HUBERT & MOTTIE
[2009] FamCA 1295
•15 December 2009
FAMILY COURT OF AUSTRALIA
| HUBERT & MOTTIE | [2009] FamCA 1295 |
| FAMILY LAW – CHILDREN – With whom the children live – Whether the children will board at school – Who will bear the cost of boarding – How the children are to spend time together – The wishes of the children FAMILY LAW – JURISDICTION – Functus officio – No current applications outstanding – Application dismissed |
| APPLICANT: | Mr Hubert |
| RESPONDENT: | Ms Mottie |
| FILE NUMBER: | BRF | 3013 | of | 2006 |
| DATE DELIVERED: | 15 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 30-31 March 2009 and 25 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge of Counsel, appearing for the Applicant Father |
| SOLICITOR FOR THE APPLICANT: | Barry & Nilsson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Hogan of Counsel, appearing for the Respondent Mother |
| SOLICITOR FOR THE RESPONDENT: | Murdoch Lawyers |
Orders
IT IS ORDERED:
That the child, R born … March 1996 (R), live with the Father and attend The T School (T School) as a weekly boarder.
That until the commencement of the first school term in 2013, the child, S born … July 1999 (S), live with the Mother.
From the commencement of the first school term in 2013 the child S, live with the Father and attend T School as a weekly boarder.
Weekend time spent with each parent
The intent of these Orders is that the children, R and S spend as much time together on weekends and school holidays as possible.
The children are to spend time with each parent as may be mutually agreed by them, but in the event of failure to agree then in accordance with the terms of this Order.
Unless otherwise agreed between the parties:
(a) until 2013 – S:
(i)where the children have spent the second half of the school holiday period with their mother, S is to spend the first and third weekends of a four week cycle with the Father;
(ii)where the children have spent the first half of the school holiday period with their mother, S is to spend the second and fourth weekends of a four week cycle with their father;
(iii)the start of each school term is to commence a new four week cycle.
(b) until 2013 – R:
(i)R is to spend one weekend in four at the Mother’s residence provided such weekend time is when S is also residing at the home;
(ii)R is to spend one further weekend in the four week cycle during school term in the Gold Coast region with the Mother providing S is in her care at that time;
(c) post 2013:
(i)in a four week period R and S are to spend one weekend with the Mother at her home and one weekend with the Mother in the Gold Coast area, such weekends to be selected by the Mother, in writing, at the commencement of the school term.
Changeovers where the Children are travelling by a car for the purposes of spending any time with a parent
The changeover is to be at the W Post Office or such other venue as the parties may mutually agree from time to time.
Changeover travel by aircraft
In the event the Father elects to travel by aircraft for the purpose of delivering, collecting or returning the children pursuant to these Orders, unless otherwise agreed the Mother is to ensure she delivers, collects or returns the children to/from the Goondiwindi airport.
Costs of travel by aircraft
For each period of air travel the Mother is to be responsible for one half of the fuel costs expended by the Father for such flight as evidenced by fuel invoices to be produced by the Father.
Phone communication
The children are at liberty to phone or email either parent at any time.
Where one child or both children are in the Father’s residence the Mother may phone on Sunday, Tuesdays or Thursdays between 6.30 pm and 7.30 pm for the purpose of speaking to the child or children.
Where one child or both children are in the Mother’s residence the Father may phone on Mondays, Wednesdays or Fridays between 6.30 pm and 7.30 pm for the purpose of speaking to the child or children.
Phone calls by the parents to the respective households pursuant to these Orders shall be by landline only.
School holiday periods
The children are to spend time with the Mother for the second half of all school holiday periods in 2010 and alternate years thereafter.
The children are to spend time with the Mother for the first half of all school holiday periods in 2011 and alternate years thereafter.
The children are to spend the balance of holiday periods with the Father.
Overseas travel
That both parents facilitate renewal of the children’s passports and the children are free to travel internationally with either parent whilst in their care.
