Buglione & Buglione
[2023] FedCFamC1F 309
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Buglione & Buglione [2023] FedCFamC1F 309
File number(s): PAC 4004 of 2020 Judgment of: RIETHMULLER J Date of judgment: 24 April 2023 Catchwords: FAMILY LAW – PARENTING – Limited issues – Issue of changeover location – Issue of arrangements for Christmas and Christmas school holidays – No matters of principle Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 57 Date of last submission/s: 21 February 2023 Place: Parramatta The Applicant: Litigant in person Solicitor for the Respondent: One Law Group Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 4004 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BUGLIONE
Applicant
AND: MR BUGLIONE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
RIETHMULLER J
DATE OF ORDER:
24 APRIL 2023
THE COURT ORDERS THAT:
Changeover
1.That changeover shall occur, as agreed in writing, between the mother and the father, and failing agreement, as follows:
(a)In relation to Y:
(i)When changeover for the commencement of time with the father occurs on a day and time when Y is attending school, the father shall collect Y from school; and
(ii)On all other days the mother shall attend at Suburb B McDonalds and changeover shall take place there.
(b)In relation to X:
(i)When changeover for the return of X to the father occurs on a day and time when X is attending school that day or the following day, the father shall collect X from the Suburb C McDonalds; and
(ii)On all other days the mother shall attend at Suburb B McDonalds and changeover shall take place there.
Christmas School Holidays
2.In the NSW Christmas holiday period as agreed between the parents in writing but in the absence of agreement, the children spend time with the parent with whom the children are next scheduled to spend the weekend (pursuant to the orders of 16 December 2022), from 4.00 pm on the Friday following the last day of required school attendance (or from end of school if it is a school day) until 4.00 pm on the following Friday, alternating from then until the last Friday of the school holidays when the time pursuant to the orders of 16 December 2022 will resume.
Christmas Day
3.Notwithstanding any previous orders, the children will spend Christmas time with their parents as follows:
(a)In odd numbered years:
(i)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the mother;
(ii)From 3.00 pm Christmas Day until 3.00 pm Boxing Day with the father;
(b)In even numbered years:
(i)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day with the father;
(ii)From 3.00 pm Christmas Day until 3.00 pm Boxing Day with the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Buglione & Buglione has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The applicant mother and the respondent father are the parents of two children (X, born in 2009 and Y, born in 2012). The children have two older siblings, aged 15 and 20 years respectively, from a previous relationship between the mother and her former partner.
The mother and the father began their relationship in 2008, and were married in 2010. They separated in July 2019 when the father left the home.
The mother says that there was considerable family violence throughout the relationship and following the parties’ separation. Unfortunately, the mother now suffers a chronic condition, which she believes has developed as a result of emotional trauma from domestic violence of the relationship. Whilst there was considerable dispute about family violence, some events were not in dispute, for example, the father discussed the following with the Family Report Writer:
58. When questioned about the allegations of violence, [Mr Buglione] reported that he had been deeply affected by [Ms Buglione’s] claims that he had been violent towards her and the children. When questioned as to the incident between himself and [Z], [Mr Buglione] acknowledged that he had handcuffed [Z] outside after he had been suspended from school in Year 8, ‘I didn't know what else to do. He was telling teachers to fuck off, spitting and swearing at them, I had to go to the school and listen to the headmaster telling me what he had done. I didn't know what to do, It felt like the right thing to do back then. I look back now and see it was the wrong thing to do. I was doing it all by myself, I made a mistake. I wouldn't do it again. I just wanted him to consider his actions, to think about what he had done. I made sure he had food and water’.
(Family Report dated 15 February 2021, paragraph 58)
The father recounted that he had “changed”, and that he did not raise his voice any more: see the Family Report, paragraph 57. The Family Report Writer considered that the father had limited insight into the effects of his actions upon those around him, but considered that he was making a genuine “effort to rationally discuss the more concerning events” that had taken place: see the Family Report, paragraph 60.
