  The father can do this as so many of us do after the children have gone to bed.

    (7)Taken all together and perhaps emphasising the problems both parties have in changing their hours of work and, notwithstanding the possible assistance to the mother lurking in the background of her own parents, it is clear in my view that the mother's proposal is that which is appropriate and there will be orders accordingly. 

1. I note that I already have the document in alternate format, and I take it that it has been forwarded in Word.  The Court will engross the orders and that brings the matter to a conclusion.  I would repeat, however, that although it has been necessary to arbitrate this final area of disagreement, overall the parties have done extremely well to achieve a result that is largely by consent and they are very much to be congratulated for that.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 25 November 2020