Gabor and Farro

[2020] FCCA 695

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABOR & FARRO [2020] FCCA 695

Catchwords:
FAMILY LAW – Parenting – application for children to spend time with mother – where children live with father – children to spend time with mother in accordance with her leave and school holiday periods.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60I

Applicant: MR GABOR

Respondent: MS FARRO

File Number: DNC 71 of 2018

Judgment of: Judge Young

Hearing date: 12 March 2020

Date of Last Submission: 12 March 2020

Delivered at: Darwin

Delivered on: 12 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Story

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: In person

ORDERS

UPON NOTING

A.This order is made regarding the children T born … 2004, U born … 2005, and V born … 2007, W born … 2009, X born … 2011 and Y also born … 2011 (collectively “the children”). An order is not made regarding the child Z born … 2002 due to the fact Z will be eighteen years of age in the near future.

B.The orders below regarding the children spending time with the mother are subject to the condition the mother is on leave from employment and free to care for the children for the entirety of the time they are to spend with her.

THE COURT ORDERS:

1. The children are to live with the father,

2. The children are to spend six weeks per year with the mother as follows:

   (a)three weeks in the mid-year Northern Territory school holiday period; and

   (b)three weeks in the Christmas school holiday period, commencing with the children spending the first three weeks of the Christmas school holiday period with the mother in 2020, then the children are to spend the last three weeks of the Christmas school holiday with mother in 2021, and to continue in this pattern alternate years.

3. That for the purpose of time being spent with the mother in accordance with order 2 the mother shall be responsible for booking and paying for the children’s return airfares between Darwin and NSW.

4. That the children shall communicate by telephone, FaceTime or email with the parent they are not living with at any given reasonable time.

5. That each of the parents is authorised and at liberty to contact any of the children’s schools directly and obtain information regarding the children and their progress.

6. That each parent is authorised and at liberty to request a copy of the children’s school reports, any school photo order forms and any newsletters routinely sent to parents.

7. This order authorises each parent to obtain directly from any health professional information in relation to the health of the children and for this purpose each parent shall keep the other updated at all other times with the name of any treating doctor or other medical professionals involved in the care of the children.

8. That each of the parents shall keep the other informed of their current postal address, contact telephone number and email address and advise of any change within 48 hours.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 71 of 2018

MR GABOR

Applicant

And

MS FARRO

Respondent

REASONS FOR JUDGMENT

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. This is an application in relation to six children:  T, who is 15; U, who is 14; V, who is 12; W, who is 10; and twins, X and Y, who are eight years old.  They presently live with their father in Darwin.  Their mother lives in New South Wales and is employed full time on a permanent basis as a healthcare worker there. 

3. The dispute is about how much time the children spend in school holidays in New South Wales with their mother.  The mother’s proposal is that they spend eight weeks with three weeks in the mid-term holiday and five weeks in the long Christmas holidays.  That would be the entirety of the mid-week holiday and a large chunk of the six-week Christmas holiday. 

4. The parties, for some reason that has not been explained, have not complied with the requirements of the Family Law Act to attend mediation. I asked Mr Story, who appeared as counsel for the father, why that was, and he was unable to explain to me why that may have been. Ms Farro is self-represented, and I did not ask her the question because I did not expect her to be able to answer me properly. However, this in my view is exactly the kind of dispute that the legislature had in mind when it required parties to attend mediation unless there were excuses or reasons why they should not attend mediation, because it is solvable by mediation.

5. In my view, it is little short of an outrage that the State has been called on to intervene in this dispute between two parents over such a narrow question. Mr Story as counsel for the father ought to have advised him of the requirements of section 60I, and he, the father, acting on that advice, ought to have taken immediate steps to arrange a mediation, whether by telephone or otherwise.

6. I am very disappointed that that has not occurred, not because of any particular inconvenience to the Court, there is no inconvenience to the Court; I am paid to come and sit on these cases.  The fact however, that two ordinary people have been dragged into this Court, admittedly with the mother appearing by telephone, in circumstances where no effort has been made to reach an agreement is very sad.

7. Anyway, they are here, and I am satisfied I need to make orders.

8. I said the dispute is about whether the children spend eight weeks with their mother in New South Wales or five weeks as the father proposes.  There is no disagreement about the mid-year holiday.  The only disagreement is about the Christmas holiday when the mother is proposing five weeks and the father is proposing two weeks as I understand it. 

9. I asked the mother how many weeks leave she gets in her job because her affidavit is silent on that.  I have printed a relevant part of the Group A Award from New South Wales, which I will make exhibit C1.  That appears to suggest that an employee who is required to work on a seven-day basis, which the mother suggested may be the case with her, although it is not entirely clear, receives six weeks annual leave.  All other employees receive four weeks annual leave.

10. I propose to make any time orders I make conditional upon the mother being free to care for the children in the entirety of their stay.  That is, that she be on annual or other leave and not attending her workplace.

11. Having regard to that, I propose to make orders that the children spend six weeks a year with their mother in New South Wales.  She has offered to pay the cost of that.  When I say “the children”, I mean the infant children, that is, the children under 18, other than Z, who is going to turn 18 in July.  I see no point making orders about her.  The orders will be about T, U, V, W, X and Y. 

12. The other dispute is that the father says in his affidavit that the children do not want to go to New South Wales over Christmas. The section 11F report, child inclusive report, which canvasses the wishes of the children, show that they are willing to go to New South Wales to spend holiday time with their mother. It does not say anything about a reluctance to spend Christmas time with their mother. In the absence of any independent evidence, I propose to make the standard order, which will see Christmas alternate between the parties.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 March 2020