In psychometric testing, the father appeared to be within the normal range with respect to experience of and expression of anger, however, with an elevated tendency towards controlling his anger.
The results of his personality inventory, which focused upon enduring personality traits, was of “questionable validity, presenting an overly positive picture of his psychological adjustment”: see the Family Report, paragraph 63. The Family Report Writer found that, “due to his elevated impression management”, the psychometric testing offered little more than the father’s own perception of his self-description: see the Family Report, paragraph 63. The Family Report Writer concluded:
Parenting capacity
…
66. In sum, [Mr Buglione] appeared to demonstrate multiple concerning psychological features, including mood disturbance, impulsive and manipulative personality traits, and difficulties with emotional self-regulation, and his responses to the formal assessments did evidence some experience of stress, which was also observed during the interview and assessment, indicating that he is experiencing an emotional impact in dealing with the current matter. The findings are provided with much caution however, due to his overly positive response style across a number of the inventories administered, which was also consistent with his interview behaviour, of reduced insight into himself. Further assessment would be warranted to try to obtain a more valid and accurate assessment of [Mr Buglione’s] profile.
(Family Report dated 15 February 2021, paragraph 66)
This assessment can be compared to the assessment of the mother where the Family Report Writer said:
Parenting capacity
33. On a measure known for its sensitivity in identifying less than optimal parenting practices, [Ms Buglione’s] profile showed no indication that she provided socially desirable responses at an elevated level. Concerningly though, [Ms Buglione’s] responses reflected elevations on the scales reporting elevated unhappiness, problems between herself and family, problems between herself and others and problems between herself and her children. She also responded in a manner which indicated she perceives herself as being isolated and alone. The combination of these factors highlights a parent under considerable stress and likely to engage in less than ideal parenting styles due to her levels of fatigue and stress. [Ms Buglione] showed an elevation on the scale that measured distress; however, this was not found to be so high as to be considered clinically relevant. She did not report any rigidity in parenting. [Ms Buglione’s] responses show a positive level of ego-strength which indicates an ability to maintain emotional stability and feelings of self-worth in relationships.
34. In sum, [Ms Buglione] did not appear to be functioning very well psychologically, and as was also evidenced during the formal assessment, she appears to be under great stress and emotionally overloaded not only by the challenges she is facing with her children, but also the emotional impact of the current matter, her condition of chronic pain and her inability to work. Her responses in this regard are cause for concern, as although some level of stress and unhappiness is not an uncommon finding in assessments such as this one, [Ms Buglione’s] level of distress was considered to be higher than what is usually found. It is evident that she requires more support than she is currently being provided and it is believed that if she was able to get that, along with an improvement in her overall feeling of safety and capacity to be protected, that she would experience a considerable improvement in her overall psychological wellbeing.
(Family Report dated 15 February 2021, paragraphs 33–34)
The mother’s eldest son reported considerable family violence and considerable fear with respect to the father. The Family Report Writer found that he appeared to be suffering severe depressive symptomology, despite his young age of only 20 years.
The mother’s second son also confirmed significant family violence in the household.
X, the older child the subject of the proceedings, expressed her concerns that the mother strongly favoured her youngest brother, Y (the younger child the subject of the proceedings). She recounted that the mother had once left a large bruise on her thigh after hitting her, although recounted that there is no longer violence in the household.
With respect to X the Family Report Writer said:
100. [X] reported that she was aware that she and [Y] were no longer allowed to see their father as it had been ordered by the Court. She stated that she was very distressed that she had not been able to see or speak to her father, ‘it's made me sad and it’s made me angry. I am getting anger issues, I get annoyed, and I scream. I don't know why I do that ... but I don't like not being able to see my Dad’.
