GARZA & GARZA
[2016] FCCA 1891
•23 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARZA & GARZA | [2016] FCCA 1891 |
| Catchwords: FAMILY LAW – Costs – The Independent Children's Lawyer’s costs to be equally borne by the parties – Both parties have the means – The appointment was warranted by the Court and has been effective in assisting a resolution between the parties. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MR GARZA |
| Respondent: | MS GARZA. |
| File Number: | SYC 586 of 2012 |
| Judgment of: | Judge Henderson |
| Hearing date: | 21-23 March 2016 |
| Date of Last Submission: | 23 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | Calabrese Lawyers |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
That the mother be permitted to relocate the residence of the children to a suburb within the (omitted area) including additional suburbs of (omitted).
That, upon the children’s relocation to the (omitted area), the children shall spend time with their father by agreement between the parents but failing agreement as follows:
(a)During school terms:
(i)Such other time during the week in consent Order 7.1.2
(ii)At the father’s election, and subject to him providing the mother with at least 48 hours’ notice, on each Wednesday from after school until 7.30 pm (or such other week night as may be agreed between the parents) NOTING that the mother agrees to the father being present in her home with the children during this period of time (and the mother shall vacate and shall remain away from the home during this time).
(b)During school holidays:
(i)For the June/July and April school holidays.
(ii)The father is to return the children to the mothers care the Friday evening before school resumes.
(iii)In even-numbered years, the father is to have the children from 10am Christmas Eve for a period of 21 days.
(iv)In odd-numbered years, from 10am Boxing Day for a period of 21 days.
(v)In odd-numbered years the Father may spend four weeks with the children from 10am Boxing Day for 28 days for an overseas holiday. The Father must provide the Mother with 60 days’ notice in writing of his intention to travel, a travel itinerary, return air tickets and contact details of where the children will be staying.
(vi)In even-numbered years the Mother may spend four weeks with the children from 10am Boxing Day for 28 days for an overseas holiday. The Mother must provide the Father with 60 days’ notice in writing of her intention to travel, a travel itinerary, return air tickets and contact details of where the children will be staying.
(vii)By agreement the Mother and Father are able to vary the times of the overseas holidays and other time they spend with the children.
(viii)The Father shall have no more than two additional weekends each school term with his son, [Y]. The Court notes that the Father is happy for [X] to accompany [Y] on these occasions if she chooses to do so.
(ix)The Father is to give the Mother no less than 14 days’ notice of which additional two weekends during the school term he proposes to spend with the children.
BY CONSENT
That all previous parenting orders in relation to the children, [X], born 2004 and [Y], born 2007 (“the children”), be discharged.
That the parents have equal shared parental responsibility for the children.
That the children live with the mother.
That, until such time as the children’s residence is relocated to the (omitted area), they shall spend time with their father as agreed between the parents, but failing agreement as follows:
(a)During school terms:
(i)On each alternate weekend from 6 pm on Friday until before school on Monday, and
(ii)From after school on Wednesday until before school on Thursday in each week.
(b)For one half of each school holiday period as agreed between the parents, but failing agreement, the first half in odd numbered years and the second half in even numbered years.
(c)At other times as agreed between the parents.
That, upon the children’s relocation to the (omitted area), the children shall spend time with their father by agreement between the parents but failing agreement as follows:
(a)During school terms:
(i)On each alternate weekend from 5 pm on Friday until 6 pm on Sunday;
(ii)At the father’s election, and subject to him providing the mother with at least 48 hours notice, the time referred to in Order 6.1.1 shall be extended to commence at the end of school on Friday and/or conclude at the start of school on Monday.
(b)During school holidays:
(i)For a period of 10 days during each of the Term 1, 2 and 3 school holiday periods as agreed between the parents but failing agreement, the first 10 days of each holiday period.
(ii)At other times as agreed between the parents.
