DRUJE & MARTINELLI

[2015] FamCA 751

FAMILY COURT OF AUSTRALIA

DRUJE & MARTINELLI [2015] FamCA 751

FAMILY LAW – PARENTING – Travel interstate.

Family Law Act 1975 (Cth)

APPLICANT: Mr Druje

RESPONDENT: Ms Martinelli

FILE NUMBER: MLC 4051 of 2015

DATE DELIVERED: 11 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 8 September 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

PENDING FURTHER ORDER:

1. 1.1      That the child B born … 2009 (“the child”) spend the period from 10.00am on 25 December 2015 to 1.00pm on 27 December 2015 with the father;

   1.2That the father is at liberty to travel with the child to South Australia during that period

2. In the event that either parent wishes to travel interstate with the child, he or she will provide no less than 21 days prior written notice to the other party of travel and accommodation details.

3. That the child spend the period from 3.30pm on Friday 16 October 2015 to 6.00pm on Saturday 17 October 2015 with the father.

4. That the parties communicate with each other for the purposes of implementation of these orders and otherwise in relation to the welfare of the child by text message, email and any other form of electronic communication.

5. That the parties effect changeovers, when it is not possible to do so at the child’s school by the father delivering her to the mother’s home C Street, Suburb D at the front mail box and notifying the mother by text message of the child’s arrival.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Druje & Martinelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4051  of 2015

Mr Druje

Applicant

And

Ms Martinelli

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Druje and Ms Martinelli are the parents of a little girl, B born in 2009 and currently aged six years.  On 8 September 2015 the competing applications of the parties for interim parenting orders came before me in a Duty List. 

2. On 19 August 2015 the parties attended upon a family dispute resolution service and agreed upon a parenting plan.  This agreement was in the following terms:

   1.That the child [B] born … 2009 “the child” lives with the Mother.  Both parents have shared parental responsibility.

   2.That the child spend time and communicate with the Father as follows:

   (a)For the first 6 weeks on a Saturday each week from 12:30pm until 7:30pm commencing 22 August 2015.

   (b)Overnight contact with the child from 12:30pm Saturday until 7:00pm Sunday commencing 3 October 2015.

   (c)The child’s birthday weekend the Father pick the child up from school on Friday 16 October at 3:30pm and return the child to the Mother at 6:00pm Saturday.

   (d)That the Mother provide the child with a mobile phone to call the Father between 5:00pm and 6:00pm every Tuesday and Thursday.

   (e)Changes must be agreeable in writing by both parties.

   3.That the Father is to pick the child up at [E Street, Suburb F] and return the child to the Mother’s address [C Street, Suburb D] (at the front letter box).  The Father is to notify the Mother by text message when the child is at the letter box.

   4.That the parents keep the other advised of any changes to their contact and/or residential address details within 24 hours of any change thereto.

   5.That the parents be and hereby restrained by injunction from the following:

   (a)Denigrating or insulting the other parent or their family member in the presence and/or hearing of the child or allowing any other person to do so.

   (b)Discussing parenting arrangements and/or future litigation (if any) proceedings in the presence and/or hearing of the child or allowing any other person to do so.

   6.That discussions between both parents remain child focused and is conducted only via text message.

   7.That the Father attend a Men’s Behavioural Change Program.

   8.Both parents attend a Post Separation Parenting Program.

   9.That in the event the child suffers any serious medical condition or accident the parent whose care the child then resides shall immediately notify the other.

   10.The parents shall give earnest consideration to re-apply for a second Family Dispute Resolution Service, early in the New Year (2016).

3. On 8 September 2015 both parties appears without legal representation.  I requested that they each prepare a document setting out the changes which they wished to make to the parenting plan.

4. The applicant father submitted a document in the following terms:

   1.Saturdays from 12.30pm – 7pm pickup from ballet [Suburb E] return to [C Street, Suburb D].

   2.(a)      As at 12^th Sept 2015 19^th & 26^th Sept 2015 pick up 10am [C Street, Suburb D] Drop off 7pm Overnight Stay.

   (b)As at 3^rd October pick up at 12.30pm [C Street, Suburb D].  Ongoing unless parties agree.  Return following evening at 7pm.

   3.School holidays ongoing.

   Every Wed & Thurs to be dropped off by [Ms Martinelli] at [G Street, Suburb D] or by agreement between parties.

   4.As at the 3^rd October – 6^th October 2015 the child will be travelling to Adelaide with her father to visit family & dress fitting for her cousins wedding.

   5.From Nov 26^th – Nov 30^th 2015 will be travelling to Adelaide/family wedding the child bridesmaid.

   6.B to call father on Tues & Thurs between 5.00pm – 6.00pm.

   7.If [Ms Martinelli] decides to take the child away on a trip/holiday must inform father ([Mr Druje]) & agree to the terms of the trip.

   8.If [Ms Martinelli] decides to change address or anything affecting the child’s home life to confirm by way of telephone or writing stating change.