101. [X] reported that she would prefer to live with her father, than continue living with her mother at the present time. She explained, ‘I have more fun with my Dad than with my Mum. Mum just walks away when I am angry, she makes me feel like she doesn’t care. Dad stays, it helps me. Dad gives me attention Mum gives all of her attention to [Y]’. When asked about her relationship with [Mr D], X stated, ‘he is not very nice. He got kicked out of our home so [Z] could come home and live with us. [Mr D] is an alcoholic; I stay away from him when he's drinking. He self-harms a lot, he has a lot of cuts on his arms. [Z] is funny and dumb, he’s ok’.
102. When asked about school, [X] reported that she attended [E School], from Kindergarten to Year 5. She stated that due to her mother moving away, she had to move to [F School] for Year 6, ‘I didn’t want to move. I had to leave all of my friends. [F School] has a lot of meanies ... lots of eshays. I don't like it much; I would prefer to go to my old school’.
103. When offered three wishes, [X] stated that for her first wish, ‘I would like to be closer to my family. We don’t talk to each other because we are generally in a bad mood’. For her second wish, [X] stated that she would like to live closer to her friends and for her third wish, she asked if she would be allowed to live with her father again, ‘I want to live with him for the rest of my life... or get a unicorn to run my brothers over’. When asked about her relationship with [Ms G], [X] reported that she liked her, but noted that she often drinks too much. She indicated that she gets along well with [Ms G’s] children, ‘[P] facetimes with me. [Q] misses me, [R] is nice, [S] is ok… Mainly we get on well and I like them. I would be happy to see Mum in the holidays, or every second weekend if she moved closer’.
(Family Report dated 15 February 2021, paragraphs 100–103)
The Family Report Writer believed that it was “essential that [the mother] understand that the psychological impact of X not feeling loved while in her mother’s care, and be cognisant that it is inherently disadvantageous and potentially risky to her long-term mental health”: see the Family Report, paragraph 107.
When interviewing the younger child, Y, the Family Report Writer noted that he presented as a very nervous child, hiding under the chair in the room, and firmly stating that, “I told Mum I’m not talking. I just want to start seeing my dad”: see the Family Report, paragraph 108. The Family Report Writer recounts:
109. [Y] continued to show great reluctance to engage with the clinician, and remained lying on the floor under a chair. He stated, ‘I just want to start seeing my Dad. I’d like to visit him and go to his place on the weekends ... I just want it to go back to normal’. When asked what normal looked like for him, [Y] stated, ‘I just told you. I want it how it was before’, following which he put his hands over his face and mouth and started crying.
110. When offered three wishes, [Y] replied, ‘If I had a wish then I’d ask to stay at Mum's and see Dad every second weekend’. [Y] then started crying again. When questioned which school he liked, [Y] replied that he liked [E School] more.
111. [Y] then refused to respond to any further questions, despite a number of attempts to have him engage. As a result the interview was terminated.
(Family Report dated 15 February 2021, paragraphs 109–111)
In psychometric testing, Y showed extreme elevations on multiple scales measuring separation anxiety, general anxiety, social anxiety, humiliation and rejection, performance fears, obsessions and compulsions, as well as experiencing the physical symptoms of anxiety, panic and avoidance of harm behaviours.
The Family Report Writer concluded that Y was suffering significant mental health distress, which is closely linked to his parents’ ongoing conflict and the high conflict environment within which he is being raised, including the father’s tendency to fuel his anxiety and the mother’s poor emotional regulation, and his confusion about why he was unable to speak with his father at that time see the Family Report, paragraph 113.
In his conclusions, the Family Report Writer noted:
117.The very sad outcome for the [Buglione] family, is that all four children have been raised in a profoundly dysfunctional familial environment, which only knows conflict, rejection, corporal punishment, pain, and fear. The impact on all four children has been seen in the current assessment, and it can be said that [Mr D], [Z], [X] and [Y] are all experiencing extreme psychological distress as a result of their familial environment. Each child, with the exception of [Y], reported having no primary caregiver or other significant person to whom they could go to for support, reported feeling rejected and unloved by at least one, but for the most part, both of their parents, reported suicidal ideation and/or attempts, reported witnessing and experiencing almost a lifetime of familial violence and none of the four children showed any indication of hope for their futures. The significance of this cannot be ignored, and it is considered essential that [Z], [X], [Y], and even [Mr D], be provided with the appropriate support as a matter of urgency.