For the purposes of Orders 5.2 and 6.2:
(a)The first day of the school holidays is the first full day following the last day of the school term and the last day of the school holidays is the last full day prior to the children being required to return to school.
(b)As long as either child attends a public school, the school holiday periods will be the NSW public school holidays.
(c)If both children are attending a private school, the school holiday periods will be the school holiday periods prescribed by that private school.
Notwithstanding any other Order, in the event that either parent proposes to travel overseas with the children during the Christmas school holiday period, then provided that parent notifies the other parent in writing at least six (6) weeks prior to the proposed date of travel, the children may spend a period of up to 4 weeks with the parent with whom they are travelling.
Notwithstanding any other Order, the children shall spend time with their father on all weekends that include a NSW public holiday (except Easter if outside school holidays), by agreement between the parents but failing agreement, from 5 pm on Friday until 6 pm on Monday.
That for the purposes of changeover, the mother shall deliver the children to the father’s residence at the commencement of the time, and the father shall return the children to the mother’s residence at the conclusion of the time, unless otherwise agreed between the parents. In the event that time is to commence at the end of school or conclude at the start of school, then changeovers will occur at the children’s school(s).
That, upon the relocation of the children to the (omitted area), each parent shall do all acts and things necessary to ensure that the children communicate with their father by Skype or FaceTime on days and times as agreed between the parents but failing agreement between the hours of 5 pm and 6 pm each Wednesday and Sunday if the children are not in the father’s care on that day.
That each parent be at liberty to obtain from the children’s school(s) information concerning the children’s education, including copies of school reports, general school newsletters and school photograph order forms.
That each be at liberty to attend all events at the children’s school(s) to which parents are invited.
That each parent be at liberty to arrange separate parent-teacher interviews with staff at the children’s school(s).
That each parent be at liberty to attend all extra-curricular and sporting events involving either of the children.
That each parent notify the other as soon as practicable in the event that either of the children suffers a major illness or injury, or is hospitalised, whilst in that parent’s care.
That each parent be and hereby is restrained from denigrating or making critical or derogatory remarks about the other parent in the presence or hearing of either of the children, or allowing any other person to do so.
That each parent be and hereby is restrained from discussing these proceedings, or any issues raised in these proceedings, in the presence or hearing of either of the children, or allowing any other person to do so.
That in the event of a dispute arising in the future in relation to the children, the parents will first engage with a Family Dispute Resolution Service to attempt to resolve the dispute before commencing any further litigation.
That on or before 24 June 2016 each parent pay to Legal Aid NSW the sum of $3,670.50 being their contribution towards the costs of the Independent Children’s Lawyer in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Garza & Garza is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT |
SYC 586 of 2012
| MR GARZA |
Applicant
And
| MS GARZA. |
Respondent
REASONS FOR JUDGMENT
In the matter of Garza & Garza, the parties have, to their credit, come to final agreement that the mother and children remove themselves permanently to the (town omitted) area. This is a testament to the father’s parenting capacity and an ability to put the needs of the children before his own needs. He and the mother are to be congratulated on the arrangement as these are not easy matters to deal with.
Each of the mother and the father has been cross-examined. Ms C family consultant prepared a report, and she was also cross-examined in the matter.
There was extensive affidavit evidence read by me however the parties determined, on the third day of the trial, that they would come to their own arrangement, which is far preferable to me making a decision concerning their children that decision.
There are a few issues, as, inevitably, there are in such difficult matters, that the parents cannot agree upon. They are;
a)Time in school holidays
b)Time midweek for the father; and
c)Additional time for the father and [Y], but, ultimately, both children, if that is their wish.
There are two children, [X], born 2004, and [Y], born 2007.
The parents have agreed to the majority orders handed to me by the Independent Children’s Lawyer.
They have agreed orders 1, 2, 3, 4 and 5, subject to a determination by me of what is meant by the (omitted area).
To order 6, subject to a determination by me of what is meant by the (omitted area).
