Farrell and Farley

[2009] FamCA 464

FAMILY COURT OF AUSTRALIA

FARRELL & FARLEY [2009] FamCA 464

FAMILY LAW – CHILDREN – with whom a child spends time

APPLICANT: Mr Farrell

RESPONDENT: Ms Farley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: PAC 4627 of 2007

DATE DELIVERED: 18 February 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 13 February 2009

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms McIntosh

SOLICITOR FOR THE RESPONDENT: Marina Voncina Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Magee

Orders

UPON APPLICATION made to the Court and by consent other than as to orders 11, 16 and 21 AND UPON HEARING the Applicant Father in person AND the legal representative for the Respondent Mother AND the Independent Children’s Lawyer.

IT IS ORDERED:

1.That the children of the relationship E born … August 2000 and L born … September 2001 and K born … February 2004 live with the mother.

2.That the parents have equal shared parental responsibility for decisions affecting the children’s care, welfare and development.

3.That the children spend time with the father:

a)For the first nine days of each of the school holidays at the end of terms 1, 2 and 3,

b)In the Christmas school holidays as follows:

a.    In 2009 and each alternate year thereafter for the second half of the said holidays and

b.    In 2010 and each alternate year thereafter for the first half of the said holidays.

c)Such other times as agreed between the parties in writing.

4.That for the purposes of Order 3(a) and  (b) herein, the Christmas holidays are deemed to commence on the first Saturday immediately following the children’s last day of attendance at school; and are deemed to conclude on the first Sunday immediately proceeding the children’s first day of school

5.For the purpose of the mother delivering the children to the father, the mother shall deliver the children to Sydney Domestic Airport or other such place as agreed on the first weekend of the school holidays.

6.For the purpose of Order 5, the mother shall pay for her travelling costs and the father shall pay for the travel fares of the children.

7.For the purpose of giving effect to order 5, the father shall arrange the airfares of the children and the mother and thereafter the mother shall reimburse the father for the cost of her ticket within 21 days of travelling or as otherwise agreed in writing AND the father will endeavour to ensure that the children and mother are seated in consecutive seats on the air flight

8.For the purpose of returning the children to the mother at the conclusion of the time the father spends with them, the father is to deliver the children to the arrival gate at Adelaide Airport or other such place as agreed and the father shall pay for the costs of his and the children’s travel and shall provide to the mother $50.   (refer notation below)

9.For the purposes of order 3 and 7 the time in which the father travels with the children shall be within the father’s time.

10.That orders 4 and 7 are subject to availability of travel and times and the parties shall keep the other party informed of travel arrangements in writing as soon as practicable.

11.For the purposes of all orders in which writing is required pursuant to these Orders, the term ‘writing’ includes sending and receiving messages by email but does not include text messaging other than for situations in which time does not permit communication by letter or email.

12.The father shall communicate with the children by telephone between the hours of 4:00pm and 7:00pm Monday, Wednesday, Friday and Sunday.  The father shall provide to the children a mobile telephone in which he may communicate with them and the mother shall ensure that that phone is charged and available to the children.

13.In the event the father is unable to contact the children by telephone pursuant to Order 12 herein, he is permitted to contact them on the mother’s landline telephone.

14.That each parent ensure that the children are not exposed to cigarette smoke whilst in their respective care and use their best endeavours to ensure no other person smokes in the vicinity of the children.

15.That all parties notify each other of any change of residential address, contact telephone number and email address 28 days before that change if the address is known, if the address is not known, as soon as practicable.

16.Both parties shall do all things and execute all documents required to ensure that the children are known by no surname other than ‘Farrell’ for all purposes.

17.Neither party shall denigrate the other party or allow other persons to do so in the presence or hearing of the children and shall remove the children from the presence or hearing of any person making critical or denigrating remarks about the other party.

18.That the parties shall keep the other informed of any major medical issue involving the children, particularly of any medical attention or treatment received by the child and any medication requirements and that this notification shall be as immediate as practical in the event of an emergency.

19.The parties shall not drink alcohol to excess during the time the children live with or spend time with that party.

