Brewster and Paull

[2012] FamCA 695

FAMILY COURT OF AUSTRALIA

BREWSTER & PAULL [2012] FamCA 695

FAMILY LAW ─ CHILDREN ─ Time children to spend with each parent during the Christmas period in alternate years ─ Where the Court raised at the outset that, as a matter of natural justice, that the issue be addressed with regards to the terms, and suggested effect of s 60CC(2)(a) of the Family Law Act1975 (Cth) and what are described as primary considerations ─ Where the Court was comfortably persuaded that the children’s interests would be better served if the primary consideration recorded in s 60CC(2)(a)(i) was observed, and where so doing, optimised the time which the children would have with their parents when their parents are on leave during the Christmas period

Family Law Act 1975 (Cth); s 60CC

APPLICANT: Mr Brewster

RESPONDENT: Ms Paull

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Dubbo NSW

FILE NUMBER: SYC 2891 of 2011

DATE DELIVERED: 1 August 2012

PLACE DELIVERED: Dubbo

PLACE HEARD: Dubbo

JUDGMENT OF: Coleman J

HEARING DATE: 30 & 31 July 2012, 1 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dalzell

SOLICITOR FOR THE APPLICANT: Flynns Solicitors

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Yeates Betts Solicitors

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hafey

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Elizabeth Shirlaw
Legal Aid Dubbo NSW

Orders

1. That by consent orders be made in accordance with the document headed “Minute of Order” marked as Exhibit “X” and annexed hereto.

2. That commencing Christmas 2012 and in alternate years thereafter, the children are to spend time with the father from Christmas Eve until, in the absence of other agreement between the parents, 7 pm on 27 December and from 7 January to 21 January inclusive. 

3. That commencing Christmas 2013 and in alternate years thereafter, the children are to spend time with the father from 22 to 24 December, in the absence of agreement between the parents, 7pm, and from 7 to 21 January inclusive.

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

FAMILY COURT OF AUSTRALIA AT DUBBO

FILE NUMBER: SYC 2891 of 2011

Mr Brewster

Applicant

And

Ms Paull

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties, having resolved, to their great credit, a vast array of difficult parenting issues, one matter, for good reason, has not been resolved. That matter is described accurately in a memorandum produced by Mr B, the Family Consultant, whose expertise the parties had the benefit of yesterday afternoon. In short, the argument relates to the Christmas period in alternate years.

2. The mother’s proposal, as varied slightly by her learned Counsel during the course of submissions, is that in what might be described as Years 1, 3 and alternate years thereafter, the children spend time with the father from Christmas Eve until 7pm of 27 December, and then from 7 to 21 January, in that year. In what might be described as Years 2 and 4 and alternate years thereafter, the mother seeks that the children spend the period 22 to 24 December with the father, and from 7 to 21 January.

3. The father proposes that the children spend two weeks with him in the Christmas period, one of which is not controversial. That is the one when he would commence a period of time spent with the children on 7 January which would conclude on 21 January, having spent time with the children on Christmas Day. The controversial period sought by the father is in alternate years for two weeks commencing Christmas Eve. 

4. The issue is, thus, whether as the mother seeks in each year, subject to interruptions for Christmas, the children should be with her from Christmas Eve or 27 December until 7 January and, thereafter, from 7 January to 21 January with the father. It is not controversial that for so long as the mother continues her current employment she will be required to take leave from Christmas Eve to 7 January each year. It can be said, as learned Counsel for the father has, that there is no evidence that the mother intends to continue such employment. It can equally be said that there is no evidence that she does not and, indeed, the content and flavour of the affidavits sworn by her in the trial was that the mother intends to continue her current employment. 

5. The mother is engaged in a profession that is obliged to take leave from Christmas Eve until 7 January, a period during which many professions essentially close down. The father, it is not controversial, is able to take leave between 7 and 21 January. It is not controversial that the mother is obliged to return to work on 7 January. It would be immediately apparent that the proposals of the mother, if adopted, result in the children spending two weeks with her when she is on leave followed by two weeks with the father when he is on leave. 

6. The father’s proposals involve, in alternate years, the children spending two weeks with him when he is on leave culminating on or about 7 January with the children returning to the mother, who by that time has ceased her leave, and is back at work. To the extent that the father’s case relies upon the children spending time with other members of his family who reside in Sydney, the following observations are relevant. It was frankly conceded by the father’s learned Counsel that the significance of those persons in the children’s lives was not regarded as sufficient to warrant them becoming deponents of affidavits in the trial. As learned Counsel for the father frankly and sensibly acknowledged, an inference can be drawn from that.

7. Secondly, there is no evidence that other members of the father’s family are unable by dint of employment requirements, distance, physical health or otherwise, to be involved to the extent that the father might wish them to in periods of time he spends with the children pursuant to the mother’s proposal.

8. The Court raised at the outset so that, as a matter of natural justice, Counsel for the parties could address it to the extent each considered necessary, the terms and suggested effect of s 60CC(2)(a) of the Family Law Act1975 (Cth) (“the Act”) which appears in s 60CC, which is headed “How a Court determines what is in a child’s best interests”. In so doing, the section mandates that the Court have regard to what are described as “primary considerations”, and to what are described as “additional considerations”.

9. It is not in doubt that the first of the primary considerations is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Nor is it in doubt that an additional consideration, s 60CC(3)(b)(ii), is the nature of the relationship of the child with “other persons (including any grandparent or other relative of the child)”. The Court is not aware of there being such relationships, or their strength, or importance to the children but assumes, for the sake of this dispute, that there would be a benefit in the children having some contact with those persons. 

10. The effect of s 60CC(2)(a)(i) of the Act is, in the Court’s view, having regard to the terms of that provision, to render more important periods of time being arranged in a way which optimises the time children can spend with parents. A parent is not defined, and does not need to be in the definition section of the legislation, save to the extent that it records that adoptive parents are included in the term for the purpose of the legislation. There are authorities which record that “parent” is given its usual normal biological meaning, and is not given an extended definition.

11. The Court is comfortably persuaded that the children’s interests would be better served if the primary consideration recorded in s 60CC(2)(a)(i) were observed. So doing, optimises the time which the children have with their parents when their parents are on leave. The alternative does not, and given that the Minute of Order, Exhibit “X” makes clear that in future the mother will provide rather more of the care for the children than will the father, the importance of observing to the fullest possible extent, the dictates of s 60CC(2)(a)(i) are further strengthened.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 1 August 2012.

Associate:

Date: 09.08.2012