Handel and Tabbett
[2013] FCCA 1747
•5 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANDEL & TABBETT | [2013] FCCA 1747 |
| Catchwords: FAMILY LAW – Children – parenting orders – best interests of the child – boy aged 9 years living with mother – parental responsibility – equal shared parental responsibility – consideration of practical difficulty and expense of child spending time with his father – consideration of child’s right to spend time with parents on a regular basis – travel arrangements. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61B, 65DAA |
| Applicant: | MR HANDEL |
| Respondent: | MS TABBETT |
| File Number: | SYC 1744 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 October 2013 |
| Date of Last Submission: | 21 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2013 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | Appeared in person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for all long-term matters involving care, welfare and development of the child X born (omitted) 2004.
The Mother is to be responsible for all day-to-day matters concerning the child X at all times when he is in her care according to these Orders.
The Father is to be responsible for all day-to-day matters concerning the child X at all times when he is in his care according to these Orders.
The child X is to live with the Mother.
The child X is to spend time with the Father as follows:
(a)During the School Term for each third weekend from immediately after school on Friday until 7:00 pm on Sunday OR until 7:00 pm on Monday if the Monday is a public holiday in both New South Wales and the Australian Capital Territory; and
(b)For the second half of the Term 1, Term 2 and Term 3 school holidays in each year commencing at 10:00 am on the middle Saturday of the holidays and concluding at 7:00 pm on the last Sunday of the holidays; and
(c)For two (2) weeks during the January school holidays commencing at 10:00 am on 2 January and concluding at 7:00 pm on 16 January in each year; and
(d)On such other occasions as the parties shall agree.
Notwithstanding the provisions of Order (6)(a) above, if Mother’s Day should fall on a weekend when the child would otherwise be spending time with the Father, then the child will remain in the care of the Mother on that weekend and will spend time with the father on the weekend immediately following instead.
Notwithstanding the provisions of Order (6)(a) above, if Father’s Day should not fall on a weekend when the child would otherwise be spending time with the Father according to these Orders, then the Father may give fourteen (14) days’ notice to the Mother that he wishes to have the child spend time with him on the weekend that includes Father’s Day in substitution for a weekend when the child would otherwise be spending time with the Father.
The Father is to have telephone communication with the child X on the following occasions:
(a)Each Wednesday and Sunday evening at 6:00 pm;
(b)On the child’s birthday;
(c)On the Father’s birthday;
(d)On Christmas Day; and
(e)On New Year’s Day.
The Father is to do all things necessary to permit the child to telephone the Mother on one (1) occasion during each weekend when he is spending time with the Father and on two (2) occasions each week that the child is spending time with the Father during school holidays.
For the purposes of Order (6)(a) the Father is to collect the child X from the child’s school immediately after school finishes on Friday and do all things necessary including booking all necessary flights at his expense to ensure that the child returns to Canberra on an airline flight scheduled to arrive in Canberra no later than 7:00 pm on Sunday or Monday as the case may be.
IN THE ALTERNATIVE to Order (11) above the Father may elect to arrange for the child X to travel from Canberra to Sydney by an airline flight scheduled to arrive in Sydney no later than 7:00 pm on Friday night PROVIDED THAT:
(a)The Father makes the necessary airline booking at his expense; and
(b)The Father informs the Mother of the airline booking in writing including all flight times, flight numbers and ticketing details no later than fourteen (14) days prior to the day of the flight.
For the purposes of the child spending time with the Father during school holidays as provided in Orders (6)(b) and (c) above the Father is to collect the child X from the Mother’s residence at the commencement of the school holiday time and do all things necessary to deliver him to the airline terminal in Sydney at the conclusion of the school holiday time in sufficient time for the child to be checked in for his return flight to Canberra, such flight to be scheduled to depart Sydney in sufficient time to arrive in Canberra by 7:00 pm.
The Mother is to be responsible for making all necessary airline bookings at her expense to ensure that the child returns from Sydney to Canberra at the conclusion of school holiday time with the Father as set out in Orders (6)(b) and (c) on a flight scheduled to arrive in Canberra by 7:00 pm.
The Mother must advise the Father of all airline bookings in writing including all flight times, flight numbers and ticketing details no less than fourteen (14) days prior to the day of the flight.
