Hartnett and Sampson (No. 7)

[2007] FamCA 779

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 7) [2007] FamCA 779

FAMILY LAW – CHILDREN - Parenting orders – Remission by order of Full Court following expedition of appeal and grant of stay of parenting orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sampson

RESPONDENT: Mr Hartnett

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 7 June 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 7 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

THE RESPONDENT: The father appeared on his own behalf

INDEPENDENT CHILDREN’S LAWYER: Ms Beckhouse

Orders

1. Pending further order of the Full Court order 18 (ii) made on 21 March 2007 is suspended and in lieu thereof the children are to spend time with their father in Sydney in fortnightly cycles as indicated by the following pattern:

   (i)from Friday 22 June to Tuesday 26 June; and

   (ii)from Friday 6 July to Tuesday 10 July.

1. The commencement time of the periods referred to in order 1 is to be co-incidental with the arrival at Sydney airport on Fridays of the flight leaving Geelong at 3pm and the concluding time is to be con-incidental with the time the children are required to be at Sydney airport on Tuesdays to catch the 5.10 pm flight from Sydney to Geelong.

1. The father is to collect the children from the mother at the airport at the appropriate time and return them to her at the airport at the appropriate time. 

1. The mother is to keep the father advised of details of the flights including flight number and expected arrival and departure times. 

1. The mother is to be responsible for the costs associated with the delivery of the children to and from Sydney for those visits. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Moore delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827  of 2004

Ms Sampson

Applicant

And

Mr Hartnett

Respondent

REASONS FOR JUDGMENT

1. Against a backdrop of the mother’s substantive appeal having been since expedited and set for hearing on 23 August, on 1 June the Full Court allowed an appeal against my refusal to grant a stay of order 17 made on 21 March 2007 which required the residence of the children to be established in Sydney no later than 1 May 2007.  The order of the Full Court was to stay order 17 pending further order of the Full Court.  At the same time the Full Court made a further order remitting to me as the trial judge the ‘terms and conditions’ on which order 17 has been stayed.  No reasons given by the Full Court for the remission rather than exercising the discretion as part of the grant of the stay are yet available. 

2. As earlier indicated, I arranged to have the matter listed today notwithstanding the absence of any reasons which might have clarified what I am to hear because I am scheduled to be absent from the registry either on circuit or leave from today for the next 4 ½ weeks until 9 July. 

3. Given the appeal is now set for 23 August and the expectation that judgment will be given soon thereafter because the appeal has been expedited and because of the comments of the Full Court who heard the stay appeal, it is agreed by all that the remission for setting the terms and condition on which order 17 is stayed translates to a decision about the arrangements for the children pending the decision on the substantive appeal, to be made against a backdrop of the stay of order 17 granted by the Full court.  In practical terms, that calls for reconsideration of the children’s arrangements pursuant to order 18 (ii). 

4. Before mentioning the parents’ proposals, it should be noted that order 18(ii) has been complied with thus far in as much as the children have been made available in Sydney according to the times specified in that order.  But the children’s residence has not been re-established in Sydney.  Rather, they have been doing the travelling involved between Geelong and Sydney each week with their mother.  It should also be noted that they have been in their father’s care since Tuesday of this week and will remain with him until Sunday by reason of orders made by Dawe J. for compensatory time following a finding of contravention by the mother. 

5. In the time available between now and the resolution of the appeal, the mother proposes the children’s arrangements be according to a four weekly cycle which would see the children in their father’s care two nights and two days each week.  This is consistent with the times specified by order 18(ii), though her proposal is not consistent with the alternation of weekends and weekdays as ordered.  In any event, her proposal is for the children to be with their father

   Week 1 - 5pm Friday to 5pm Sunday in Geelong
              Week 2 - 5pm Friday to 5pm Sunday in Sydney
              Week 3 - 5pm Tuesday to 5pm Thursday in Geelong
              Week 4 - 5pm Friday to 5pm Sunday in Geelong

1. Obviously this involves the father travelling to Geelong for 3 of the 4 weeks and it is her proposal he pay the costs of travel and accommodation, as he has done in the past.  Her proposal for the week the children come to Sydney is that the father pay the children’s return air fares to Sydney and also that he pay either one return fare for her plus pay her $600 for accommodation in Sydney or that he pay two return fares for her to enable her to return to Geelong after delivering the children to him in Sydney and then return to Sydney to collect the children at the end of the weekend. 