Unless otherwise agreed 40 days prior to any such overseas travel, the travelling parent is to provide to the other parent a full itinerary of the travel arrangements detailing to the fullest extent possible the address in each city that the child/children will be staying at and the means by which the child or children can be contacted.
Education – Costs of education
The parties are to share equally all costs of the children’s education at T School and M School as invoiced by those schools.
Parental Responsibility
That the Father and Mother have sole responsibility for making decisions concerning the child or children during the time that the child or children live with each of them in relation to issues that are not major long term issues.
Subject to paragraph (19) hereof, the Mother and Father have equal shared parental responsibility for the children including jointly sharing all duties and responsibilities for making decisions concerning the major long term issues about the care, welfare and development of the children.
Property Settlement
The Wife’s application in a case dated 2 October 2009 is dismissed.
The Husband’s response to an application in a case dated 16 October 2009 is dismissed.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Hubert & Mottie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF3013/2006
| MR HUBERT |
Applicant
And
| MS MOTTIE |
Respondent
REASONS FOR JUDGMENT
The parties are the parents of three boys H born July 1992, R born March 1996 and S born July 1999.
It is common ground, having regard to his age, no order is sought in relation to H. He has recently completed his secondary education. Next year he will either attend University or take a gap year.
Throughout 2009 R attended T School as a weekly boarder in grade 8. On weekends he resided primarily with his father in a rented residence in Northern New South Wales. S resided with his mother at the former matrimonial home, a farming property in southern Queensland. He attended M Catholic Primary School in that town.
The matter proceeded over two days on children’s issues on 30 and 31 March 2009. The evidence was not completed at that time. The property settlement hearing commenced on 1 April 2009. The children’s issues were heard as a discrete issue as there were a number of other respondents in the property settlement proceedings.
Consent orders were made for property settlement on the 1 April 2009.
The children’s issues were adjourned being finally heard on 25 November 2009.
Evidence at March Hearing
Evidence in the applicant’s case was taken from the father himself (Mr Hubert) and his partner Ms C. In the respondent’s case the mother (Ms Mottie) gave evidence together with Mr E, the House Master at T School who gave his evidence by telephone link up as did Mr N the Principal of M Catholic Primary School.
The parties had originally commissioned a report by Ms Q. After the report was received the father objected to Ms Q. Ultimately she was not called as a witness. A further report was commissioned to be prepared by Mr G. He attended for home visits at the respective properties. His report is annexed to his affidavit filed on 8 October 2009.
On the adjourned date of hearing there was limited updating cross examination of the parties themselves together with the evidence of Mr G.
The parents present as intelligent, well educated, caring individuals with many positive qualities. It is beyond doubt they each love their children and such love is reciprocated.
It is also readily apparent that unfortunately a high level of conflict exists between the parties with the consequence that communication between them is poor.
It is also apparent the children have been caught in the parental cross fire and have suffered as a result.
Orders Sought by the applicant father
“1.That the child [R] born […] March 1996 (“[R]”) live with the father.
2.That until the commencement of the first school term in 2012, the child [S] born […] July 1999 (“[S]”) live with the mother.
3.That from the commencement of the first school term in 2012, the child [S] born […] July 1999 (“[S]”) live with the father.
4.On school holiday periods in each year:
4.1In odd numbered years [S] and [R] will spend the first half of all school holiday periods with the mother in odd years and the second half of school holiday periods with the father;
4.2In odd numbered years [S] and [R] will spend the first half of all school holiday periods with the mother in odd years and the second half of school holiday periods with the father;
4.3For the purposes of these orders, school holiday periods shall be deemed to be the period of holidays set by the school that [S] is attending;
4.4For school holiday periods that are an even number of weeks in duration, handover shall occur at 12 noon on the Sunday of the weekend in the middle of that period;
4.5For school holiday periods that are an odd number of weeks in duration, handover shall occur 12 noon on the Wednesday of the week that is in the middle of that period;
4.6The four week cycles referred to in orders 5 and 6 below shall be suspended during any school holiday period.