20.That the mother is to do all things necessary to ensure that:

a.The father is listed as an emergency contact with the children’s school.

b.The father is provided with the children’s school reports, awards, newsletters and applications for school photographs.

c.That the mother be and hereby is restrained from allowing the children to call any third person “dad” or “father” or any such related word.

Notation:

Adelaide airport is approximately 620 kilometres from H.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4627 of 2007

MR FARRELL

Applicant

And

MS FARLEY

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1.These proceedings concern primarily the arrangements for the parties’ children; E, born in August 2000 (8), L, born in September 2001 (7) and K, born in February 2004 (5); to spend time with their father.  Issues also arose as to the children’s surname and whether there should be an order restraining the mother from allowing them to call any person other than Mr Farrell ‘Dad’, ‘Father’ or similar words.

2.Ultimately the parties reached agreement on all but three issues.  I am required to determine the two areas of dispute referred to above and the mode of communication between the parties, for the purposes of implementation of the orders.

3.The hearing proceeded by way of submissions.  I will now determine each such issue, having regard to the requirements of Part VII of the Family Law Act and with the children’s best interests as the paramount consideration.

1.Is SMS an appropriate means of communication between the parties for the purposes of implementation of orders?

4.The father, Mr Farrell, was concerned that SMS communications could be lost or deleted, thus there would be no record available in the event of a dispute between the parties.  He said that the proposed consent orders allow sufficient time for email exchanges.

5.The mother, Ms Farley, wished to have the option of text messaging  as well as email.  She said that she has access to a friend’s computer at H but no internet facilities at her home or her partner’s hotel at O.

6.The orders provide that the children spend time with their father only during school holidays.  The reason is that he lives on the Central Coast and the mother and the children live at H.

7.It seems to me that the mother has the opportunity to communicate with the father by email in relation to the children’s time with him, which occurs only during school holidays.  In my view, however, there is some force in the submission on behalf of the mother that text messaging would be a useful means of communicating information such as flight delays. 

8.In my opinion email or paper communication should be the primary means of exchange of information between the parties.  I will not prohibit the use of text messages but I will frame the relevant order such that its use is limited to situations where time would not permit emails and letters.

2.        Should the children be known by any surname other than ‘Farrell’?

9.The mother sought an order in these terms:  “The children shall be known and identified with the father’s last name and may also be acknowledged by the mother’s maiden name to ensure the children maintain their Aboriginal cultural identity.”  She submitted that use of her surname ‘Farley’ would provide the children with a greater opportunity to identify with their Aboriginal heritage.  She pointed out that they are blonde haired and blue eyed. 

10.The mother maintained that her surname is a well known Aboriginal name in the H area, associated with the local tribe.  The father claimed that this name comes from the mother’s non-Aboriginal father.  In the absence of evidence, I have no means of making a finding as to the truth of the situation.

11.The father explained that his real concern is that his surname will be “dropped out” if an order is made as sought by the mother.  He said that the children were not known by his name during 2007 but the situation was rectified approximately 12 months ago. 

12.I have no evidence as to whether the children identify with the surname ‘Farley’.  I do not know what are the views of E and L as to their use of either surname or a hyphenated combination.  I have no evidence which would enable me to predict the effect on the children of a change from the surname ‘Farrell’.  In these circumstances, I cannot accede to this aspect of the mother’s application.

3.Should the mother be restrained from allowing the children to call any person other than Mr Farrell ‘Dad’, ‘Father’ or similar words?

13.The mother said that K calls her partner of three and a half years ‘Sammy Dad’ and Mr Farrell ‘Daddy’.  She maintained that she does not encourage the children to call her partner ‘Dad’.  On the mother’s behalf, it was submitted that the proposed order would be a “very harsh restraint on her”. 

14.The father said that the mother tells the children “[father’s first name] is on the phone” when he calls them.  He said that L has not called him ‘Dad’ for the last three or four years but she now does so when in his company.  He said further that K has told him “I have two daddies”. 

15.The Independent Children’s Lawyer described this issue as “a no-brainer”, a proposition with which I agree.  These children have a right to their father’s solid input in their lives and identity.  I entirely disagree that the proposed order would be a “very harsh restraint” on the mother.  Rather, I consider that she has a clear responsibility to do all things possible to ensure that the children identify Mr Farrell, and only him, as their father.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:                 

Date:    18 February 2009