Connolly and Casey - [2008] FMCAfam 123

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONNOLLY & CASEY

[2008] FMCAfam 123

FAMILY LAW – Parenting orders – contact – school holidays – best interests of the child the paramount consideration.

Family Law Act 1975 (Cth) s. 60CA

Applicant:

MR CONNOLLY

Respondent:

MS CASEY

File number:

PAC 3644 of 2007

Judgment of:

Scarlett FM

Hearing date:

6 February 2008

Date of last submission:

6 February 2008

Delivered at:

Parramatta

Delivered on:

6 February 2008

REPRESENTATION

Solicitor for the Applicant:

Mr Irvine

Solicitors for the Applicant:

Higgins & Higgins

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

Adams Partners

ORDERS

That where the child S has spent the final week of the school holidays with the father then he will spend the first weekend of the school term with the mother and the father’s time will commence on the following weekend.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 3644/07

MR CONNOLLY

Applicant

And

MS CASEY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an issue relating to parenting orders where the mother and the father have agreed on a significant number of issues relating to their son. This little boy, who is known as S, was born in May 2003. The issue that has caused the parents some concern and which with the best will in the world they cannot come to an agreement relates to time spent with each parent after S has spent school holiday time with the father.
In short, if S has spent the last week of the school holidays before school terms commences with his father, the mother, who is the respondent to the overall application, says that it is only right that he should spent the first weekend of the school term with her and then spend the following weekend with his father. The father, however, says that there are good reasons why S should always spend the first weekend of the school term with him.
This is not because the father says that there is some special significance to the first weekend of the school term but that there should be consistency in the parents’ minds, presumably also in S’s mind, so that everyone knows when, after the school holidays, this little boy will spend what weekend with which parent.
It arises in a context where the parents have agreed that there will be some school holidays that will be divided between the parents, and others where S will spend the whole of the term 3 school holidays with the father. Where the school holidays are divided between the parents the parties have agreed that depending on which year it is will depend on whether S spends the first week or the second week with the father and vice versa.
The father is very keen that there should be certainty so that clearly he can plan his life, plan his arrangements and by implication it would be suggested that S would know on that weekend he is always going to be with dad. The mother however says that this is fine if S has spent the first week of the holidays with his father and the second week with her, but if he has spent the last week of the school holidays which will happen clearly in the term 3 holidays each year because he spends the whole week of the holidays and on those school holidays where he spends the last week of the holidays, he would be going back to his father only within a week. It would be better if the first weekend then were spent with the mother.
Mr Cook, counsel for the mother, submits that whilst there may be a need to jog the parties’ memory, it may work that way for some people,

the considerations relating to time spent are more important than a fixed arrangement of the first weekend of the school term always being with the father.
The matter is being considered by the Court in the context where the parties had very serious issues to resolve. Indeed, the proceedings were commenced on the basis that the very question of with whom this little boy would live for the substantive part of the time was itself an issue. What the parents have done, however, with the assistance of a family report which I of course have read, and with the assistance of their legal advisers, have worked in a constructive and painstaking way to resolving major issues. Unfortunately, they have not been able to agree on this one particular point.
I therefore must approach the matter on the basis that the Court is not dealing with recalcitrant parents who cannot agree on anything; quite the reverse. They have gone to a considerable amount of trouble to arrive at a solution to benefit their child. They deserve credit for that and indeed I am going to be making orders by consent reflecting the agreement that they have come to.
I have also reminded the parties’ legal advisers, probably unnecessarily, that in the long run the Court is going to decide this issue on what is in the best interests of the child. The best interests of the child are and remain the paramount consideration. The Court uses the family report where there is one, and there is in this case, for assistance here and the Court also considers the material for it.
It is well established in family law that there is a need for certainty and consistency in a child’s life. The Court will look seriously at the need for a child to spend time with each of his parents and the fact that the parents are not together is something that has to be considered but time with each parent is clearly important. I understand the submission on the part of the father that for consistency and certainty it would be of great assistance for the weekend time during the school term always to commence in the first weekend after school commences. Against this I am satisfied that this is a child who needs to be with both parents and particularly after he has spent an entire school holiday period with his father, which is certainly in contemplation with the parties will be part of an order that is to be made. He would also have a wish and in fact a need to spend some time with his mother, not just on a school day when he will be going to school and coming home.
The situation is less pronounced when there are the split school holidays but if S has spent the last week of the school holidays with his father it would seem to me preferable that he would then spend the first weekend of the school term with his mother and then the father’s weekend would commence after that.
Is there a need to have the first weekend to jog the parents’ memory or perhaps jog the child’s memory? I am not persuaded that that need is as strong as Mr Irvine has submitted on behalf of the father. These are not parents who need to be reminded of their responsibilities and are not parents who cannot agree on anything about their child. The whole circumstances of this case point entirely the other way. These are parents who have come, after considerable thought, discussion and advice, to a substantial agreement about what is in their child’s best interests. The likelihood that either one of them is going to get confused over that point seems to me to be remote because the parents have too great an interest in their own child’s welfare for that situation to arise. It is not as if one parent is only going to see the child every three months or some other difficult arrangement. This is a careful arrangement that the parents have worked out.
Whilst I sympathise with the father’s concerns, in my view the best interests of the child would strongly suggest that it is appropriate for him to spend some weekend time with his mother after he has spent the final week of the school holidays with his father. I propose to order that where the child S has spent the final week of the school holidays with the father then he will spend the first weekend of the school term with the mother and the father’s time will commence on the following weekend.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 18 February 2008