5.That until the commencement of the first school term in 2012, [S] shall spend the first and third weekends in each four week period with the father. If any such weekend is a long weekend, or has a pupil free day at either end of it, then [S] shall spend the entirety of the long weekend or the pupil free day as the case may be, with the father.
6.From the commencement of the first school term in 2012, [R] and [S] shall spend the second weekend in each four week period with the mother. If any such weekend is a long weekend, or has a pupil free day at either end of it, then [S] and [R] shall spend the entirety of the long weekend or the pupil free day as the case may be, with the mother.
7.Handovers shall occur at the [P Service Station], on the western side of Cunninghams Gap, unless otherwise agreed in writing.
8.For purposes of interpretation in relation to weekends and long weekends, these will be taken to commence at 3.00 pm (immediately after the last day of school) and to finish at 8.00 pm on the evening prior to recommencement of school.
9.Handover shall occur at 5.30 pm after school finishes and at 5.30 pm on the last day of the weekend or long weekend.
10.That each parent shall communicate with the children by email at all reasonable times.
11.During those periods when either [S] or [R] are in the care of the mother, the father shall be at liberty to contact [S] and/or [R] by telephone each Monday, Wednesday and Friday between 6.00 pm and 7.00 pm, (on either the mothers (sic) land line telephone or the mother’s mobile telephone). The mother shall facilitate those calls.
12.During those periods when either [S] or [R] are in the care of the father, the mother shall be at liberty to contact [S] and/or [R] by telephone (on either the father’s land line, the father’s mobile telephone or either child’s mobile telephone) each Sunday, Tuesday and Thursday between 6.00 pm and 7.00 pm. The father shall facilitate those calls.
13.That the children be at liberty to telephone and email the parent with whom the children are not living or spending time with, at all reasonable times.
14.That the mother and father have sole responsibility for making decisions concerning the children during the time that the children live with each of them in relation to issues that are not major long term issues.
15.That the mother and father have equal shared responsibility for the children, including jointly sharing all duties and responsibilities for making decisions concerning the major long term issues about the care, welfare and development of the children.
16.Unless otherwise agreed in writing, [S] shall attend the [M] Catholic School in [southern Queensland] for years 5 and 6 of his primary school education.
17.Unless otherwise agreed in writing [S] shall attend [T] School at [T] for the commencement of the first term of year 7 of his primary school education.
18.Unless otherwise agreed in writing, [S] and [R] shall attend their respective schools as day students from the commencement of the first school term in 2010.
19.That the parties equally share the costs of the children’s tuition at [T] School and [M School] as invoiced by those schools and the father and mother authorise the schools to issue invoices to each of them for 50% of each fee.
20.That each parent bare (sic) responsibility for the day to day costs of the children while residing with them.
21.That the mother pays for any costs associated with any of the children’s boarding expenses.
22.That the children be permitted to travel by either registered vehicle or aircraft provided that the driver/pilot is appropriately licensed to drive/fly the vehicle or aircraft and the other parent is advised of the travel plans, including the name of the driver/pilot.
23.That both parents facilitate renewal of the children’s passports and that all children are free to travel internationally with either parent whilst in their care. If requested, the travelling parent will show the other parent a copy of the children’s return travel ticket.”
Orders Sought by the respondent mother
“ Lives With:
1.That the child [R] born […] March 1996 (“[R]”) live with the father and attend [T] School as a weekly boarder.
2.That the child [S] born […] July 1999 (“[S]”) live with the mother and attend [M School].
Spends Time With:
3.That the children spend:
3.1equal time with the father and mother during the children’s Easter/April school holidays (on the basis that they spend the first half of school holiday periods with the mother in 2009 and alternate years thereafter);
3.2upon [S] commencing at [T School] in 2013, two-thirds of the children’s June/July school holidays with the mother, and the balance with the father (on the basis that they spend the first period of the school holidays with the mother in 2009 and alternate years thereafter), and pending [S] commencing at [T] School, that the children spend half of each of the [M] School June/July holidays with the mother and the balance with the father, and that [R] spend any additional [T School] June/July school holidays which are in excess of the [M] School June/July holidays, with the mother;
3.3equal time with the father and mother during the children’s September school holidays (on the basis that they spend the first half of school holiday periods with the mother in 2009 and alternate years thereafter); and
3.4five out of eight weeks of the children’s Christmas/December-January school holidays with the mother, and the balance with the father (on the basis that they spend the first period of the school holidays with the mother in 2009 and alternate years there).