Order 6.1, subject to me determining the default position if the father is unable to attend to collect the children on a Wednesday in (town omitted) and take them to school Thursday morning.
The parties have not agreed in relation to school holiday times. The mother seeks the father have 10 days in each midterm holiday. The father seeks two full holiday periods.
The parents have not agreed in relation to the Christmas time being the quantum of time and in particular, the additional time for [Y] to spend with his father.
The definition of ‘(town omitted)’
Initially, the mother sought an order that she be able to move to the (omitted) area. I was concerned that this is an area as far south as (omitted). Now, the mother agrees to an order referring to the (omitted area) and four additional suburbs in an endeavour to minimise litigation to enable her to achieve one of her aims of moving to purchase a home.
The mother has looked at one home in particular at (omitted), is just outside the (omitted area) and over the bridge, which crosses (omitted). She says that there are four suburbs just outside of (town omitted), which are (suburbs omitted) she may purchase a home in .Each of these suburbs are, perhaps, 10 minutes additional driving time from the last point of the city of (town omitted), which is (suburb omitted).
The father says the limit should be the (omitted area).
I find favour with the mother’s position. The 4 above suburbs are very close to the (omitted area). Giving the mother the capacity to live in those suburbs will enhance her aim of buying a house a most important factor for her which the father acknowledged, in his evidence, was important to the mother.
Her position will minimise further litigation. If the mother sees a house in (suburb omitted) but cannot buy that house because it is just over the bridge from the end point of the city of (town omitted) she may return to seek such an order. On a practical level it makes little sense to not extend her possible search area for a home by 10 minutes.
Much of the time, hopefully, that the father can spend with the children will be to and from school in (town omitted). (town omitted) City itself is in the southern part of the city of (town omitted) and I would hope that the father is able to avail himself of delivering his children to and from school, with the mother arranging for the children to be delivered to him on a Friday afternoon when he is to spend a weekend with the children. I find favour with mother’s orders.
Thus the area she may move to is the city of (town omitted) and suburbs of (suburbs omitted).
Time on Wednesday
In relation to Order 6.1.3, that the father may, he hopes, be able to attend (town omitted) on a Wednesday, collect his children from school, or the mother’s home perhaps, spend overnight in (town omitted), taking them to school the next day. If he can achieve that, that will maintain what has been the arrangement for the children whilst living in Sydney, in (omitted).
However I accept he may not always be able to do this as his job is very taxing. It is performance based and he works long hours. As he said in evidence, he has flexibility, but he achieves this by blocking time out of his diary and making it up at another time. Thus he has flexibility of time but this flexibility is dependent upon when he bale to do the makeup time
Thus he says if he cannot spend time on the Wednesday, he spends time on either the Monday or Tuesday of that week as agreed by parents will still have to agree, or at his nomination.
I do not accept his position that this change be at his nomination. Thus order 6.1.3 will read: “such other time during that week as may be agreed”. If the parents agree to change form the Wednesday position then his time is changed if not there will be no time.
The parents have a history of being able to agree, of being able to put forward proposals that are best for their children. I accept that in the last 12, perhaps, to 15 months their relationship has deteriorated. That is unfortunately due to this Court’s lack of resources to hear this matter at a more appropriate time in 2015.
I am hoping, now that the parties have come to this resolution, their positions are now cemented, in terms of where the children live, that they will get back to what has been, for their children and in my eyes, a very cooperative and positive parenting relationship, which has benefited these children immensely.
Midterm Holidays
The father says to me, “It’s easier for me”, or, “Better for me, for my work”, or, “More convenient”, or, “I’m better able to arrange my time” – whatever words I use, and I’m not being pejorative “that I have the whole of two of the midterm holidays”, rather than, as the mother and the ICL propose, 10 days in each midterm holiday period. I accept what the father tells me about this being a better arrangement for him. I cannot disagree. However, to say he cannot have the June/July holidays but can have the whole of the September/October and April holidays is not accepted by me ,
It seems to me if the father’s going to have a lengthy period of time in January, as he puts forward to me, then he should be having the June/July school holidays with the children and he may then elect by giving the mother 30 days notice in writing whether he has the whole of the April school holidays or the whole of the September school holidays, but his time will be June/July.