If the Father elects to arrange for the child X to travel from Canberra to Sydney by an airline flight at the commencement of school holiday time with him as provided in Orders (6)(b) and (c) he must do the following:
(a)make the necessary airline booking at his expense on a flight scheduled to leave Canberra no earlier than 10:00 am on the day that his school holiday time commences; and
(b)advise the Mother in writing of the airline booking including all flight times, flight numbers and ticketing details no less than fourteen (14) days prior to the day of the flight.
On each occasion when the child X travels between Canberra and Sydney to go from the care of one parent to the other in accordance with these Orders each parent must make all necessary arrangements to deliver the child to the airport in sufficient time for him to check in to board the flight and collect the child from the airport at the conclusion of his flight.
In the event that either parent becomes aware that the flight upon which the child is scheduled to travel has been delayed for any reason that parent must inform the other parent by telephone or text message of the delay as soon as reasonably possible.
If the Father is delayed by any circumstance so that he is unable to collect the child from school or the Mother’s residence at the time specified in these Orders he must notify the Mother by telephone or text message as soon as reasonably possible.
Each party must keep the other party informed at all times of their mobile telephone numbers, landline telephone numbers and email addresses and advise the other party of any change within forty-eight (48) hours.
Each party must advise the other party of any illness, injury or medical emergency suffered by the child X when the child is in his or her care under these Orders as soon as reasonably possible.
The Mother must give all necessary authorities to the school attended by the child so that the Father may receive copies of all school reports, bulletins, newsletters, information about school photographs and other information usually provided to parents of children that school.
IT IS NOTED that publication of this judgment under the pseudonym Handel & Tabbett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1744 of 2013
| MR HANDEL |
Applicant
And
| MS TABBETT |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a boy named X, who is nine years old. He seeks orders that his son should spend time with him every third weekend during the school term and that he should be able to speak to him on the telephone twice a week.
The Mother does not oppose the application for X to spend time with his father but disagrees about the way in which the time between father and son is to be implemented. She has also raised child support issues.
Background
The parties met in (omitted) 2003 and commenced to live together in Sydney in March of that year. They were married on (omitted) 2003.
The marriage was short in duration, and the parties separated in November 2003. They were divorced in 2005. The Mother returned to live in Canberra.
The child X[1] was born after the parties separated, on (omitted) 2004. He has lived with his mother all of his life.
[1] See the Response filed by the mother on 3 June 2013
The Mother moved back to Sydney in 2007 and remained living and working there until April 2010. During that time the child spent a considerable amount of time with his father.
The Father has remarried.
There is a Child Support Assessment in place, although the Father concedes that he did not make any payments of child support between August 2009 and April 2010.
The parties did not communicate from August 2009 until April 2010, when the Mother was seriously injured in an accident and was hospitalised. The Mother spent over 8 weeks in hospital, during which time another family cared for the child.
Between May 2010 and January 2013 the Father was spending time with X every third weekend and for part of the school holidays. The parties disagreed about parenting arrangements and the Mother ceased making the child available to spend time with his father.
The Father commenced proceedings by filing an Application for parenting orders on 4th April 2013. The Mother filed a Response on 28th May 2013.
The parties attended a Child Dispute Conference with a Family Consultant on 15th July 2013. The Family Consultant reported that there was general agreement that X would spend time with his father every third weekend and for half of the school holidays but there was no agreement about the practicalities.
The Family Consultant noted that there seemed to be agreement about the Father telephoning the child twice a week.
The Family Consultant described the issues in dispute between the parties:
Changeover arrangements
Ms Tabbett proposes that Mr Handel collect X from, and return him to, her home in Canberra. Mr Handel proposes that all changeovers occur at (omitted) McDonalds.
Telephone calls
Mr Handel does not agree to purchase a mobile phone for X or to pay the phone account. It remains unclear as to whether or not the parents agree that X can communicate with either parent whenever he wishes to do so.
Financial matters
There was no agreement about the payment of medical and dental expenses, child support or other financial matters (and the family consultant advised that these matters would not be discussed during the CDC).[2]
[2] Family Consultant Memorandum to Court 16 July 2013
On 6th August 2013 the Court made the following interim parenting Order:
2. The Applicant Father is to have telephone communication with the child X born (omitted) 2004 each Wednesday and Sunday evening at 6:00 pm and for the purposes of this Order the father is to telephone the Mother’s telephone at 6:00 pm on each occasion and the Mother is to do all things necessary to facilitate the telephone call.