(Family Report dated 15 February 2021, paragraph 117)
However, it was noted that there was no evidence to suggest that either the mother or the father did not love their children deeply, nor that they did not believe that they were ultimately trying to meet their children’s best interests: see the Family Report, paragraph 121.
The Family Report Writer concluded:
131.In sum, therefore, it is my opinion that the Court could seriously consider that [X] and [Y] would both benefit from being in a 3/11 (or 2/12) of 14-night shared care arrangement between [Mr Buglione] and [Ms Buglione], with the children spending alternate weekends with their father, from Friday to Sunday (plus some portion of school holidays) and moving back and forth together as siblings. Although this may not be considered sufficient to be considered to meet the definition of substantial and significant care for both parties, when taking into account the distance between the homes there is considerable limitations due to the travel time between each home. Should the Court be willing to consider an alternate outcome, it remains a possibility that [X] be allowed to live with her father, in the reversal of the care arrangement as outlined above, with the children alternating weekends at each home to ensure that they are together every weekend at either their mother's home or their father's residence. Although separating siblings is not considered a positive outcome, [X’s] profound unhappiness in her mother's care, her perceived alienation from her family unit and her unhappiness at her new school, are all serious considerations as to her future wellbeing. There is a possibility that this would be the most positive outcome for her, and would have the secondary benefit of providing [Ms Buglione] with one less child to care for. Despite [Ms Buglione's] reluctance, shared parental responsibility should be confirmed, as it would be psychologically beneficial to all parties, but most especially to [X] and [Y]. It is noted that they have been able to communicate in the past, and as such with further support should be able to do this again in the future. Noting that, FDR mediation (most likely in shuttle form) is recommended for both [Mr Buglione] and [Ms Buglione], to allow them to gain further insight into the profoundly negative impact their conflict has on their children, and to help them to come to an amicable and reasonable care arrangement which takes into account their children's complex behavioural presentations, their increasing age, and to assist them to have an effective coparenting relationship into the future.
(Family Report dated 15 February 2021, paragraph 131)
ISSUES IN DISPUTE
The parties reached a settlement on 16 December 2022 of almost all of the parenting issues in dispute. Orders have been made for Y to live with the mother and spend time with his father each alternate week from after school on Friday until 5.00 pm on Sunday, and for X to live with the father and similarly spend time with the mother on alternate weekends.
The orders also make provision for sharing the school holidays and for communication at particular times in the day using electronic means. Specific provision is made for Mother’s Day, Father’s Day and Christmas and birthdays. Injunctions were made restraining the mother from leaving the children in the sole care of the father of her older children, and ensuring that an adult is present at all times when the children are in the presence of their older siblings.
The orders require the children to spend every alternate weekend with the other parent, it appears that Y spends time with the father in Week 1, and X spends time with the mother in Week 2. In effect, this means that the Y and X spend each weekend together.
The matters that remain in dispute are the location for changeovers and the arrangements for the school holiday period at the conclusion of term 4 of this year (2023), including Christmas and onwards into future years. Both parties agreed to have this determination made on the papers, so as to avoid the need for a trial for these remaining issues.
Key locations and travel times
The following are the key locations for the parties:
(a)The father resides at H Street, Suburb J NSW ;
(b)The mother resides at K Street, Suburb L NSW ;
(c)X attends M School (and is in year 8 in 2023);
(d)Y attends N School (and is in year 6 in 2023);
(e)The father is employed as a maintenance officer;
(f)Changeover currently occurs at Suburb C McDonalds (close to the mother’s residence) or the children’s school;
(g)The father proposes that changeover occur at Suburb B McDonalds (about half way between them).
