HEATH & PASCALL (No.3)
[2020] FCCA 3050
•11 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEATH & PASCALL (No.3) | [2020] FCCA 3050 |
| Catchwords: FAMILY LAW – Children – interim hearing – changeover location for child’s time with father – where final hearing recently concluded and judgment reserved – where Court indicated at the conclusion of the final hearing that the current changeover location was not in the best interests of the child – where parties unable to agree to a new changeover location. |
| Legislation: Family Law Act 1975 (Cth) ss.60CA, 60CC, 62B, 64B, 69ZL |
| Applicant: | MR HEATH |
| Respondent: | MS PASCALL |
| File Number: | BRC 8029 of 2018 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 2, 3, 4 and 5 December 2019 and 4, 5 and 6 November 2020 |
| Date of Last Submission: | 9 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Frizzell |
| Solicitors for the Applicant: | Ms Lowe Keyworth Harris & Lowe Family Lawyers |
| Counsel for the Respondent: | Mr Larsen |
| Solicitors for the Respondent: | Mr O’Sullivan of O'Sullivans Law Firm |
| Counsel for the Independent Children's Lawyer: | Mr Waterman |
| Solicitors for the Independent Children's Lawyer: | Ms Chan of Queensland Legal Aid |
THE COURT FINDS THAT:
It is in the best interests of X born in 2018 (‘the child’) to make the following orders.
THE COURT ORDERS THAT:
Paragraph 14 of the Orders made 20 December 2019 be discharged.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Unless otherwise agreed in writing between the parties, all changeovers occur when applicable:
(a)at the child’s day care centre or pre-school on all days that the child attends; and
(b)on all other occasions, and subject to paragraph 3 herein, at G Contact Centre (“the new contact centre”) with the parties being equally responsible for the costs associated with the changeovers at the new contact centre.
For the purposes of paragraph 2(b) herein:
(a)within seven (7) days of the date of these Orders, each party contact the new contact centre to enrol for their respective intake session and each party be solely responsible for the cost of their intake fee;
(b)pending the new contact centre being available, the parties continue to use the C Contact Centre located at Suburb C; and
(c)once the new contact centre becomes available, on days that the new contact centre is not open or not operating for whatever reason on any relevant day, changeovers occur at the Suburb H Police Station carpark located at J Street, Suburb H.
THE COURT NOTES THAT:
(A)These Orders are to be read in conjunction with the Orders made on 5 December 2019 and 20 December 2019.
(B)The substantive parenting matter remains adjourned to a date and time to be fixed for judgment hearing.
(C)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Heath & Pascall (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
BRC 8029 of 2018
| MR HEATH |
Applicant
And
| MS PASCALL |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court delivers these oral short-form reasons pursuant to section 69ZL of the Family Law Act 1975 (“the Act”).
In this matter, the Court is asked to decide a discrete interim parenting dispute relevant to the family law proceedings between MR HEATH (“the father”) and MS PASCALL (“the mother”).
The relevant child of their relationship is X born in 2018 (“X” or “the child”).
This final hearing of the substantive parenting matter occurred over seven (7) days in late 2019 and last week and concluded on 6 November 2020. Final judgment is reserved.
Background
While the final judgment in relation to the substantive parenting dispute is reserved, the Court raised a concern at the conclusion of the second last hearing day, and again following final submissions on the final hearing day, about the current location for changeovers being the C Contact Centre located at Suburb C. I note that the current interim orders require all changeovers to occur at that contact centre when they do not occur at the child’s day care centre.
The Court’s concern relates to the distances to be travelled by the parties and the child to effect changeover noting that the mother now lives in the north western suburbs of Brisbane and the father remains living in the south western suburbs of Brisbane. I note the following:
·the distance between the parties’ current residences is approximately 46 km;
·the distance between the father’s residence and the C Contact Centre is approximately 62 km; and
·the distance between the mother’s residence and the C Contact Centre is approximately 25 km (further noting that the location is further north from the mother’s residence).
I note that I gave the parties a short period of time to make a genuine attempt to reach agreement on the interim issue of changeover.[1] By close of business on 9 November 2020, the solicitors for each party advised my chambers by separate emails that the parties were unable to reach agreement. Those emails also included their brief submissions as to their separate proposals for a new changeover location.
[1] Paragraph 5 of the Orders made on 6 November 2020.
Proposals and submissions
The Court will now briefly outline the respective proposals and submissions of the parties.
Father
The father proposes three location options:
·Option 1: Suburb K McDonalds Playground, L Street, Suburb K – the father submits that this location is 22 km from his home and 23km from the mother’s home;
·Option 2: Suburb H Police Station Carpark J Street, Suburb H – the father submits that this location is 33 km from his home and 16 km from the mother’s home; and
·Option 3: Suburb M McDonald's playground Suburb M Road, Suburb M – the father submits that this location is 35 km from his home and 10 km from the mother’s home.