I will provide for the parties to vary the holiday times, if they need to.
So I find favour with the father’s position, two weeks. Two weeks of two of the term school holidays. One of them will be the June/July and he will give the mother notice of 30 days, whether it’s September/October or April.
Additional time with Father
The father put forward an order that he should have additional time with [Y] one period each month. I found that would be excessive, given he is seeing him alternate weekends.
There was clear evidence from the family consultant that [Y] would benefit from additional time with his dad. There was no particular amount of time given, but one-on-one time with [Y] and his dad would benefit him. There was evidence that [Y] may suffer the most from the change to (town omitted) and not seeing his dad at times, almost daily. Sometimes at school as his father walks to the train station, he sees [Y] in the playground and they talk. His father attending the school events as he now does and the ad hoc arrangements the parents had come to where the father would often spend a Sunday on the mother’s time at the mother’s home with the children. That won’t be able to necessarily, occur as it has been done because of the distance between (town omitted) and Sydney.
I find that the father should have no more than two additional weekends each school term with his son, [Y]. I will make a notation that he’s desirous, willing, and happy for his daughter, [X], to accompany [Y] at that time if she chooses, but that is a matter entirely for [X].
The father is to give the mother no less than 14 days notice of which additional two weekends he will seek during the school term and that is a matter entirely up to the father in that sense.
Christmas/January Holidays
Now, in relation to the school holidays in January. It would appear that the children have seven weeks holidays.
The mother’s proposal which made a lot of sense was two, three, two, weeks to each parent alternating each year. One year she would have two weeks, then the father three, then she would have the last two and it would reverse the other year.
The father tells me he cannot do that. His downtime is Boxing Day to Australia Day each year and as this is the time the business is not operating hat is the time that he says he can spend time with the children. That’s a period of a little over four and a half weeks.
There is evidence that the children pine for the other parent if they’re away from that parent for too long, even in their other parent’s care. There was evidence that the father returned the children when he had them for a period of time in holidays for three weeks to their mother because they were pining and they wanted to see their mother. Again, this cooperative approach.
The father seeks four weeks each year in January, with the mother to have the time before his Boxing Day time and perhaps the few days after the children return to school. These children cease school a good week before the public schools, so the children’s school holidays start 14 December.
The father says he cannot have the children until sometime on Boxing Day for his block of time and he seeks that there be an alternating period of time at Christmas. So one year they’re with their mum, Christmas Eve to sometime Boxing Day and then he has his holidays. The next year they’re with their father from Christmas Eve for his period of holidays and then they’re back with their mother.
Each agree with the mother’s proposal that the children would be with one parent each alternate year over the Christmas period in a block time.
Although I see some real value in the mother’s orders of two, three, two, in an endeavour to make orders that minimise litigation, the only way I can effect that is by giving the father three weeks, effectively from his Boxing Day time or his Christmas Eve time and then their mother would have the children at the beginning and at the end of the holidays. I would be concerned that if the children are not going overseas that they have a four week block of time with one parent. However I will give each the opportunity to have a four week holiday with their children if they are going overseas, by giving the other parent 60 days notice of that time.
In this matter an application has been made of the independent children's lawyer’s costs to be equally borne by the parties in the sum of $3,670.50.
In making a costs order, I must be satisfied I should exercise my discretion under section 117(2) of the Act. In circumstances where these parents both have jobs and the father a significant , the mother has some money in the bank, which I understand she is putting towards a purchase of a home for herself and her children and each have paid legal fees they are still parties with means and in circumstances where the appointment of the independent children's lawyer was warranted by the court and has been effective in assisting a resolution and in resolving this matter I propose to exercise my discretion to make a costs order.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 23 March 2016
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