Burnside & Burnside
[2023] FedCFamC1F 413
•23 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Burnside & Burnside [2023] FedCFamC1F 413
File number(s): BRC 2753 of 2021 Judgment of: CAREW J Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the parties reached agreement on a final parenting order on the first day of trial – Where the proposed order is supported by the independent children’s lawyer – Where the proposed order meets the children’s best interests in the circumstances of this case – Order made by consent in terms of minute Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 6 Date of hearing: 23 May 2023 Place: Brisbane Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: Alexander Law Counsel for the Respondent: Mr Selfridge Solicitor for the Respondent: Preston & Associates Counsel for the Independent Children's Lawyer: Ms Pendergast Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor ORDER
BRC 2753 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BURNSIDE
Applicant
AND: MS BURNSIDE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
23 MAY 2023
THE COURT ORDERS BY CONSENT THAT:
1.The mother have sole parental responsibility for major long term issues (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) for the children, X born 2012 and Y born 2014.
2.The mother shall inform the father of any decisions she makes in relation to issues concerning major long term parental responsibility but is not required to inform the father of decisions she makes relating to day to day issues.
3.The children live with the mother.
4.The children spend time with the father at all such times as may be agreed and failing agreement as follows:
During school term:
(a)In each alternate week from 3.00pm Friday until 9.00am the following Monday;
(b)If the children are to be with the father on the weekend of 22 and 23 July 2023 then that weekend time is suspended and the children are to remain with the mother so that they can attend and participate in a planned event.
School holidays
(c)For the purpose of school holidays, they shall be calculated as commencing at 9.00am on the Saturday after the completion of each school term and conclude at 5.00pm on the Sunday before each school term recommences;
(d)The children spend time with the father during school holidays as follows:
(i)For 4 days commencing at 9.00am on the first Saturday and concluding at 9.00am on the fifth day of each school holiday period, provided that the father has been able to secure time off work including flex time and/or holiday time;
(ii)From 3.00pm on Christmas Eve until 3.00pm on Christmas Day in odd numbered years and 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
Special occasions
(e)If the father’s and mother’s birthdays occur on a weekend when they would not otherwise be spending time with the children then the children shall spend time with the parent who is having the birthday from 3.00pm the day before until 7.00pm on the day of the birthday;
(f)Subject to paragraph 7, if the children’s birthdays occur on a weekend then provided the children are not holding a birthday party with their friends, the father shall spend time with the children from 9.00am until 1.00pm on the children’s birthday;
(g)If the children are with the father during a weekend and their birthday is to fall on that weekend, then the children shall remain with the mother until 1.00pm on the Saturday of that weekend.
Changeovers
5.During a school term, changeovers shall take place at the children’s school.
6.Where a changeover is to take place on a non-school day, changeover shall take place at B Street McDonalds Family Restaurant at Suburb C, with the parents to remain in their vehicles and the children to walk between the vehicles.
Miscellaneous
7.During the time the children are with the father, the father shall ensure that the children attend all extracurricular and social activities scheduled for the children during their time with him provided that:
(a)The mother will give the father 14 days’ notice of any non-recurrent extracurricular and social activities; and
(b)The father does not have to take the children to an extracurricular or social activity notified by the mother if:
(i)The father will be away from home with the children such as on a camping trip; or
(ii)The father has planned social occasions that conflict with the children’s nominated extracurricular or social activity such as a birthday party.
8.During the time the child is with either parent, each parent shall:
(a)Respect the privacy of the other parent and not question he children about the personal life of the other parent and use their best endeavours to ensure that other persons not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully and use their best endeavours to ensure that other persons speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent, or any members of their respective families, or any associate or partner of the other parent, in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent or any member of their respective families, or any associate or partner of the other parent in the hearing or presence of the children.
9.Both parents are at liberty to attend and/or be involved in any extracurricular activity of the children or school event to which parents are invited to attend.
10.The parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
11.By this Order each parent authorises the other to obtain medical and health care information in relation to the children and authorises health and medical providers to discuss the children’s health needs with either parent at the requesting parent’s cost and subject to that parent complying with the requirements of the provider of the children’s medical and health care.
12.For the purposes of this Order, save in the event of an emergency, the parents are to communicate by email.
13.In the event that a child requires medical treatment or prescription medication when with a parent, then that parent is to inform the other parents of this within 2 hours or as soon as practicable.
14.Each parent is to ensure that prescription medication travels with the children at changeovers.