The Application was listed for final hearing on 21st October 2013.
Evidence
The Applicant relied on his affidavit of 30th August 2013. At paragraph [17] of that Affidavit he set out the orders that he seeks.
The Respondent relied on her affidavit of 27th September 2013, which she filed on 3rd October 2013. In that affidavit at paragraph [47] she set out the orders that she seeks.
Orders Sought
The Applicant father seeks the following orders:
a. That X (“X”) spend time with me as follows:
i. Each third weekend during school term from Friday afternoon until Sunday evening and the second half of each school holiday period.
ii. To facilitate this, the Respondent, Ms Tabbett (“Ms Tabbett”) would put X on a plane to Sydney at her expense after school on Friday and I will put X on a plane at my expense on Sunday afternoon/evening back to Canberra. Alternatively, Ms Tabbett and I would drive to a meeting place half way between Sydney and Canberra, being (omitted) (for example McDonalds Restaurant) to facilitate pick-up and drop-off of X on Fridays and Sundays.
b. To have telephone communication with X on Ms Tabbett’s mobile each Wednesday and Sunday at approximately 6pm.
c. Ms Tabbett does all necessary to facilitate this contact and visits.
d. Ms Tabbett would provide 14 days’ notice in writing by email if X has an extra-curricular activity that is scheduled for a weekend that I am due to have access time with him.[3]
[3] Affidavit of Mr Handel 30.8.2013 at paragraph [17]
The Respondent Mother seeks the following orders:
a. That the Applicant, Mr Handel (‘the father’) and the Respondent mother, Ms Tabbett (‘the mother’) share parental responsibility for X born (omitted) 2004.
b. That the mother continues to have responsibility for the long term care, welfare and development of the child.
c. That the mother continues to have the sole responsibility for the day-to-day care, welfare and development of the child.
d. That X spends time with the father as follows:
i. Each third weekend during school term from 4 pm Friday until 5-7 pm Sunday.
ii. For second half of each school holiday period.
iii. That to facilitate the contact the Father as per his original Court Application and Affidavit would collect X from the mother’s home at 4pm on Friday and then on Sunday evenings would put X on a plane in Sydney, back to Canberra and the Mother to collect X from the airport to arrive no later than 7pm.
iv. Such further times as agreed between both parents.
v. The mother agrees to provide the father with two weeks notice if X wants to attend a scouting function on a weekend that corresponds with going to his Father’s.
48.That the father is to continue telephone communication with X each Wednesday and Sunday evening at approximately 6.00 pm.
49.That the Father pays to the Mother the outstanding Child Support in the amount of $2838.64 within seven days of this Order being put in place into the Mother's (omitted) Bank bank account.
50.Each parent will pay equal share of the costs to meet the reasonable medical treatments/dental needs of X.
51.That the father contributes half the costs associated with Sporting activities, i.e. swimming, Scouts memberships/camps and School excursions.[4]
[4] Affidavit of Ms Tabbett 27.9.2013 at [47]-[51]
The Relevant Law in respect of Parenting Applications
The objects of Part VII of the Family Law Act 1975 (Cth) are set out in s.60B(1), which provides for children’s best interests to be met. The principles underlying those objects are set out in s.60B(2).
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child concerned as the paramount consideration. Section 60CC sets out the way that a court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
Where the Court does make an order providing for the child’s parents to have equal shared parental responsibility, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the court does not make an order to that effect, it must then consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
All of these matters have been considered, insofar as they are relevant.
Conclusions
The orders proposed by the Father do not mention parental responsibility. By comparison, the mother seeks orders about parental responsibility that are contradictory, in that she seeks in paragraph (a) an order that the parties should share parental responsibility for the child but then goes in paragraphs (b) and (c) to seek orders that she should continue to have responsibility for the child’s “long term care, welfare and development” and sole responsibility for the child’s “day-to-day care, welfare and development”.
The term “parental responsibility” is defined by s.61B of the Act, which says:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
This is not a case where the presumption of equal shared parental responsibility does not apply because of abuse or family violence, nor has any evidence been presented to the Court to show that it would not be in this child’s best interests for his parents to have equal shared parental responsibility for him, far from it, in fact. Both parents want to play a role in their son’s life.
