COLLINS & MOSMAN

[2013] FCCA 2011

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS & MOSMAN [2013] FCCA 2011

Catchwords:
FAMILY LAW – Children – parenting – parenting orders – changeover – best interests of the child – one child aged 19 months – where parties have agreed on final parenting orders covering most major issues – consideration of the practical difficulty and expense of a child spending time with a parent – whether that difficulty or expense will substantially affect the child’s right to maintain personal relations with his father – consideration of Family Law Act 1975 (Cth) s.60CC(3)(e) – whether changeover should take place at a railway station equidistant between the residences of the parties.

FAMILY LAW – Property – where property orders sought in Response – where no Financial Statement filed.

EVIDENCE – Matters of common knowledge – information about train services and timetables readily available on the official website.

EVIDENCE – Evidence of settlement negotiations – where letters marked “without prejudice save as to costs” annexed to affidavits.

Legislation:

Evidence Act 1995 (Cth), s.144

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Federal Circuit Court Rules 2001, r.24.02

Applicant: MR COLLINS

Respondent: MS MOSMAN

File Number: SYC 5171 of 2013

Judgment of: Judge Scarlett

Hearing date: 4 November 2013

Date of Last Submission: 4 November 2013

Delivered at: Sydney

Delivered on: 29 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Spain

Solicitors for the Applicant: A.J. Muscat & Co

Counsel for the Respondent: Mr Vertzayas

Solicitors for the Respondent: Freedman & Gopalan (formerly VC Lawyers)

ORDERS

BY CONSENT

1. Orders in accordance with paragraphs 1 to 15 inclusive of the Minute of Consent Orders filed in Court on 4 November 2013 and marked as Exhibit “1”.

AND IT IS FURTHER ORDERED THAT

1. In order to facilitate the arrangements for the Father to spend time with the child [X] born [in] 2012 the following arrangements will apply:

   (a)until the child commences to attend school the Father is to collect the child from the Mother’s residence at the commencement of the time and return him to the Mother’s residence at the conclusion of the time;

   (b)from the date that the child commences to attend school, the changeover point between the parties will be the [K] Railway Station or at such other place as the parties shall agree.

2. The Respondent is to comply with Rule 24.02 by filing and serving a Financial Statement within twenty-one days of the date of these Orders.

3. Within a further period of twenty-one (21) days the Applicant is to file

   (a)A Reply setting out the property Orders that he seeks;

   (b)A Financial Statement; and

   (c)An affidavit setting out the facts upon which he relies in respect of the property orders sought in the Response filed by the Respondent.

IT IS NOTED that publication of this judgment under the pseudonym Collins & Mosman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5171 of 2013

MR COLLINS

Applicant

And

MS MOSMAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father for parenting orders in respect of the parties’ son, [X], who is only 19 months old. He was born [in] 2012 and lives with his mother.

2. The Application was returnable on 4 November 2013 and the parties and their lawyers have engaged in lengthy discussions leading to some Consent Orders relating to the arrangements for the child. They have signed a Memorandum of Final Orders covering most, but not all, of the matters in issue between them.

3. The mother filed a Response on the morning of the First Court Date, which includes interim and final property orders. The husband has not yet filed any reply to this claim, and the Court will make directions to allow the property matter to proceed.

Agreed Parenting Orders

1. The parties have agreed on a wide range of parenting orders, including:

   a)equal shared parental responsibility;

   b)that [X] will live with his mother;

   c)time spent with his father, including special days;

   d)communication by telephone and Skype;

   e)travel and relocation, including interstate travel; and

   f)ancillary matters, such as:

   i)notifying each other of any medical treatment provided to the child;

   ii)authorising each parent to obtain copies of reports and other documents from the child’s preschool and school; and

   iii)restraining each party from denigrating the other in the child’s presence or hearing.

2. The arrangements for the Father to spend time with the child are graduated over three different stages of the child’s life:

   a)From the present time until the child turns 3;

   b)From the age of 3 until the child commences school; and

   c)From the date the child commences school.

3. The only sticking point has been the question of changeover arrangements. When the matter was before the Court on 4^th November I drew the parties’ attention to the fact that this little boy is still very young and lengthy travelling for him would be quite tiring and stressful. To their credit, the parties engaged in further discussions and the father agreed that he would collect the child from the Mother’s residence and return him to the Mother’s residence on the following occasions:

   a)Until the child attains the age of 3 years, the child will spend time with his father from 10:00am to 1:00pm each Monday; and

   b)From the time that the child turns 3 until he commences school, from 9:30am to 12:30pm each Monday.

4. Unfortunately, they were unable to agree on changeovers for the other times that the child will spend with his father.  

Changeover Arrangements

1. The issue between the parties relates to changeover arrangements in order to facilitate the times proposed by Orders 2(a)(i), 2(b)(i) and 2(c) (i) and (iii).

2. The Orders provide for the child to spend time with his father at these times:

   (a)    From the date of the orders until [X] turns 3:

   (i)     From 10am to 4pm each Saturday;

   …

   (b)From the time [X] turns 3 until the date he commences school:

   (i)     From 5pm each Friday to 5pm each Saturday;

   …

   (c)     From the date [X] commences school:

   (i)From 4pm Friday to 6pm Sunday each alternate weekend; and

   …

   (iii)   For the second half of each school holiday period.

3. The parties separated under the one roof early in May 2013 and separated physically in early June. They have each returned to live with their parents, and the distance between their current places of residence is part of the problem. The Father lives with his parents at [R], one of the southern suburbs of Sydney, whilst the Mother lives with her parents in [B], in the eastern suburbs. Travelling time between the two places of residence is estimated at between 90 minutes and two hours. The Court was told that the distance is some 41 kilometres. The Father estimates that the round trip for him to pick the child up from and return the child to the Mother’s residence will take him about four hours.