   9.Overnight stays.  [Ms Martinelli] & [Mr Druje] agree to discuss with each other that alternative days will be accepted if any party cannot have the child on the days specified in point 2(b).

   10.[Ms Martinelli] to stop threatening, lying & abusing [Mr Druje] any further!!! Enough!!!

   11.Christmas.  Father to have on the 24^th till 28^th Dec 2015 flying to Adelaide.

5. The respondent mother submitted in the following terms:

   Sat 10am from [C Street] till 7pm – school period pick up is from dance 12.30 – until 3 October when sleepover start.

   Sleepovers – as of 3^rd Oct.  2 Oct – time? the child will go to Adelaide for fitting for wed dress and return 5/7pm on the 5^th

   Order state that Applicant cannot take child out of state without written/text agreement from myself the respondent/passport to be agreed on as planning trip 2016

   Childs b/day w/end.

   Sleep over is Fri not Sat due to her booked party for Sunday 18^th.

   Pick up from school.  3.15 Fri.

   Xmas – pick up 3 pm on 25^th (if going to Adelaide) Day for return?

   School holiday – 1-2 week for applicants

   Sept 15 school holiday

   Applicant will drop off child at home 6 pm on a Wed & Thurs.  Mother will drop off child to applicant at 8.45am

   All communication and changes to be done in writing/texts

   No conversation in front of child.

   Easter April 16 child will go to Adelaide with Applicant (need to set dates).

6. The issues for determination thus appear to be as follows:

   1.Arrangements for 2015;

   2.Whether a parent requires the consent of the other party to travel interstate with the child;

   3.Arrangements for Easter 2016;

   4.Arrangements for the weekend of the child’s birthday;

   5.The mode of communication between the parties.

Background

1. The father was born in 1968 and is aged 46 years.  He works as a consultant and informed the Court that he is self-employed, apparently via a company known as H Pty Ltd.

2. The wife was born in 1969 and is aged 45 years.  She informed the Court that she works on a part-time basis. 

3. The parties commenced a relationship in 2008 and began to live together in January 2009.  There was a dispute as to the time of their separation, according to the Children and Parents Issues Assessment dated 16 July 2015.  It appears that the mother contends that the separation took place in 2010 and the father maintains that the relevant date was 2014.  The competing versions of the relationship history, as recorded by the family consultant, were to the effect that the parties occupied the same premises at times between 2010 and 2014.  The father contended that the parties attempted reconciliation during this period, while the mother maintained that she merely provided temporary accommodation for the father.

Consideration

Christmas 2015

1. The father informed the Court on 8 September 2015 that he wishes to take the child to Adelaide to spend Christmas 2015 with his family.  He said that his father is in poor health and that it is very important to him that the child spend a Christmas with her paternal grandfather and family while the opportunity exists for her to do so.  The father informed the Court that he spent time with the child on Christmas Day 2014. 

2. The mother informed the Court that she is prepared to alternate Christmas Days but insisted that the child spend this time in 2015 with her family.  It appeared from her document that she proposed that the father collect the child at 3.00pm on Christmas Day.

3. It seems to me that a compromise should be reached, such that the child spends part of the Christmas period with each of her parents.  In my view, the father’s desire that she spend time with his family in Adelaide is understandable and there should be some accommodation in that regard. 

4. I will make orders which will enable the child to spend Christmas Eve and part of Christmas Day with the mother but then travel to Adelaide with the father.  I will order that the father collect the child from the mother at 10.00am on Christmas Day and return her by 1.00pm on 27 December 2015.

Consent of the other parent to interstate travel

1. Given that the father’s family live in Adelaide, it seems to me to be inconvenient that he requires the mother’s consent on every occasion that he wishes to travel to South Australia with the child.  Similarly, if the mother wishes to take the child on an interstate holiday she should be trusted to make appropriate arrangements. 

2. I will make orders for notification by each parent to the other no less than 21 days prior to the proposed travel.  My orders will provide that the travelling parent furnish flight and accommodation details to the other party.

Arrangements for Easter 2016

1. The parties have agreed to participate in further mediation early in 2016.  I would hope that they may be able to negotiate their own arrangements for their daughter to spend time with each of them during Easter 2016 with the assistance of the mediator.  I do not propose to make any orders in relation to Easter 2016.

Arrangements for the weekend of the child’s birthday

1. The child’s birthday falls on a Saturday in 2015.  The mother requested that she spend the night of the Friday with the father rather than the Saturday as she has a “pre-booked party on Sunday”.  I see no difficulty in this proposal, as the child would see both parents on her birthday and still be able to enjoy her party on the Sunday.

The mode of communication between the parties

1. The level of volatility and conflict between the parties was readily apparent during their appearance before me on 8 September 2015.  They traded accusations and, on occasion, spoke over each other.  It seems to be clear to me that the child should be spared interactions of this nature between her parents.  Accordingly, I will accede to the mother’s proposal that communication between the parties be limited to text message and email.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 11 September 2015.

Acting Associate: 

Date:  11 September 2015