COLLI & STERN (No.2)

[2020] FCCA 2105

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLI & STERN (No.2) [2020] FCCA 2105

Catchwords:
FAMILY LAW – Parenting – final parenting orders made in April 2020 – where compliance with orders is impacted by border travel restrictions between Victoria and New South Wales in respect of the COVID-19 pandemic – consideration of what is in child’s best interests – orders made varying the final orders.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS COLLI

Respondent: MR STERN

File Number: MLC 7373 of 2017

Judgment of: Judge Mercuri

Hearing date: 22 July 2020

Date of Last Submission: 22 July 2020

Delivered at: Melbourne

Delivered on: 24 July 2020

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. Whilst there is in force a restriction imposed in response to the COVID‑19 pandemic which requires the mother to self-isolate on her return to Town A after driving to Greater Melbourne, order 5(a)(ii) of the final orders made 8 April 2020 be suspended, and the following applies in its place:

   For all other changeovers, the father shall collect the child from, and deliver the child to McDonald's Family Restaurant in Town A at the commencement and conclusion of time respectively.

AND THE COURT NOTES THAT:

(A)These orders were made in the context of the COVID-19 pandemic, and in response to the current changeover orders becoming unworkable in circumstances where the mother, if required to effect changeover in accordance with the final orders of 8 April 2020, would be required to self-isolate for a period of 14 days, and would be unable to work from home during that time.

(B)To avoid any doubt, the intention is that these varied arrangements will only remain in place for so long as the restrictions referred to remain in force.  When those restrictions cease to operate, the suspension of order 5(ii) will cease, and the original changeover arrangements will come back into force and effect.

(C)The parties will, at all times, continue to comply with the COVID‑19 restrictions as directed by relevant government authorities.

IT IS NOTED that publication of this judgment under the pseudonym Stern & Colli (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7373 of 2017

MS COLLI

Applicant

And

MR STERN

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. Before the court is an application in a case filed by the mother on 10 July 2020 in respect of the child of the relationship, X born in 2017 (“X”). 

3. By way of background:

   a)the parties commenced a relationship in September 2014 and separated in November 2016, six months prior to X's birth;

   b)the mother lives in Town A, and the father lives in the Melbourne metropolitan area, a distance of some 280 kilometres; and

   c)the mother works at a factory in the associated border town, Town P.

4. This matter has a lengthy procedural history which I do not propose repeating here, other than to note that proceedings were initially commenced by the father in July 2017.  Those proceedings, which I will refer to as the substantive proceedings in these reasons, were determined by me in April 2020.  The final orders made, consequent upon my decision of 8 April 2020, are the subject of an appeal filed by the father.

5. The current application which is before the court came to the court on an urgent basis as a result of the global COVID-19 pandemic. 

6. Since the father initially filed his initiating application seeking parenting orders, his time with X has progressed, at times by agreement, at times as a result of orders of this court. 

7. As stated, final orders were made on 8 April 2020 which, amongst other things, provide for X's time with the father to move from one overnight per fortnight to two from May 2020, and then to continue to increase gradually as X got older.

8. The father has also filed an application in a case on 7 July 2020 seeking various orders, including:

   a)a stay of orders 6(a) and 10 of the final orders;

   b)a variation to various final orders;

   c)the making of further orders with respect to time with X; and

   d)for the release of the transcript prior to the appeal. 

9. The mother filed a response to the father's application in a case on 15 July 2020 seeking, amongst other things, that the father be declared a vexatious litigant.

10. Given the number of issues raised in the father's application in a case and the mother's response to that application, and the limited hearing time available before the court on 22 July 2020, each of those matters has been adjourned to a hearing on an interim basis which has been listed before me on 24 August 2020 at 2:15pm.  The remaining matter before the court therefore, is the mother's application which was listed on an urgent basis under the court's COVID-19 list.

11. That application was initially heard by Registrar Mathews on 14 July 2020, at which time the following orders were made by consent:

    a)Order 3(b) of the final orders to be suspended to enable X to spend time and communicate with the father:

    i)From 10:00am on Friday 17 July 2020 until 5:00pm on Sunday 19 July 2020;

    ii)From 10:00am until 5:00pm on Thursday 23 July 2020; and

    iii)Via Skype at 6:00pm on Tuesday 21 July 2020; and

    b)All changeovers occur at Town A McDonald’s.

12. A notation was made to those orders that the father had consented to that proposal on an interim basis only, and without prejudice to the orders he would seek when the matter was heard and determined before me.  The matter was otherwise adjourned to 22 July 2020 for determination on an interim defended basis before me.

13. In essence, the changeover orders contained in the April 2020 final orders have been rendered unworkable as a result of the restrictions imposed in New South Wales for persons living within a border community in Victoria and who have a permit to cross into New South Wales.  Those restrictions have been imposed to try and contain the spread of COVID-19. 