In my view the presumption in s.61DA(1) applies and an order will be made that the parties will have equal shared parental responsibility for the child.
That, then, brings the Court to a consideration of the matters under s.65DAA of the Act. Neither party has submitted that X should spend equal time with each of his parents or that there should be any other arrangement than that his primary residence would continue to be with his mother. The Court is required by s.65DAA(1)(b) to consider whether it would be reasonably practicable for the child to spend equal time with each of his parents.
It is clear that it would not be reasonably practicable for X to spend equal time with each of his parents, because of the distance between the parents’ homes, which is one of the matters to which the Court must have regard (s.65DAA(5)). The Father lives in Sydney and the mother lives in Canberra, and an equal time arrangement would be unworkable. Neither parent has suggested otherwise.
For the same reason, it does not appear to be reasonably practicable for the child to spend substantial and significant time with his father within the meaning of the definition in the section. The term “substantial and significant time” is defined by s.65DAA(3):
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The orders that the Father seeks are not as extensive as those orders that are contemplated by this subsection, which is not surprising when the distance between the parties’ homes is taken into consideration.
However, the time that the Father seeks is certainly sufficient to allow for the development of a meaningful relationship between the child and his father, which is one of the primary considerations set out in s.60CC(2).
The other primary consideration is that set out in s.60CC(2)(b), “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
This is not a consideration in the present case.
There are additional considerations in s.60CC(3) of the Act, not all of which are relevant. There is no evidence about the views of the child, but he is only 9 years of age. It is not contended by the Mother that the child does not want to spend time with his father.
It is also not contended by either party that X has anything other than a good relationship with either of his parents, but there is no issue that the Father has not seen the child since early January, as a result of a disagreement between the parents. He has been speaking to his father on the telephone twice a week since the interim Order was made on 6th August this year.
The Mother commented that the telephone conversations between X and his father are relatively short, but this may be due to the fact that Father and son have not seen each other for over ten months.
The Father has sought to spend time with X and to communicate with him by telephone, by attending mediation and through these proceedings.
It is the Mother’s case that the Father has failed to fulfil his obligations to maintain the child. There is a Child Support Assessment in force, and a copy of the current assessment forms Annexure “C” to the Father’s affidavit. The assessment is in force until 30th November 2013 and shows that child support is payable at a fortnightly rate of $253.82 and a monthly rate of $551.83.
The Mother concedes that the Father pays child support at the rate of $552.00 per month.[5] This amount is paid into a bank account operated by the Mother.
[5] Affidavit of Ms Tabbett 27.9.2013 at [31]
It is a cause of dissension between the parties that the Father ceased making child support payments between August 2009 and April 2010. The Father concedes in his affidavit:
I agree that I made the error in judgment of not paying child support for the period August 2009 to April 2010, due to my emotional state as a result of not seeing my son. I did not consider the legal consequences at the time.[6]
[6] Affidavit of Mr Handel 30.8.2013 at [14]
The Mother claims that the Father is in arrears to the extent of $2,838.24, which the Father disputes.
The Mother also seeks that the Father should contribute towards other amounts for the child, including medical and dental fees, sporting activities, swimming lessons, Scouting activities and school excursions.
However, the present case is an Application for parenting orders. There is a Child Support Assessment in force, and if the Mother wishes to seek an amount over and above the amount prescribed by the Child Support Assessment she will need to bring a Departure Application under the Child Support (Assessment) Act 1989 (Cth). If she wishes to enforce the payment of arrears of child support she will need to make the appropriate Application to the Court.
That said, the Father should not have ceased making payments of child support when he and the mother were engaged in a dispute over parenting arrangements. His obligation to pay child support continued regardless.
The Court must consider the likely effect on the child of any change in the child’s circumstances, including the likely effect of any separation from either of his parents. In my view, not spending time with his father on a regular basis would be likely to have a negative impact on this child. They speak on the telephone regularly and the boy would no doubt want to spend time with his father on some weekends, including public holidays, and during school holidays.
It is likely that the child would either feel abandoned by his father or resentful towards his mother if he were not able to spend time with his father.
One of the issues in this case is that referred to in paragraph (e) of s.60CC(3):
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The Father lives in Sydney and the Mother lives in Canberra. The two cities are some distance apart, although it is a matter of public knowledge that there are good roads between them and a regular airline service. Flights take less than an hour between the two cities.