4.That during the 2009 school term [H] and [R] spend the second weekend in each four week period with the mother provided that the visits (including travelling time) do not interfere with the child’s school and extra curricular activities.
5.That during school terms commencing in 2009 [S] spend the fourth weekend in each four week period with the father provided that the visits (including travelling time) do not interfere with the child’s school and extra curricular activities.
6.That during school terms commencing in 2010 [R] spend the second weekend in each four week period with the mother provided that the visits (including travelling time) do not interfere with the child’s school and extra curricular activities.
7.That during school terms commencing 2012, [R] and [S] spend the second weekend in each four week period with the mother provided that the visits (including travelling time) do not interfere with the children’s school and extra curricular activities.
8.That the father be at liberty to spend time with the children in the [southern Queensland] area in the event that the children are unable to travel to the father’s residence for weekend visits in accordance with the above orders.
9.That the mother be at liberty to spend time with the children in the Gold Coast area in the event that the children are unable to travel to the mother’s residence for weekend visits in accordance with the above orders, or in the event that [H], [R] (or [S] from 2013) has a school, boarding house or sporting activity and the mother is travelling to the Gold Coast for attendance at such an event.
Communicates With:
10.That each parent be at liberty to communicate by telephone and email at all reasonable times when the children are living with or spending time with the other parent.
11.That the children be at liberty to telephone and email the parent with whom the children are not living or spending time with, should the children request to do so.
Parental Responsibility
12.That the mother and father have sole responsibility for making decisions concerning the children during the time that the children live with each of them in relation to issues that are not major long term issues.
13.That the mother and father have equal shared parental responsibility for the children, including jointly sharing all duties and responsibilities for making decisions concerning the major long term issues about the care, welfare and development of the children.
Specific Issues
14.That the child [S] complete his primary education to the end of grade seven (7) at [M School].
15.That, unless otherwise agreed by the parties, the children attend [T School] as weekly boarders from grade 8 to grade 12.
16.That in the event the father relocates from a commutable distance to [T School] the children attend [T] School as full time boarders.
17.That the parties equally share the costs of the children’s education at [T School] and [M School] as invoiced by those schools and the father and mother authorise the schools to issue invoices to each of them for 50% of each fee.
18.That the children be permitted to travel by either registered vehicle or aircraft provided that the driver/pilot is appropriately licensed to drive/fly the vehicle or aircraft and the other parent is advised of the travel plans, including the name of the driver/pilot.
Costs
19.That the husband pay the wife’s costs of and incidental to these proceedings.”
It will be seen from a perusal of the respective orders the parties are in agreement on a number of important issues.
By way of example, the father had originally sought that S live with him from the start of the 2010 year but now accepts that he should continue at
M School for the next two years. The outstanding issue is whether he should commence at T School in grade 7 or grade 8.
Issues in Dispute
In summary form the issues which remain to be determined are:
· Whether S is to commence at T School in grade 7 or grade 8.
· Whether R (and S as from the time he commences at T School) are to attend as day boys or weekly boarders.
· At times when the children are to spend time with the other parent where is an appropriate handover site.
· Orders for telephone communication.
· Who should bear the costs of the boarding school as distinct from the school fees if the children are to attend as boarders.
· The frequency of weekend travel for S until he attends T School.
· Whether the holiday periods should be split equally.
· The issue of overseas travel – whether there should be any restrictions or conditions placed on same.