Mother
The mother proposes the retention of the current contact centre given the child’s familiarity with it. The mother also submits that this centre is affordable as it only costs $128 for each party per month.
That said, the mother proposes that changeovers could largely occur at the child’s day care centre (being the N Early Learning Centre located at the corner of O Street, Suburb P) if X’s day care days are changed. I note that the mother has indicated to the father that she is willing to change X’s day care days (currently Tuesday and Thursdays) to Thursday, Friday and Monday. If that change occurred, the mother argues that it would eliminate the need for a contact centre, save for when the child is sick and unable to attend day care.
The mother’s alternate location is Suburb Q Library located R Street, Suburb S. This location is also approximately 46 km from the father’s residence but closer to the mother’s residence. I note that the father’s email suggests that he has rejected this location for changeover.[2]
[2] Father’s correspondence dated 9 November 2020 states: “With respect to the Suburb Q Library, it is not a convenient location and still requires X to spend considerable time travelling”.
ICL
The Court notes that in her draft Minute of final proposed orders, the ICL proposed that changeovers not occurring at the child’s day care centre or school occur at G Contact Centre located at Suburb T. This location is approximately 32 km from the father’s residence and 17 km from the mother’s residence.
The mother opposes this location for the following reasons:
·the cost she asserts is approximately $500 per month for each party;
·the location requires the mother to drive through the Brisbane CBD which given the timings of the changeovers, would mean that travel time would be extended due to peak hour traffic;
·the current contact centre provides familiarity for the child, working towards changeovers to occur at the N Early Learning Centre in the future; and
·the mother has a costs order to pay (relevant to her recent failed interim application to have the ICL removed).
The father did not address this possible location for changeover in his email. That said, I note that the father proposes this very location in his final Minute of proposed orders.
Discussion and findings
Legislative Requirements
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in section 64B of the Act, and provide for outcomes which includes the issue relevant to this dispute, namely the time and circumstances that a child spends with the non‑primary carer parent.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order, the Court must regard the best interests of the child as the paramount consideration. What is considered to be in the best interests of a child in parenting matters of course depends on the particular circumstances of the case, in light of the available evidence. But that said, to determine the best interests of the child, the Court must consider the available evidence and submissions, in light of the relevant statutory criteria, in particular, the primary and secondary considerations in section 60CC of the Act.
Discussion
There are no specific provisions in the Act that deal with the location for changeover. Clearly, any changeover location should be in the best interests of the child and arguably fair and reasonable to both parties.
If a Court finds that supervised changeover is warranted, then it could occur at a contact centre or be otherwise facilitated by a third party, professional or otherwise. Fees are usually paid by the parties to use a professional supervised changeover centre or service.
Issues about changeover location generally become less problematic when the parties use the child’s day centre, pre-school or school for changeovers. Restraints can be imposed to ensure that the other party is not present when the child is collected from, or returned to, the relevant day care centre or school.
In this case, the Court notes that the parties have being using a contact centre, at their expense, for some time. That said, it is also clear that X is likely to be attending more days at a day care centre/pre-school in the lead up to her transition to school in 2023. If changeovers increasingly occur at the child’s day care centre (and later, pre-school and school), then I reiterate that the issues about the changeover location becomes less problematic. Obviously, an alternate changeover location is needed on days that the child does not attend day care/school. Such an alternate changeover location should be child-friendly and, where appropriate, take into account any safety concerns raised by either party.
Findings
Having considered the respective proposals and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and determines as follows.
First, I am satisfied and find that changeovers should continue, when applicable, to occur at X’s day care centre.
Second, I am satisfied and find that changeovers that do not occur at X’s day care centre should occur at a contact centre unless otherwise agreed in writing. Given the circumstances presented by this case, I am satisfied that, failing agreement to the contrary, such changeovers should occur at the G Contact Centre located at Suburb T. The parties will equally be responsible for the costs of using this Centre and each party will have seven (7) days from the date of the relevant interim orders to contact this Centre to facilitate intake. Each party will also be responsible for the costs of their respective intake with this Centre. The Court would encourage the parties to consider alternatives to using a contact centre. The mother may wish to consider having a third party attend changeover on her behalf thus eliminating any possibility that she would come into contact with the father. Alternatively, the father may wish to consider having a third party attend changeover on his behalf.
Third, pending the G Contact Centre becoming available for supervised changeovers, the parties shall continue to use the C Contact Centre located at Suburb C.
Fourth, once the new Centre becomes available, on any days that the new Centre is not open or not operating for whatever reason on any relevant day, changeovers are to occur at the Suburb H Police Station carpark located at J Street, Suburb H.
I find that these changes are in X’s best interests.
Conclusion
The Court’s findings have now been stated.
There will be Orders of the Court to reflect these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Associate:
Date: 11 November 2020
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