The Father submits that the child should fly to Sydney on a Friday afternoon at the Mother’s expense and return to Canberra on the Sunday afternoon at his expense or, in the alternative, that the parties drive the child each way, meeting at a point midway between the two cities, such as (omitted).
His reasons are that it is tiring to drive to Canberra and back in the one day, which he was doing previously. He also believes that the parties should share the cost of the airfares, which are about $144.00 each way. He is of the view that the Mother earns “approximately $30,000.00 more per year” than he does and “owns 2 investment properties…”[7]
[7] Affidavit of Mr Handel 30.8.2013 at [21] on page 4
The Mother’s proposal is that the Father should collect the child from her home at 4:00pm on the Friday afternoons and the Father would arrange to fly the child back to Canberra on the Sunday afternoon, at his expense. Her reasons are financial, as she is the child’s primary carer and bears all the expense of supporting him, whilst the Father’s commitment remains at the amount set for child support by the Child Support Agency, currently $551.83 per month:
I do not agree to pay above CSA rate.[8]
[8] Affidavit of Mr Handel 30.8.2013 at [21] page 4
The Mother has annexed to her affidavit of 27th September 2013 a copy of the Father’s affidavit of 4th April 2013, which he filed in support of his originating Application, as she is entitled to do. In that affidavit, the Father set out his proposal:
I drive from Sydney to Canberra on the Friday afternoon to pick up the child from his home but I would now like to collect him from school to reduce the contact time with the mother. I drive back to my place of residence…in NSW with the child. I then put the child on a plane back to Canberra on Sunday afternoon/evening and the mother collects him at the arrival gate from the airline representative.[9]
[9] Affidavit of Mr Handel 4.4.2013 at [25] forming Annexure “A” to the affidavit of Ms Tabbett 27.9.2013
The Father gave oral evidence. In her cross-examination, the Mother asked him why he had changed his proposal from that set out above and he replied that he had obtained legal advice to the effect that this was not a fair arrangement for him.
In my view, it is in the child’s best interests for him to have a meaningful relationship with both of his parents. He has not spent time in his father’s company since 6th January 2013, as a result of his Mother’s unilateral decision to cease making the child available to spend time with his father.
This decision was not justified by the circumstances and was not in the child’s best interests. Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (see Family Law Act, s.60B(2)(b)).
There is a need for parenting orders to be made on a final basis, capable of enforcement if necessary, in order to ensure that this child’s right to spend time with his father can be maintained.
The child should spend each third weekend during the school term with his father, and the weekend should extend to Monday if the particular Monday following the weekend is a public holiday is a public holiday both in New South Wales and the Australian Capital Territory.
The Father may elect to drive to Canberra and collect the child from his school immediately after school on the Friday or, if he prefers, he may elect to arrange for the child to fly from Canberra to Sydney on the Friday evening at his expense. In that case, he must give the Mother 14 days’ notice of his intention not to drive to Canberra and back.
I am not of the view that it would be unduly oppressive for the Father to drive from Sydney to Canberra and back on one occasion every three weeks to spend time with his son for the weekend.
Whilst the Father claims that the Mother earns more than he does each year, she also has the responsibility of being the child’s primary carer.
The Father will arrange for the child to fly back to Canberra on the Sunday afternoon, or the Monday if it is a public holiday, at his expense. The child must be booked on a flight scheduled to arrive in Canberra by 7:00pm.
The child can spend the second half of each of the mid-year school holidays and two weeks in the January school holidays with his father. Again, it does not appear to be overly oppressive to require the Father to drive to Canberra to collect his son at the beginning of each school holiday period, but he may arrange for the child to fly to Sydney at his expense instead, provided he gives the mother at least 14 days’ notice.
I consider that it is not unreasonable to require the Mother to pay the child’s airfare for his return to Canberra at the end of the school holidays. That would only involve four airfares each year, with plenty of notice. In that way, the Mother will have ample notice of the date of the child’s return flight so she may make a booking well in advance, in order to secure a more economical fare than if she were booking a flight at short notice.
Quite clearly, the twice-weekly telephone calls should continue. The evidence is that this arrangement is working satisfactorily. The Father should also be able to telephone his son on other occasions of special significance either to the child or to himself, such as birthdays.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 29 October 2013
Key Legal Topics
Areas of Law
-
Family Law
0
0
2