In relation to property settlement issues the father by the consent orders was to pay the mother $300,000. He has paid her approximately $240,000 and asserts a set-off as a result of monies owed to him by the Hubert Family Trust. The issue is whether the Court has jurisdiction to determine such a claim and if it has whether the husband is entitled to the set-off.
Whether S Should Commence Attendance at T School In Grade 7 or Grade 8?
S’s eldest brother commenced at T School in grade 8 but that was at a time prior to separation when the family resided on the southern Queensland property. R also commenced at T School in grade 8 this year as a weekly boarder.
In his report (paragraph 52) Mr G records:
“52.- -
If able to talk to the Court, [S] would say, “Definitely here [southern Queensland], I have friends here. I go to school here… I live here… like my school…rugby team…the whole farm, it’s pretty good and there’s lots more freedom than in town.” [S] says he “definitely” sees himself going to [T School] as a “Grade 8” boarder, like his brothers, explaining he has “checked it out” when there.”
At paragraph 55 Mr G observes:
“55.[S] indicates that he wants to maintain care and relationship arrangements as they currently stand where he lives with his mother and regularly sees his father on weekends and on holidays. He adds, from his perception, he has “not very long” out of school time with his mother, the boy says he prefers his rendered thoughts and feelings not be shared with his parents and indicates that neither tried to influence what he said in the FR. He reiterates, “I want to go to school in [southern Queensland]…my friends are there. I don’t want to go to school somewhere else…I think Dad wants me to live here and go to school…spending a bit more time here [Gold Coast] is OK but I don’t…want to live here. I like the farm…feels more like home and you can do what you want to do”, with animals and exploring. Asked, with 1 being easy and 10 the hardest, what number would measure how hard it would be to leave the farm and his mother, [S] indicates, “9 and a half or 9 and three quarters.””
At paragraph 76 the report writer concludes:
“76. - -
The opinion is offered that [S] remains primarily attached to and dependent on [the mother] and, while he no doubt positively identifies with [the father] as his father, same gender parent and other significant carer, his attachment to and dependence on him is suggested to be significantly less than that perceived or experienced with [the mother].”
This report was written at a time when the father was proposing S relocate to the Gold Coast area in the immediate future. I assume that after reading
Mr G’s report, and taking other factors into account, he, to his credit, resiled from his original stance and agreed to S remaining at M School for the next 2 years.
I am of the view S should commence at T School in grade 8.
There was speculation whether grade 7 would soon be integrated into the secondary school. On the available evidence I am unable to make a finding in that regard but do not consider it significant to do so.
I accept there is force in the submission that S being a senior student at a smaller school in grade 7 would be in a position of leadership at the school and he would learn from that experience.
A decision in these terms is supported by Mr G and reflects the wishes of the child himself which wishes were recorded whilst he was staying at his Father’s house. It is in conformity with what his brothers did. As the youngest of three I expect that S would want to follow as far as possible exactly in his brothers’ footsteps.
Whether R (And S) Are To Be Day Boys or Weekly Boarders?
The determination of this issue most critically affects R. In view of the ruling given above it will not impact on S until 2013.
At paragraph 75 of Mr G’s report he records:
“75.The report is unable to concur with [the father’s] view that [R] has left the mother’s home, joined [T School] as boarding student and would now seamlessly transfer to and accept his and Ms [C’s] day-day care where the [father’s] house is equivalent to the home and relationship experiences and dynamics in which he has been grounded. The opinion is offered that [R] would be significantly challenged to forfeit his place at [T School Boarding House], to be asked to emotionally separate himself from his identified home and carer and to, instead, become a full-time member of the [father’s] house, and more so where this took place without [S] and or [H] sharing and or diluting the experience.”
I gained the distinct impression the boarding school environment offers a sanctuary to R away from the conflict of his parents.
The report perceptively notes the extent to which each parent directly and indirectly involves the children in their conflict
I fully accept no criticism could be made of the father’s home environment. I am satisfied all the children’s material needs would be met in a sensitive, supportive and nurturing way, as would be the case if the mother was residing in the same geographical area.