4. The distance between the residences of the parties is compounded by the fact that the Mother neither drives nor owns a car. She relies on her father to drive her. The difficulty is perhaps exacerbated by the hostility that now seems to exist between the parties and their respective parents in law.

5. It is no doubt inconvenient and a source of financial strain on the Father that he has been unemployed since April 2013, although he deposes that he is actively seeking work.[1]

   [1] Affidavit of Mr Collins 28.8.2013 at paragraph [36]

Applications for Parenting Orders

1. The parties, to their credit, have already agreed about parental responsibility and major issues, such as with whom the child will live and arrangements for him to spend time with his father. Consequently, the Court need not consider ss.61DA or 65DAA of the Family Law Act 1975 (Cth).

2. Arrangements for changeover between parents are parenting orders, so the Court needs to be conscious of the objects and principles of Part VII of the Family Law Act 1975 contained in s.60B of the Act.

3. Those objects, set out in s.60B(1), relevantly include:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

   …

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. 

4. The principles, set out in s.60B(2), relevantly include:

   …

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children.

5. Section 60CA of the Act requires the Court, when deciding whether to make a particular parenting order in relation to a child, to regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC, which are the primary and additional considerations respectively.

6. One relevant primary consideration is that found in s.60CC(2)(a):

   the benefit to the child of having a meaningful relationship with both of the child’s parents;

7. Two of the additional considerations are those found in paragraphs (d) and (e) of s.60CC(3):

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents;

   …

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

8. This latter consideration is particularly important in this case, but all of these matters have been considered.

Conclusions

1. It remains the fact that the Court must regard the best interests of the child as the paramount consideration. He is still at a very young age and it is important for him to have a regular and frequent amount of time with both of his parents so that he may develop an attachment to both parents. He has been living with his mother since birth, and she is currently his primary caregiver, so presumably he is developing a strong and healthy attachment to her.

2. However, it is in this little boy’s best interests that he also develops a positive attachment to his father, particularly in the early years of his life. It is well established that the years from birth to 4 years of age are particularly important for a child in developing attachments to parents and other people significant to the child’s care, welfare and development. The parties, with the assistance of their lawyers, have clearly recognised that fact by negotiating times for the father to spend time with the child on two occasions each week up until the time he commences to attend school, which will be about the time he attains the age of five.

3. The Father has proposed that on some occasions the Mother should take the child by train to [K] Railway Station, which she does not support. Counsel for the Father put that [K] Railway Station is equidistant between the parties’ places of residence. It is a consideration that the child should not spend lengthy periods of time travelling on a train with his mother, but this will be less onerous on him as he becomes older. The Mother’s solicitor originally told the Court that there are no trains to [K] Station on the weekend, but that submission was later withdrawn.

4. Neither party produced any evidence about the availability of rail services between the Mother’s residence and [K], but that information is readily available on the Internet. Section 144 of the Evidence Act 1995 (Cth) permits the Court to take account of matters of common knowledge:

   (1)Proof is not required about knowledge that is not reasonably open to question and is:

   (a)common knowledge in the locality in which the proceeding is being held or generally; or

   (b)capable of verification by reference to a document the authority of which cannot  reasonably be questioned.

   (2)The judge may acquire knowledge of that kind in any way the judge thinks fit.

5. The Transport Sydney Trains website, which is the official website, provides a clear and comprehensive guide to train timetables and maps of train services and railway stations throughout the Sydney metropolitan area.

6. It can readily be seen by a perusal of the Transport Sydney Trains website that the nearest railway station to the Mother’s residence at [B] is [J] and that the train line goes directly to [K] and beyond without requiring passengers to change at any intervening station.

7. The timetable shows that trains do indeed run to [K] on weekends and on a Saturday afternoon the estimated travelling time is 32 minutes.

8. Taking this into consideration, I am not persuaded that it is practicable for the Mother at this stage in the child’s life to take him from [J] to [K] by train to meet the Father, but this state of affairs will not continue indefinitely. I consider it to be reasonable for the Mother to take the child to a changeover point at [K] Railway Station once the child is of school age. Until then, the Father will have to pick up the child and deliver him to and from the Mother’s residence.

9. Once the child starts attending school, changeovers will be at the child’s school or [K] Railway station.

10. I will order accordingly.     

Evidence of Settlement Negotiations

1. It is a matter of some surprise to note that the Father’s affidavit of 28^th August 2013 and the Mother’s affidavit of 1^st November 2013 both annex copies of letters between the parties’ then solicitors[2] clearly marked “Without Prejudice Save as to Costs”. I have chosen not to read those letters.

   [2] The mother’s current solicitors filed a Notice of Address for Service on 19 November 2013

2. “Without Prejudice” letters should not be annexed to affidavits. To do so is a clear breach of s.131 of the of the Evidence Act 1995, which says at subsection (1):

   (1)    Evidence is not to be adduced of:

   (a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

   (b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of the dispute.

3. Subsection (2) contains some exceptions to this rule at paragraphs (a) to (k), but none of the exceptions apply in this case.

Property Proceedings

1. The Mother, by her Response filed on 4^th November 2013, seeks property orders. However, she failed to file and serve a Financial Statement as required by Rule 24.02. She will need to do so before the property matter goes any further and I will order that she does so within 21 days.

2. The Father will then need to file and serve a Reply, in which he sets out the property orders he seeks, along with an affidavit stating the facts upon which he seeks to rely, and a Financial Statement. He will be allowed a further period of 21 days and the matter can be further mentioned early in the new year.  

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  28 November 2013