14. The final orders made on 8 April 2020 with respect to changeover provide as follows:

    5. Unless as otherwise agreed between the parties in writing, changeovers shall occur:

    (a)For the purposes of any time occurring prior to the child attending school:

    (i)On Wednesdays, the father shall collect and deliver the child from the day care centre at the commencement and conclusion of time; and

    (ii)For all other changeovers, the father shall collect the child from McDonald's Family Restaurant in Town A, and the mother shall collect the child from McDonald's Family Restaurant in Suburb B at the conclusion of time.

15. The mother seeks that order 5(a)(ii) of the final orders be varied so that the father is responsible for collecting and delivering X to Town A McDonald's, pending the lifting of border restrictions between Victoria and New South Wales. 

16. The mother has filed an affidavit in support of this application in which she gives the following evidence:

    a)as a professional operating from a factory, it is not possible for her to work from home;  

    b)under the directives of New South Wales Health, she is able to apply for a border permit to cross the Victoria/New South Wales border, but she will still be required to self‑isolate for 14 days if she travels outside of her border community; 

    c)if she is required to comply with the final orders in relation to changeover, this will necessarily involve her travelling outside the border community in which she lives, and she will then need to self-isolate for 14 days before she can resume work, and would need to do so after each changeover in Melbourne;

    d)she does not have friends or family living in Melbourne that could collect X and drive her to Town A; and

    e)she does not have sufficient leave to cover the entirety of the lockdown period so as to comply with the final orders. 

17. The mother also deposes to the fact that she has attempted to resolve the issues arising from the COVID-19 restrictions with the father prior to filing her application, but that these negotiations were unsuccessful.

18. When the matter came on before me, the mother made submissions consistent with the material in her application and affidavit. 

19. The father opposed the mother's application.  However, to his credit, he did concede that:

    a)the mother's work is located in Town P and she lives in Town A;

    b)the mother is not able to work from home; and

    c)the mother's compliance with order 5(a)(ii) would necessitate her self-isolating for a 14 day period prior to returning to work after collecting X in Suburb B on a Sunday afternoon.

20. Consequently, the father conceded that for the duration of the restrictions which are imposed in New South Wales in response to the COVID crisis in relation to residents in the border community in which the mother lives and works, the final orders will need to be varied to accommodate the unforeseen changes arising from the COVID-19 pandemic. 

21. The father's proposal however, is that changeover occur in Town A as sought by the mother, but that in order to limit the number of trips which he needs to make to Town A in order to spend time with X, the final orders be varied, essentially, to provide that:

    a)X spends alternate weekends with her father from Friday at 10:00am until Monday at 3:00pm, with changeover to occur at day care;

    b)X spends mid-week time with the father on Monday instead of Wednesday in Town A; and

    c)there be changes in dates and times for Skype communication between X, the father and the mother to balance the gaps in time as a result of the proposed changes.

22. The father submitted that his proposal:

    a)would not amount to a increase in time for X with the father, but merely shifts the current mid‑week time from a Wednesday to a Monday;

    b)would reduce some of the travel required to be undertaken by the father which alleviates the financial burden on him in undertaking the majority of the travel;

    c)would not amount to a reduction in time for X with the father and her siblings in his home, with whom she has a strong and loving relationship;

    d)would have virtually no impact on X's quality time with her mother in circumstances where under the final orders, the mother and X return to Town A late on a Sunday night, and X is dropped off at day care early on a Monday morning;

    e)facilitates all changeovers occurring at day care removing the potential for either parent coming into contact with one another;

    f)makes X's commute to Melbourne easier as she would be more likely to sleep in the car with a 10:00am changeover;

    g)eliminates one of the two daytime arrangements per fortnight which are currently problematic, given the restrictions imposed in Victoria as a result of the COVID-19 pandemic;

    h)allows for the more dangerous roads to travel from Town Q to Town A to be undertaken during daylight hours rather than at night time; and

    i)would reduce the number of hours driven by the father to spend time with X.

23. In support of his response to the mother's application, the father filed an affidavit affirmed on 12 July 2020, in which he deposes to the following:

    a)he is currently undertaking all of the driving to facilitate his time with X;

    b)he has spent mid-week time with X during the COVID‑19 restrictions in a tent on the Region C;

    c)the mother has not allowed any makeup time where, due to weather conditions, the father's mid-week time was not able to proceed;

    d)X is greatly enjoying the time she spends with her father, her siblings, and her stepmother in Melbourne "and clearly craves more time in our home not less";

    e)the impact of the mother's proposal is that the father would be required to undertake additional driving in circumstances where he is already undertaking three of the four trips to Town A to facilitate his time with X.  In this regard, the father points to the additional and serious negative impact this would have on him and his family, including that:

    i)it is physically exhausting;

    ii)it requires him to be away from his other two children; and

    iii)it imposes a significant financial burden on him in circumstances where both he and his wife are currently in receipt of social security benefits.

