HAZE & YEATS

[2015] FamCA 332

FAMILY COURT OF AUSTRALIA

HAZE & YEATS [2015] FamCA 332

FAMILY LAW – INTERIM PROCEEDINGS – PARENTING – Where the parties have two Yeats children – Where the children are in the primary care of the mother in the Region J – Where the children only recently commenced overnight time with the father – Father’s application for relocation of the children to Sydney dismissed as it would not be in the best interests of the children – Spend time orders made.

FAMILY LAW – INTERIM PROCEEDINGS – PROPERTY – Where there is a dispute between the parties as to the period of cohabitation – Where both parties are in employment – Where the wife’s financial position has improved since separation – Where the wife seeks payment of a sum which would be immediately spent on expenses – Where the funds would not be recoverable – Where the husband argues the wife should have no adjustment in her favour due to his proposed care arrangements for the children – Wife’s application for interim property settlement dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Haze

RESPONDENT: Ms Yeats

FILE NUMBER: SYC 2809 of 2014

DATE DELIVERED: 14 April 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Ritarno with Ms Smith

Orders

IT IS NOTED

1. That the mother’s application for spousal maintenance is not pressed and is therefore withdrawn and dismissed.

IT IS ORDERED

1. That the mother’s application for interim property settlement is dismissed.

2. That the children B born … 2013 and C born … 2011 (“the children”) live with the mother otherwise than as provided in these orders.

3. That commencing on Saturday 25 April 2015 the children live with the father each alternate weekend from 9am on Saturday until 4pm on Sunday.

4. That commencing 15 April 2015 the children live with the father from 9am on Wednesday until 9am on Thursday.

5. That notwithstanding any other order to the contrary:

   a.   during Christmas the children shall live with the father from 8.30am on Christmas Eve until 11am on Christmas Day in 2015 and each alternate year thereafter;

   b.   and from 11am on Christmas Day until 4.30pm on Boxing Day in 2016 and each alternate year thereafter.

6. That pending further order during Easter:

   a.   the children shall live with the father from 2pm on Easter Sunday until 4.30pm on Easter Monday in odd numbered years; and

   b.   from 4.30 pm on Holy Thursday until 2pm on Easter Sunday in even numbered years.

7. That the children shall spend the Saturday immediately following each child’s birthday with the father from 9am until 4pm if that is not a weekend when the children would usually live with the father.

8. That on the weekend of Father’s Day the children live with the father from 9.00am on Saturday until 4.00pm on Sunday.

10.That on the weekend of Mother’s Day the children’s time with the father is suspended if they would ordinarily live with him on that weekend.

11.That each of the parents is entitled to enrol the child C at any school chosen by the parent and the other parent will co-sign the enrolment forms NOTING THAT the signing of enrolment forms is not indicative of an agreement to enrol the child C in any particular school or as to the time when he will commence school.

12.That each of the parents create a dedicated email address to be used for their communications in relation to the children.

13.That unless otherwise agreed between the parents changeovers for the purpose of these orders will take place at D Playground, E Street, Suburb F.

14.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Haze and Yeats has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2809 of 2014

Mr Haze

Applicant

And

Ms Yeats

Respondent

REASONS FOR JUDGMENT

1. Before the Court are interim parenting applications brought by the applicant, Mr Haze, to whom I will refer as the father, against the respondent, Ms Yeats, to whom I will refer as the mother.

2. The mother, in her response to the father’s interim parenting application, also applies for interim property settlement orders. Her application for spousal maintenance was withdrawn in the course of discussion. 

3. The parties have two children, C, born in 2011 (“C”), and B, born in 2013 (“B”) (“the children”). 

FINANCIAL PROCEEDINGS

1. The mother’s application for interim property settlement comes before the Court in circumstances where there is a live dispute between the parties about the period of cohabitation. On the mother’s case, the parties lived together for 21 months in two separate periods and, on the father’s case, the parties lived together for a total of three months.

2. The mother does not claim to have made any contributions to the assets which have been accumulated by the father. Her only claim enunciated in her affidavit material is a claim for a parenting contribution. 

3. Both parents are in employment.

4. It is the father’s case that, ultimately, the children should live with him in alternate weeks and with the mother in alternate weeks and that, therefore, there would be no adjustment in favour of the mother to take into account the future care of the children. 

5. Evidence before me suggests that, in the course of the period when the parties were in a relationship, the mother’s financial position has improved. She is now the owner of a property at Suburb G, which she estimates to be worth $700,000. The mortgage on that property has been reduced by the sale of another property at H Town and now stands at approximately $392,000. No doubt in the final hearing there will be evidence about the circumstances in which the mother’s asset position was able to be improved. 