15.Each parent is to advise the other within 48 hours of any change to their residential addresses or contact details.
16.At all reasonable times each parent is to facilitate any request made by the child for telephone contact with the other parent.
17.Notwithstanding paragraphs 1 and 2 hereof, the parents will ensure that the children shall be known by the last name Burnside.
18.The father will give the mother not less than 28 days’ notice if he is unable to secure time off work to spend time with the children pursuant to paragraph 4(d)(i). If the father is unable to secure time off work for the purposes of 4(d)(i), the children will remain in the care of the mother.
19.The father shall communicate with the children by phone or video call (via the children’s iPad) each Tuesday between 6.00pm and 6.30pm on the following terms:
(a)The mother shall initiate the call;
(b)The mother will place the children in a separate room, initiate the call and leave the room for the duration of the call so the children are afforded privacy during the call;
(c)The father is to terminate the call at 6.30pm; and
(d)The parents are restrained from recording the calls.
20.The father’s alternate weekend time pursuant to paragraph 4(a) shall recommence on the second weekend in January each year.
International travel
21.The children shall be permitted to travel outside of the Commonwealth of Australia provided the following has occurred:
(a)The travelling parent provides the other parent with not less than six weeks’ notice in writing of their intention to travel and include in the notice the destination for travel and the intended departure and return dates to and from Australia; and
(b)No less than 14 days prior to the intended departure date from Australia, the travelling parent provide the other parent with a copy of the return travel tickets (airplane or boat) for the children and the departure date and time from Australia and the return arrival date and time to Australia; and
(c)48 hours prior to departure, the traveling parent must supply in writing confirmed travel times and departure information.
22.Within 14 days of a request to do so by a parent, the other parent is to sign any and all documents necessary that relate to the application and issuing of an Australian passport for the children, or issuing of any holiday visas for the children.
23.The parent seeking to travel with the children pay the costs of obtaining or renewing the passports.
24.The mother will retain the children’s passports in her possession.
IT IS FURTHR ORDERED THAT:
25.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
On the first day of what was to be a four day trial, the parties reached agreement on a final parenting order in relation to their two children, X aged eleven and Y aged eight.
Mr Burnside (whom I shall refer to as ‘the father’ in these reasons) and Ms Burnside (whom I shall refer to as ‘the mother’) are the parents of X and Y and each have a lot to offer their children. They are intelligent and loving parents who each want what is best for their children. The father works full time as a professional and the mother works full time as an educator. It is not readily apparent why their dispute was transferred to this Court, which generally deals with the more complex family law disputes, often involving allegations of drugs misuse, abuse and mental illness.
In any event, no doubt assisted by the very thorough family report of Ms D, the parents have resolved their dispute and the independent children’s lawyer supports the agreement reached by the parents.
By way of brief background, the parents separated after a ten year marriage in 2020 and the children have lived with the mother since then while continuing to spend regular and frequent time each week with the father (apart from a few months at the beginning of 2021). Since April 2021, the father has spent alternate Thursdays overnight and alternate weekends from Friday to Sunday with the boys. X has experienced some anxiety issues which have been exacerbated by the conflict between his parents. X regularly attends upon a psychologist but presented at the recent family report interviews as friendly, confident and relaxed. Y was diagnosed in 2022 with a rare medical condition. He has been required to use a mobility aid and undergo regular physiotherapy as part of his treatment program. Y presented as polite and serious during the family report interviews. The children are aware of the conflict between their parents and this has no doubt had an impact on them. Both children were reticent about increasing the time they spend away from their mother.
The minute of order that the parties ask the Court to make by consent provides for the children to continue to live with the mother and spend alternate weekend time with the father from Friday until Monday. Changeovers, which have been a source of some anxiety for the children, will now all occur at school apart from holiday time. The father has not spent holiday time with the children since separation but under the proposed order will spend four consecutive days with the children during each school holiday period and time with them on Christmas Day each year. His weekend time with them during the Christmas school holidays will recommence on the second weekend in January of each year. While on one view the holiday time is restrictive, the parents have agreed to this order and that is a significant factor weighing in favour of making the order. The parents of course can at a suitable time agree to increase the holiday time the father spends with the children, particularly if an overseas holiday is planned.
On balance I am satisfied that in the particular circumstances of this case, the proposed order meets the children’s best interests and I make the order as set out in the signed minute of order which will be marked exhibit 1 in the proceedings.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 23 May 2023
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