2. A proposal put by the father is to ‘compact’ the time provided by order 18(ii); that is to say, as he explained it rather than having the children in his care say 15 – 17 June and 19-21 June, those periods would be collapsed to consecutive days running from 15 – 20 June.  He acknowledges it would mean a longer period between visits to something like 9 days which he suggests could be met by some provision for him to see the children in Geelong.  But it would mean the children would not be travelling to the extent they are now each week and would cut their travel in half during the time under consideration. 

3. Mr Lloyd in brief submissions says the mother’s proposal would see the father’s ‘participation’ in the arrangement by travelling to Melbourne to see the children.  He also says the mother’s proposal is in conformity with the stepped ‘logic’ of order 18(ii).  Furthermore, he says the mother has no money to pay for any travel to Sydney.  She spent the $12,000 the father paid to her under the orders as to $2,100 on flights, there have been taxis and accommodation to pay for, and she has paid $4,200 for transcripts for the appeal.  Therefore it is impracticable for her to be responsible for any of the travel involved, either on her proposed one week in three for the children to come to Sydney and certainly on the father’s proposal.

4. The father, on the other hand, submits that he paid the mother the $12,000 as required by order to enable her to move to Sydney, but it seems she did use it for that purpose.  He maintains that in proceedings earlier this year – as I recall they related to contravention proceedings – she gave evidence that she had travelled to Queensland in January at a cost of $5,000 which she borrowed from her mother.  Therefore, the father submits, she does have funds available to her.  In short, she ought to still have money left from what he paid to her for the specific purpose of moving to Sydney from which she could meet the travel involved in the upcoming period. 

5. The father made a submission about the mother ‘cherry picking’ the orders of 21 March but that does not take today’s issue any further. 

6. More to the point, he submits there are problems for him going to Geelong to spend time with the children.  The regular accommodation he had maintained is now not available.  He says there are 4 weeks of school holidays in the period under discussion and it would be difficult to get accommodation in Geelong area during that time.  All of the children’s things – by which I gather he means the things he had in the accommodation he had established in Geelong – have been returned to Sydney.  As he put it, logistically it would be almost impossible for him to resume making the trips back and forward between Sydney and Geelong as he had for so long in the past.  He adds that his son, J, is now 11 years of age and since the father has been in Sydney on weekends J’s mother has started working on weekends.  This means J would have nowhere to stay on weekends if the father were to go to Geelong and therefore he would have to fly J with him between Geelong and Sydney. 

7. Balancing these considerations, the better of the two proposals in my view is the father’s.  I accept that continuing travel over the coming 10 weeks plus would present problems for him given his responsibility for his older son and the relinquishment of the familiar accommodation he had at an earlier time.  His proposal has the advantage of reducing the extent of travel to Sydney for the children between now and when the Full Court can be expected to give judgment.  It also has the advantage of maintaining for the children the connection now established with their father’s home and general living environment, not to mention the opportunity to further their relationship with their older half brother in a home environment rather than (possibly) different motels in and around the Geelong environs. 

8. As for who pays, I am satisfied that should be the mother.  The $12,000 was paid to her for a specific purpose which has not been borne out.  At an earlier time the transcript for the appeal was to be obtained from borrowed funds.  In as much as the money paid by the father has been put to that purpose then the decision made about the use of those funds for a purpose other than moving to Sydney or travel to Sydney needs to be revisited and the initial plan implemented so as to make money available for the further travel now necessary over the next period until the appeal is determined. 

9. The children will return to their mother’s care on Sunday 10 June.  The orders for time in Sydney with their father will commence on Friday 22 June.  That is because the children will no doubt return to Geelong after their return to their mother next Sunday and they should not be put in the position of having to travel back to Sydney again on the following Friday.  That does leave a gap of 10 or 11 days before they see their father again, it is appreciated, and that is not ideal but then nothing is ideal about their circumstances.

10. [Discussion about changeover arrangements]

11. Orders as set out earlier.

I certify that the preceding fourteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  7 June 2007