Present arrangements
The father sets out detailed summaries of the current arrangements in his affidavit, supported by print-outs of google maps routes.
Y
For the weekend that Y spends with the father, he collects Y from school and returns him to Suburb C McDonalds.
The mother need only travel to Suburb C McDonalds to collect Y on Sundays.
X
For contact with X and the mother, the father drives her to and from Suburb C McDonalds, over 150kms taking over 3 hours. In order to collect and return X, the mother travels to and from Suburb C McDonalds twice.
Summary
Thus, the present arrangements see the father traveling far longer and further than the mother. However, the children each only travel around one hour each way. When Y accompanies the mother for the changeover for X he travels an extra 35 to 40 minutes.
The mother’s proposal
The mother’s proposal with respect to changeovers is that it remain in accordance with the orders made on 16 December 2022, which provide as follows:
PENDING FURTHER THE COURT ORDERS THAT:
Changeover
19.That changeover shall occur, as agreed in writing, between the Mother and the Father, and failing agreement, as follows:
19.1.In relation to [Y] only: When changeover occurs on a day and time when [Y] is attending school (including as indicated in Order 3.1 of these orders), the father shall collect [Y] from school at the commencement of his time or return [Y] to school at the conclusion of his time; and
19.2.In relation to both [Y] and [X]: when changeover occurs on a day or at a time that the child is not attending school, then the parties shall meet at [Suburb C McDonalds] at either the commencement or conclusion of that child’s time.
The mother seeks to maintain the Suburb C McDonalds changeover location (outside of school times). She points to Y suffering from travel sickness each second Friday and Sunday when he undertakes around “six hours of driving”: see the mother’s Case Outline filed 8 February 2023. The mother also points to her low income and the cost of travel, however, it is unclear how much she receives into her household. She also points to her mental and physical health which she says impedes her capacity to drive. The mother also argues that if the distance is greater she may not attend for changeovers, thus increasing the conflict between the parties.
Christmas
With respect to Christmas, the mother seeks that the children share Christmas day with both parents. She points to a history of sharing Christmas Day and says the children have expressed a desire to spend time with both parents on Christmas Day.
The orders of 16 December 2022 provide for the 2022/2023 Christmas Day to be shared by the parents, and for changeovers to occur over Christmas period as follows:
Christmas
11.3. For the 2022/2023 school Day and Christmas period, the children shall spend time with the parents as follows:
11.3.1.With the mother from 12 noon Christmas Eve until 12 noon Christmas Day;
11.3.2. With the Father from 12 noon Christmas Day until 12 noon Boxing Day with eh mother to collect the children from [Suburb J] McDonald’s;
11.3.3. With the Mother from 12 noon Boxing Day until 5.00pm 2 January 2023 with the Mother to deliver the children to [Suburb J] McDonalds;
11.3.4. From 5.00pm 2 January 2023 until 5.00pm 6 January 2023 in accordance with Orders 1 to 5;
11.3.5.From 5.00pm 6 January 2023 to 5.0pm 22 January 2023 with the Father to deliver the children to [Suburb C] McDonalds at the conclusion of time;
…
Those orders do not make provision for Christmas periods in the following years thereafter.
The father’s proposal
The father seeks orders that the changeover be at a point “equidistant between the parties”. The father proposes that changeover occur at Suburb B McDonalds which he says would require him to travel approximately one and a half hours each weekend to attend changeover, although he would travel for around 10 to 20 minutes to return home from work in any event on the weekends that he has Y. Thus, his proposal has him traveling around 3 hours each fortnight.
As set out in his affidavit filed 25 January 2023, the mother would be required to travel approximately 36 minutes in each direction for changeover, which equates to around two hours and 20 minutes each weekend, if all changeovers were at Suburb B. That is, a total of 4 hours and 40 minutes.