For R to live with his father would, for him, place him back in the firing line. He would perceive himself as disloyal to his mother.
Clearly the father has a degree of insight into this aspect. At paragraph 23 of Mr G’s report he notes:
“23. - -
He [the father] concedes that he has pondered whether or not [the Boarding House] is “a neutral place” for [H] and [R] in the parenting conflict, describing [H] as being a boy who “lacks empathy” and can be “uncaring” to [S] or others and is allegedly “aggressive” to him and [Ms C] and defensive of [the mother], “if he feels anything is said that is horrible to [the mother]”. [R] is said to be a peacemaker, trying to please and placate others. - - ”
At paragraph 46 of his report Mr G records:
“46. - -
The boy [R] says the hard thing for him about the separation is, “I’m split between 2 parents. You live with one and not the other and go to the other place” while adding the current care arrangement, boarding at [T School] and time with his father and mother is, “pretty good…I really like boarding, the way it is now…close to everything [at school] it’s like a major sleepover.” There is no person in his family [R] says he worries about however he discloses sharing his wishes with his mother but not with his father, as “I’m worried I’ll upset him. He wants me to be a day boy…thinks I’d be better off around him and [Ms C].””
At paragraph 47
“47.- -
If able to talk to Court, [R] would say, “I like it how it is now. I’m a boarder and I spend weekends with Dad and long weekends with Mum. I like the holidays split”, spending some time with both and at the farm and the beach. If he had magic to make wishes come true or could use magic to stop worrying about something or a sad thing [R] would wish to, “have lots of money…a house to live in when I get older…a farm” and, I’d stop worrying if I say one thing to one parent…making the other parent sad.””
On balance I am of the view it is in R’s best interests to remain as a weekly boarder. A determination in these terms reflects the strongly held wishes of R and has the support of the report writer.
I was impressed with the evidence of Mr E the Boarding House Master. He noted that there were about 600 day students and 200 boarders at the school. There are over fifty boarders in the Boarding House with 40% of them being weekly boarders and the balance full time boarders. A number of the boarders come from the southern Queensland district.
Mr E confirmed that in his first year as a boarder R fitted in extremely well. I accept that there is a family attachment to the Boarding House with H completing his secondary education as a member of that House.
I accept there are day students who travel a distance equal to or greater than the distance from the father’s residence to the school. I expect the driving time is between 45 – 60 minutes depending on traffic conditions. There is force in the submissions made on behalf of the father that a home environment would normally be regarded as superior to that offered by a boarding school, albeit a modern prestigious school such as T School.
Whether R is motivated in his wishes by a desire not to be seen as disloyal to his mother or whether he sees boarding school life as a form of escape from the conflict between his parents I am unable to say, but either way his wishes have validity and deserve to be respected. I expect his mother has a strong influence on him. The evidence indicates that he phones her every day from school.
S as a Boarder in 2013
The father’s evidence is he expects his partner and himself will build a home in the same geographical region as at present but about 10 minutes closer in driving time to the school.
S’s statements to the report writer indicate that when he attends T School in 2013 he would prefer to do so as a boarder. I expect it is difficult for a ten year old to project three years into the future.
At paragraphs 81 and 85 of the report it is noted:
“81.As matters currently stand the FR is unable to endorse [the father’s] applications and aspirations to have day to day care of [R] and [S] or the legal process and parental conflict through which this is being managed. It is possible that, if not now at a future time, [R] may ask for or accept a transfer from living with his mother, being based [in Southern Queensland] and boarding at [T School] and living with his father and attending [T School] as a day boy. At the present time there is no indication this is the case. It is also possible that [S] might, at a future point in time when he is older, ask for, seemingly unlikely, or accept the transfer from living with his mother at [southern Queensland] and attending [M] Catholic School and transferring to [T School] and to his father.
85.The FR is challenged to offer recommendations other than [S] continue to live with [the mother] and attend [M] Catholic School to grade 7 presumably joining [R] as a weekly [Boarding] House boarder from grade 8 and having regular weekends and half the school holidays with his father.”
