Hartland & Mesny (No 2)

[2023] FedCFamC1F 1089

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hartland & Mesny (No 2) [2023] FedCFamC1F 1089

File number(s):	BRC 17137 of 2021
Judgment of:	HOWARD J
Date of judgment:	13 November 2023
Catchwords:	FAMILY LAW – PARENTING – where the Court heard submissions from the parties concerning the wording of final orders to reflect the Reasons for Judgment delivered 25 August 2023.
Division:	Division 1 First Instance
Number of paragraphs:	15
Date of hearing:	13 November 2023
Place:	Brisbane
Solicitor for the Applicant:	Condon Charles Lawyers
Solicitor for the Respondent:	O’Neill Family Law

ORDERS

BRC 17137 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HARTLAND

Applicant

AND:

MS MESNY

Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	13 NOVEMBER 2023

THE COURT ORDERS THAT:

1.That the lawyer for the father have until 4.00pm on 20 November 2023 to provide a settled copy of the final order to the Court and to the other party.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

HOWARD J

A.        These reasons were delivered ex tempore on 13 November 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

1. Judgment was delivered in this matter on 25 August 2023. The parties have been attempting to agree in relation to the wording of final orders to reflect the Reasons for Judgment. The matter came before the Court again on 13 November 2023 because of the inability of the parents to agree on the wording of the final orders. The parties have agreed on some aspects of the wording of the orders. In relation to the other aspects - the Court provides the following brief reasons.

2. The Reasons for Judgment delivered 25 August 2023 state the Court’s conclusions that these parents have the capacity to cooperate sufficiently for a substantial and significant time order. This is already happening. They also have the capacity, and they will in the future have the capacity, to cooperate sufficiently for an equal time order to operate and it will be in the best interests of X.

3. In terms of the changeover locations, there are particular preferences that the parents have nominated. Even though there is no evidence of family violence, I think it best to avoid situations where one parent might feel uncomfortable – for whatever reason. For non-school changeovers – if the father is happy for the mother to drop the child off at his place (when that is the changeover situation) – I think that should be part of the orders. In that situation – the father can at least stay at home. He knows X is coming. The mother can drop X off. That is fine. When it is X going back to the mother – non-school changeovers will take place at R Park, City C.

4. A question has arisen in relation to how much notice the mother must give to the father of her intention to travel overseas with the child. By the beginning of March each year the mother must contact the father in writing and inform the father whether or not she is planning to travel to Europe with the child midyear (i.e. during the June/July holidays). If the mother is not going overseas midyear – then the Easter holidays will be 50/50. The midyear holidays will be 50/50 if the mother is not going overseas, as will the September/October holidays be 50/50 if the mother is not going overseas in the midyear.

5. In those years when the mother decides that she will be travelling to Europe with the child midyear – the child should have three-quarters of the Easter holidays with the father in those years. In those years the mother will have all of the June/July holidays. And in those years (when the mother takes the child to Europe midyear) – the child will spend all of the September/October holidays with the father.

6. In relation to the question of who should hold the child’s two passports (Australian and Country B passports) – my view is that, for the father’s peace of mind the passports should be held by S Lawyers. They are an independent law firm (i.e. independent of the parties). Those passports can be accessed by the mother and the father as necessary. I decided that non-school changeovers when the boy is returning to the mother should take place at R Park – basically for the mother’s peace of mind. My decision here in relation to the passports, again, is made having regard to the peace of mind of, in this case, the father.

7. There will need to be an order stating that all previous parenting orders are discharged. The father’s draft proposed order dated 18 October 2023 is Exhibit 1. Paragraphs 2 and 3 from Exhibit 1 should be included in the final order. Paragraphs 4 and 5 must be worded in such a way so as to reflect the decision I have made in relation to the wording of orders concerning the school holidays each year. The proposed orders in paragraph 6, 7 and 8 of Exhibit 1 are appropriate. Orders in relation to changeovers will need to reflect the reasons I've just given.

8. In Exhibit 1 there are some proposed orders relating to restraints on the parents. The restraints are straightforward, usual and sensible. Those draft orders can be included in the final order. The same goes with proposed orders in paragraphs 11 and 12. The Court has already made it clear what order should be included so far as passports are concerned.

9. The proposed orders in paragraphs 13, 14, 15, 16, 17, 18 and 19 in Exhibit 1 – can all be included in the final orders.

10. I am not going to make any order in relation to therapeutic intervention for X.

11. There will be no special order in relation to sleeping arrangements. The parents have equal shared parental responsibility. I am not going to intervene that much into their parenting. I have made some comments in the judgment about different styles of parenting.

12. I am not going to make any order about the interpretation of when holidays start and finish. These parents should be able to work that out.

13. I am inclined to agree that the parents should send text messages to each other to inform the other parent of any medical issues (even minor ones) that the child may have before changeovers take place – so that the other parent is kept up-to-date and informed.

14. There should be an order to the effect that “In the event that the mother or the father needs to travel overnight for work – and the child cannot be cared for by the mother/father (or their spouse, partner or immediate family) that the mother/father (as applicable) with one weeks’ notice to the other parent, will be able to leave the child in the care of the other parent for the period of the travelling parent’s time away – with no make-up time to be offered”. This should be a mutual arrangement for both parents in the event that they need to travel overnight. The travel away by either parent does not necessarily have to be for work – just the fact that they are going away and they need someone to care for X. If no one else can look after X (in accordance with the proposed order) – the travelling parent should see if the other parent can look after him.

15. In the event that the mother has to travel to Country B urgently – and at short notice, and wants to take the child with her – she is going to have to write to the father and tell him about the situation. The mother and the father need to understand this carefully – if the father were to unreasonably deny a request for the child to travel at short notice to Country B with the mother – that will be something that a court would take into account when considering an urgent application to travel overseas with the child. I must say, it would have to be something that truly is urgent and important from the family perspective. The Court will be leaving such situations to these parents to sort out. If they cannot sort it out – there is always the option to bring an urgent application to the Court concerning overseas travel.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       13 November 2023