If the father collects Y from school, this reduces the mother’s travel to around 3½ hours, but increases his travel. If the father collected X from Suburb C McDonalds at the conclusion of time it would reduce the mother’s total travel time, but increase the father’s time. However, this arrangement would reduce Y’s travel time.
The father argues that a benefit of his proposal is that the children will ultimately have less travel time (assuming that the child not changing households for contact will nonetheless travel with the parent to pick up or drop off their sibling at changeover).
The father points out that there is no medical evidence to confirm that Y suffers from car sickness, nor that the mother’s health problems prevent her from driving longer distance. Notably, he points out that the mother agrees that she drove three hours each way to Suburb O NSW, and that the mother did not provide evidence as to her personal difficulties and capabilities with respect to this drive in her affidavit (the mother’s affidavit filed 31 January 2023, paragraph 6).
The father also points to his low income (around $63,000 per annum, according to his payslip). Whilst the father annexes some social security documents concerning the mother’s current family tax payments, the document shows that these payments are not the maximum amount, indicating that the mother must have some other income (although it is unclear if this is the effect of the child support assessment that requires the father to pay $3,122 per annum. The annexed taxation assessment provide little clarity.
Christmas
The father seeks that the children spend block time with each parents during the Christmas and end of year school holiday periods, alternating each year (spending the first half of the holidays with one parent, and the second half with the other). His concern with the current share arrangement for Christmas is that it does not allow a significant block of time for each parent to undertake holidays with the children, and that larger block periods would reduce the number of changeovers that would be necessary in the Christmas school holiday period. The father says that the proposed block time will “allow for less dispute between the parties” and that “the parties will have more clarity on their time with the children”: see the father’s Case Outline filed 17 February 2023, paragraph 10.
Arguments of the Independent Children’s Lawyer
The Independent Children’s Lawyer comments in their submissions by noting that the father had used excessive physical discipline on the children in the past, and that the mother alleges that the father had perpetrated family violence against her during the relationship. The ICL notes the high conflict that has been involved in this matter and that there is unlikely to be any cooperation between the parties to alter the changeover arrangements in the future.
The ICL argues that it would be equitable for the parents to share the travel to facilitate the children having relationships with each parent and, as such, supports the argument that changeovers should be at a midpoint location, subject to any finding that the mother’s health issues genuinely prevent her from undertaking that level of travel.
With respect to the Christmas holidays, the ICL is of the view that it would be appropriate for the children to have the opportunity to engage with each parent on or around Christmas Day. Whilst mindful of the proposal by the father to have blocks of time, the ICL expresses some concern that, given the level of difficulties and allegations that have appeared in this case, together with allegations of parents who have failed to facilitate or maintain relationships between the children and the other parent, that a safer course would be a week-about arrangement during the school holidays.
In order to implement the proposals as argued for by the ICL, the ICL proposes the following orders:
Changeover
1. For the purposes of changeover, unless otherwise agreed in writing, where a parent’s time with the children is due to commence at the conclusion of a school day or conclude at the commencement of a school day, changeover is to occur at the children’s school and at all other times at [Suburb B McDonalds] and both parents shall ensure that during changeovers:
a. Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
b. Each parent will conduct themselves in a child focused manner;
c. Each parent will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
d. Neither parent will discuss issues of any controversy between them.
Christmas School Holidays
2. In the NSW Christmas holiday period as agreed between the parents in writing but in the absence of agreement, with the parent who the children are next scheduled to spend the weekend with pursuant to the orders of 16 December 2022, from 4:00pm on the Friday following the last day of required school attendance (or from end of school if it is a school day) until 4:00pm on the following Friday, alternating from then until the last Friday of the school holidays when the time pursuant to the Orders of 16 December 2022 will resume.