6. The father’s case, that the mother should receive no adjustment of assets in her favour, may not be strong, but it cannot be said that it is not arguable.

7. The mother seeks an interim property settlement which would require the payment of a sum of money to her which she says will immediately be spent on specified expenses. Those funds would therefore not be recoverable.

8. In those circumstances, I do not propose to make an order for interim property settlement. 

PARENTING PROCEEDINGS

1. The issues for determination before the Court are these: 

   ·    Firstly, the father’s application for the children to relocate to Sydney;

   ·    Secondly, the time the children will spend with the father until the determination of the final proceedings;

   ·    Thirdly, the time the children spend with the father on special occasions; and

   ·    Finally, the issue of whether the older child, C, should be enrolled at school. 

2. There is no dispute that the mother has been the primary carer for the children. On the father’s case, the parents only lived together in a relationship for three months and for a further period of time after the end of that relationship they lived under the one roof in a property owned by the father in Suburb I. On the father’s case, B was born after the date upon which the parties separated. 

3. The mother left the Suburb I home in circumstances where the property was placed on the market for sale in October 2014. She and the children lived with her parents in Region J. 

4. It is her case that she had no other available accommodation. 

5. Until December 2014, the mother and the children lived with her parents.  In December 2014, but prior to the filing of the father’s applications before the Court, the mother arranged to rent accommodation for her and the children in the Region J area proximate to the place where her parents live. 

6. On 23 December 2014, the father filed an application in a case seeking orders that the mother relocate with the children to Sydney and on 27 March 2015 the father filed an amended application seeking orders that the mother return the children to the Sydney metropolitan area which relevantly means, according to his application, the suburb of Suburb F and the local government areas of Suburb K, Suburb L, Suburb I, Suburb M, Suburb N, Suburb O, Suburb P, Suburb Q, Suburb R, Suburb S and Suburb T.

7. When the matter came before me for hearing on 14 April 2015, the children had been living in Region J for six months.

8. It is the mother’s evidence that she is assisted with child-care by her parents and the children are enrolled for some days each week in day care. 

9. I accept the submission of the mother that if, in accordance with the father’s application, she moves to the northern limits of the Sydney metropolitan area – that is the northern reaches of Suburb F – the children’s changeover travel will be reduced by about 30 minutes. 

10. I accept that the children are settled in their current environment and that the mother is reliant upon the assistance of her parents for their care. I am not persuaded that it is in the best interests of the children to be relocated according to the proposal of the father which would be further disrupting for them.

11. In relation to the time the children should spend with each parent, the father asks the Court to make an order that the children spend alternate weekends with him from Friday evening until Sunday evening. 

12. The mother proposes that the children spend from Saturday morning until Sunday afternoon each alternate weekend. 

13. The father also asks the Court to make an order that the children live with him each Wednesday until Thursday at 9 am and the mother proposes that the children spend alternate Thursdays with the father until Friday morning. 

14. The children only commenced overnight time with the father on 19 February 2015. B is just two years of age and, in my view, two nights away from his primary carer would at this time be too long. However, there are advantages to the children of settling into a routine whereby they spend a specific night and day each week with their father. That routine can then be maintained into the long-term and would be consistent with weekend time ultimately, at an appropriate age, being extended to encompass Fridays and Mondays. 

15. The father has made arrangements to be available to care for the children on Wednesdays. That is a fact that has been well-known to the mother for some time. In my view, it is appropriate that the children spend each Wednesday with their father until Thursday morning. 

16. The parties disagree about the arrangements which should apply on special occasions. I prefer the father’s proposal for Christmas and Easter arrangements, as his proposal involves less changeovers than does the proposal of the mother. 

17. In relation to Father’s Day, I will order that the children be with the father on the weekend of Father’s Day from 9 am Saturday until 4 pm Sunday, in addition to any other weekend time. On the weekend of Mother’s Day, the orders for the children to spend time with the father will be suspended. 

18. In relation to birthdays, the order of the Court will be that the children spend the Saturday immediately following each child’s birthday with the father from 9 am to 4 pm if that is not a weekend that would usually see the children living with their father.

19. There is a dispute between the parents about the issue of enrolment of C at school. In my view, each of the parents should be entitled to enrol C at any school he or she chooses and the other parent should co-sign the enrolment forms. 

20. That, however, would be on the clear understanding that enrolment does no more than reserve a place for C and does not constitute any agreement in relation to where C will commence school or when C will commence school.

21. The parties have agreed to put in place a dedicated email address to communicate about matters which relate to the children and orders will be made accordingly. 

22. In my view, it is appropriate that the parents share the travelling for changeover and that the mother’s proposal for changeover to take place at Willow Park playground is appropriate. 

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 April 2015.

Associate:

Date:  8 May 2015