BROWN & ORTEGA
[2013] FMCAfam 238
•15 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BROWN & ORTEGA | [2013] FMCAfam 238 |
| FAMILY LAW – Children – parenting orders – interim orders – variation of interim orders – where final hearing unable to be completed within the allocated three days – provision for Easter weekend and school holidays. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Brown & Ortega [2012] FMCAfam 1455 |
| Applicant: | MR BROWN |
| Respondent: | MS ORTEGA |
| File Number: | SYC 1704 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 March 2013 |
| Date of Last Submission: | 15 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Paltos Briggs Family Lawyers |
| The Respondent: | The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopoulos |
| Independent Children’s Lawyer: | Mr Christaki, Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
Order (2)(e) made on 13 December 2012 is varied so as to provide that the Father’s time with the child [X] born [in] 2004 which was to have commenced immediately after school on Friday 15 March and conclude at the commencement of school on Monday 18 March 2013 is cancelled.
In substitution for the time the Father was to spend with the child [X] referred to in Order (1) above the Father is to spend time with the child from immediately after school on Friday 22 March until the commencement of school on Monday 25 March 2013.
For the purposes of the Easter weekend 2013 the Father is to collect the child [X] from the Mother at McDonald’s Family Restaurant [W] at 3:30pm on Good Friday 29 March and return the child to the mother at McDonald’s Family Restaurant [W] at 10:00am on Monday 1 April 2013.
The Father is to spend time with the child [X] for the first half of the Autumn, Winter and Spring New South Wales school commencing at 10:00am on the first Saturday after the end of the school term and concluding at 5:00pm on the following Saturday.
For the purposes of Order (4) above the Father is to collect the child [X] from the mother at the Mc Donald’s Family Restaurant at [W] at the commencement of the time and return the child to the Mother at the overbridge at [H] Railway Station at the conclusion of the time.
AND IT IS FURTHER ORDERED THAT the Application is adjourned to 10:00am on 3 and 4 July for further hearing.
The Independent Children’s Lawyer is granted leave to issue a further five (5) subpoenas.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Ortega is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1704 of 2011
| MR BROWN |
Applicant
And
| MS ORTEGA |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father to vary the interim parenting Orders made on 13th December 2013, after an interim hearing (Brown & Ortega[1]). Those orders provided for the Applicant Father to spend alternate weekends with the parties’ son [X] until orders could be made on a final basis, as a result of the final hearing scheduled to take place from 13th March until today.
[1] [2012] FMCAfam 1455
Unfortunately, the proceedings are nowhere near completion and it has become clear that a further two hearing days will be required. Two days have been allocated on 3rd and 4th July this year. The reasons for the delay in completing the evidence need not be gone into at this stage, but counsel for the Applicant has foreshadowed a submission to be made at the conclusion of the evidence.
There are three situations that need to be resolved.
First, the Father would normally, under the existing Orders, have collected the child from [X] from his school on the Central Coast this afternoon. However, both parties have been required to attend Court in Sydney for the purpose of the hearing. It has been put to the Court by counsel for the Father that he has been unable to make an alternative arrangement with the Mother.
Second, this year is a year when the New South Wales school holidays do not encompass the Easter period. This would appear to be due to the fact that Easter commences relatively early in 2013, with Good Friday falling on 29th March. The school term does not end until Friday 12th April.
The fact that the proceedings have not been completed also means that school holidays will take place on two occasions before the hearing will resume. The interim orders made no provision for school holidays because it was envisaged that the proceedings would have been completed before the next school holidays arose.
Submissions
The Father submits that he should collect [X] at 10:00am tomorrow morning and return him to school on the Monday morning, in accordance with the current orders.
The Mother does not agree with that proposal, because she has already promised the child that he could spend time with a friend as it appeared that he would not be spending time with his father on the weekend.
Neither party objects to a straight exchange of weekends.
Easter commences on Friday 29th March. It is a public holiday and not a school day. Easter Monday falls on 1st April. It, too, is not a school day. The Easter weekend coincides with a weekend on which the child would normally spend time with his father.
The Mother does not agree to the child spending the entire Easter break with his father and suggests that the Father’s weekends should alternate from the weekend of 24/25 March, so that [X] would spend the entire Easter break with her.
The parties do not differ about shared mid-year (Autumn, Winter and Spring) school holidays. The Independent Children’s Lawyer submits that the Father’s school holiday time with the child should commence immediately after school on the last day of the school term, in order to avoid confrontation between the parties at changeover. The Father, too, seeks to reduce confrontation at changeover.
The Mother says she will abide by whatever orders the Court sees fit to make. She does not like the changeovers that take place at [H] Railway Station.
The Law to be Applied in Parenting Proceedings
It is still the case that the Court should regard the best interests of the child as the paramount consideration when making a parenting Order, as required by s.60CA of the Family Law Act. This is so, even when the Court is making relatively minor variations to deal with “one-off” situations or unforeseen issues that have arisen, and the Court still considers the matters set in s.60CC of the Act.
I have considered those matters.
The Court is still required to consider the presumption of equal shared parental responsibility as set out in s.61DA of the Act. I have done so, but I do not consider that any change should be made at this stage and, as I stated in the earlier proceedings at [86], it is not appropriate in the circumstances for the presumption to apply.
Conclusions
As the Father has been required to attend Court in Sydney today, it would have been obvious that he would not have been able to collect the child [X] from [C] School this afternoon. His wife is away for reasons of her work, as the Court was told last Wednesday. In the circumstances, it is a sad commentary on the parties’ inability to communicate with each other about matters relating to their child.
I am satisfied that it is in the best interests of the child that the parents should just exchange weekends. The child is apparently already aware, according to the Mother, that he will not be spending time with his father this weekend and he is looking forward to spending time with a friend.
This does not mean that the parties will adopt a new schedule, with alternating weekends with the father now commencing from Friday 22nd March. The Mother has already told the Court that she plans three weeks ahead, so she has presumably already made arrangements in advance in accordance with the current timetable.
Of course, the exchange of weekends on a “one-off” basis will mean that the child will still spend the weekend on which Easter falls with his father, meaning that he will be with his father for two weekends in a row. This cannot be helped and there does not appear to be any detriment to the child.
However, the Easter weekend will have to be regarded as a normal weekend, as far as can be arranged. It is not my intention that he should spend the entire Easter period of four days with his father. The father can collect the child at 3:30pm on the afternoon of Good Friday and return him to the mother on the morning of Easter Monday.
Quite clearly, changeover at school will not apply, as both the Friday and the Monday are public holidays, so changeover will take place at the McDonald’s Family Restaurant at [W].
School holidays will involve the child spending the first half of the holiday with the father, commencing on the Saturday morning immediately after the school term ends and concluding at 5:00pm on the following Saturday.
I have considered the suggestion that school holiday time with the Father should commence straight after school on the last day of term, but I am not in favour of this proposal. The Mother may wish to pack a bag for the child for the week, and it may well be burdensome for him to take this bag to school on the last day of term.
I consider it to be in this child’s best interests for school holiday time with the father to commence at 10:00am on the first Saturday of the school holidays and conclude at 5:00pm on the following Saturday. The parents can share the travelling, with changeover on the first Saturday being at the [W] McDonald’s and the changeover at 5:00pm on the second Saturday being at [H] Railway Station.
These Orders, as varied, are interim Orders with a view to final orders being made after the final hearing has concluded on Thursday 4th July.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 19 March 2013