Christmas Day
3. Notwithstanding any previous orders, the children will spend Christmas time with their parents as follows:
i. In odd numbered years:
(a) from 3:00pm Christmas Eve until 3.00pm Christmas Day with the Mother;
(b) From 3.00pm Christmas Day until 3.00pm Boxing Day with the Father;
ii. In even numbered years:
(c) from 3:00pm Christmas Eve until 3.00pm Christmas Day with the Father;
(d) From 3.00pm Christmas Day until 3.00pm Boxing Day with the Mother.
CONSIDERATION
In order to determine these limited parenting issues, it is nonetheless important to recognise that the best interests of the children are the paramount consideration.
As the substance of the parenting arrangements are agreed, it is of no assistance to consider the requirements that arise from the parties having equal shared parental responsibility.
I turn then to consider the two different proposals in light of s 60CC of the Family Law Act 1975 (Cth).
On either proposal, the children will continue to have a relationship that is likely to be as meaningful. However, with respect to the question of risk to the children, I am persuaded by the ICL’s argument that reducing the length of the periods of time that the children are with each parent, particularly the father, over the Christmas period is a protective factor, given the significant issues in the past, including his anger management issues.
When considering travel times, minimising the amount of time that a child is in a motor vehicle being driven from one location to another is important. On the father’s proposal, neither child would spend more than an hour continuously being driven, with a short break at the Suburb B McDonalds at the midpoint of the journey.
The mother’s proposal would see the father on the road for a far longer period. However, the difference in risk given the periods of time involved in this case is small.
In substance, the mother’s proposal rests upon the proposition that travel for herself and Y should be minimised. In the abstract it is difficult to see how Y’s travel is greater if the parties meet halfway, rather than the father driving Y the whole distance, this ignores the driving arrangements for X. The difference that arises for Y flows from the fact that X can be left at home whilst the father travels for Y, whereas the mother says that Y is too young to be left at home when she travels for X (and she has no other arrangements for his care).
With respect to the mother’s medical complaints, there is no medical evidence to indicate that a half an hour drive (which could easily be followed by a tea break at the Suburb B McDonalds) and a further half hour drive home is beyond her capacity. In light of the absence of medical evidence in this regard, it is difficult to reach a conclusion as to the extent of the mother’s health issues and their impact upon her undertaking travel, however I note that she does have a disability parking permit (indicating some medical assessment of incapacity).
Given the extent of the conflict in the past, it appears that in circumstances where each parent cares for one of the children, there is much to be said for each of them to have to travel to collect the child from the other at the start of time and the other parent recover the child. This largely avoids the possibility of a parent failing to attend for changeover .Whilst it is attractive to make orders that requires the parent seeking contact to travel to collect the child, and the parent seeking return of the child travel to effect that return, that would result in the mother having to travel around two hours on the occasions that she had to drive (albeit that she could take breaks), rather than only 30 minutes on each changeover occasion to a location at Suburb B. The alternative is to place a greater part of the travel burden upon the father, who works full-time and is on a low income. Whilst the mother does not appear to work, she says she has difficulties driving and appears to be on social security.
None of the secondary factors under s 60CC of the Act, of themselves, shows a significant relevant consideration for the matters that must be determined here.
CONCLUSION
Christmas is a special day for families and particularly children, even if not celebrated as a religious event, as it is still recognised as a day for exchanging gifts to reflect the love and care family members and friends have for each other. This can be all the more important if family members have had difficulties in their relationships. I am persuaded that it is in the children’s interests to see each other and each parent on Christmas day, in this case. I am therefore persuaded that the existing Christmas arrangements should continue.
In cases such as the present there are many competing considerations as to travel costs, time and capacity of the parents and impact upon the children. I am ultimately persuaded that the father should collect Y from school on school days, and changeover for his return be at Suburb B. Collection of X by the mother should be at Suburb B and the father can recover her from Suburb C.
As a result, I make orders in the terms sought by the ICL with respect to Christmas (edited slightly to make the orders more readable) and orders reflecting my findings with respect to changeovers.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 24 April 2023
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