24. In his affidavit, the father also takes issue with the suggestion that the mother has made genuine efforts to resolve the issue before lodging her application. 

25. He further submits that an added benefit of his proposal is that it would see all changeovers occur at X's child care centre, therefore minimising the interactions between the parties. 

26. The mother opposes the father's proposal on the basis that it would result in X being away from her home for three consecutive nights each fortnight, and that this is not appropriate given her age.  It is common ground that X turned three years of age in 2020.

27. In response to the mother's reasoning for opposing the father's proposal, the father submitted that the only evidence currently before the court is that X has adjusted well to the overnight periods spent with him and has, in fact, indicated that she would like to spend more time with her siblings.  The father submitted that in the face of this evidence, there is no basis on which to find that three consecutive nights is too much for X. 

28. In the substantive proceedings, one of the key issues was the progression of X's overnight time with the father, and when that should occur, as well as the frequency of Skype time.

29. This was the subject of much interrogation of the family consultant by the father.  It was the father's clear view in the substantive proceedings, that whilst a slower progression might be appropriate for many children between two and three years of age, X had demonstrated that she was a resilient child who could cope with more overnight time with the father.  It is common ground that under the final orders, X has only spent 5 periods of two consecutive nights with the father since turning 3 years old in 2020. The mother submitted that an increase to three overnights per fortnight is too soon for X, and contrary to the graduated approach adopted by the court in the final orders. 

30. As stated in the reasons in the substantive proceedings, I accepted the evidence in those proceedings of the family consultant that caution needed to be exercised in extending X's overnight time with the father to ensure that progression is age appropriate. The final orders therefore provided for a gradual increase in her overnight time with the father. 

31. Whilst both parties concede that the COVID-19 restrictions require some adjustments to the orders to take into account the impact of the mother's capacity to continue working effectively if she were required to leave the border community, I am not satisfied that the time which has passed since those final orders were made would support a change to the amount of overnight time that X spends away from her primary carer which the father's proposal would entail.

32. This application is an urgent one brought on, as stated, in the context of the current restrictions imposed as a result of COVID-19 in New South Wales and Victoria and in particular, the consequences for the mother as a result of living in one state and working in another. The orders sought however, are parenting orders and therefore the court is required to have regard to the best interests of the child by reference to the various matters prescribed in section 60CC of the Family Law Act1975 (Cth).

33. In this case, the father's case is essentially that the mother's application is not in X's best interests because it would impose an undue burden on him, both in terms of time, money and indirect consequences to his family and if he is unable to take an additional trip to Town A each fortnight, X will miss out on time with her father and her siblings.

34. For her part, the mother says it would not be in X's best interests for the father's proposal to be accepted because it will result in an increase in the number of consecutive nights X spends away from her primary carer, and that X is too young for this increase.

35. As I say, the current orders were made on the basis that they have struck the right balance in terms of the time with the father, and an age appropriate progression in overnight time.  X has just moved to two overnights since late May.  The current orders provide that X's overnight time with her father will progress to three nights after she turns 4 years of age.  I am not satisfied that it is in X's best interests to increase the number of overnights that she is away from her primary carer, nor is it necessary to address the impact of the COVID-19 restrictions.

36. I accept that the additional travel for the father places an additional burden on him and his family.  However, this must be balanced against the change to X's settled arrangements as specified in the orders. 

37. I have also given consideration to whether it would be appropriate to make an order requiring the mother to contribute to the additional travel costs incurred by the father as a result of having to undertake the additional trip each fortnight.

38. In circumstances where the mother has the bulk of the care for X and receives fairly minimal child support from the father, I am not satisfied that that is appropriate or warranted in the present circumstances. 

39. Having come to this conclusion, it is therefore not necessary for me to consider the additional and consequential orders sought by the father, namely that there be a change in the mid-week time from a Wednesday to a Monday, or that there be additional Skype time. 

40. For those reasons, I make the following order:

    Whilst there is in force a restriction imposed in response to the COVID‑19 pandemic which requires the mother to self-isolate on her return to Town A after driving to Greater Melbourne, order 5(a)(ii) of the final orders made 8 April 2020 be suspended, and the following applies in its place:

    For all other changeovers, the father shall collect the child from, and deliver the child to McDonald's Family Restaurant in Town A at the commencement and conclusion of time respectively.

41. I also make the following notations:

    a)These orders were made in the context of the COVID-19 pandemic, and in response to the current changeover orders becoming unworkable in circumstances where the mother, if required to effect changeover in accordance with the final orders of 8 April 2020, would be required to self-isolate for a period of 14 days, and would be unable to work from home during that time.

    b)To avoid any doubt, the intention is that these varied arrangements will only remain in place for so long as the restrictions referred to remain in force.  When those restrictions cease to operate, the suspension of order 5(ii) will cease, and the original changeover arrangements will come back into force and effect.

    c)The parties will, at all times, continue to comply with the COVID‑19 restrictions as directed by relevant government authorities.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:         31 July 2020