I propose to adopt the recommendations of the report writer and direct that S attend T School as a boarder as from 2013 unless the parties otherwise agree. It is to be hoped that if there is any compelling reason why it would be preferable for R and/or S to attend as day students the parents would put aside their personal views and make a decision in the best interests of the boys.
Changeover Site
The parents’ attitude to this issue bordered on the obsessional. As between the warring parties the father is fixated with a view that everything should be equal. The mother’s attitude becomes quite confrontational if she perceives herself being inconvenienced by the father’s fixation on equality.
In her affidavit sworn 20 November 2009 and filed 23 November 2009, paragraphs 4 to 7 and paragraphs, 11, 12, 13 and 14 the wife deposes:
“4.I do not agree to ‘Cunninghams Gap’ being nominated as the changeover location. I propose instead that the location be [W].
5.The distance between my residence at [southern Queensland] and [the father’s] residence at [the Gold Coast], is approximately 424km and takes approximately four and a half hours driving time.
6.In the past, save for when one parent collects or returns the children from [T School], [the father] and I have met to exchange the children at a location which is between our residences. The usual changeover location has been [W], which is approximately half-way between our residences. Alternatively, if [the father] is staying at his family’s property […] we meet at […] for the change-over, which is approximately half-way between my residence and his family’s property.
7.On the weekends when [S] is due to spend time with [the father] at the Coast we meet for the changeover at 5.30 pm. In order to make it to [W] by 5.30 pm, I finish work at 2.00 pm, drive into [southern Queensland] to collect [S] from school, then backtrack to […] to get onto the highway. This adds an extra hour to the trip.
11.The most direct route between [southern Queensland] and the coast is via the Cunningham Highway. Both Cunninghams Gap and [W] are located on the Cunningham Highway, and are both approximately equal distances between our residences. [W] is a town. ‘Cunningham’s Gap’ is merely a section of the Cunningham Highway. There is approximately 50kms separating the two locations. Attached hereto and marked as annexure “LM-1” is a map of the area identifying the location of […] (my residence), [the Gold Coast] ([the father’s] residence), the [T School], [W] and Cunningham’s Gap, and the road travelled between our residences.
12.I travel past the Cunningham’s Gap area when commuting between my property and the coast. The area is a section of the Cunningham Highway with a single petrol station on the side of the highway. There are no other shops or amenities. Attached hereto and marked as annexure “LM-2” is a map identifying the location on the Cunningham Highway that [the father] proposes for the changeover. Drivers do not typically stop at this location if they can stop at [W]. [The father] and I have met at this location once before for the changeover and it was raining. We got saturated as there is no cover for two cars. I consider Cunningham’s Gap to be an isolated location. I do not feel comfortable or safe stopping in this area to exchange the children. When commuting all the way to the coast, I do not stop at Cunninghams Gap. I usually take a break in [W].
13.[W] is a small town. It has a hospital, hotels and accommodation. It is busy with people and has various shops, clean bathroom facilities, and eateries. I feel safe stopping in [W]. When I drive the children to or from the coast, I have stopped in [W] for a break and to arrange a meal for the children. We also have friends there is necessary (sic). There are various places that I can take the children for a meal to break up the drive. I am unable to do this at the petrol station at Cunninghams Gap. Attached hereto and marked as annexure “LM-3” is a map of [W].
14.I therefore propose that any changeover occur in [W] at a public location. I propose that the public location be the […] Service Station or the […] Restaurant.”
In response the father in his affidavit sworn 24 November 2009 and filed by leave at the hearing, deposes in paragraphs 3 (a) – (h) in the following terms:
“3. With respect to [the mother’s] affidavit, I say as follows:
a.To date I have only agreed to use [W] as an exchange point because, in the absence of court orders, [the mother] has refused to exchange the boys at a more equitable location. On one occasion when I requested that we meet at the [petrol station] at Cunningham’s Gap, [the mother] simply left the boys in [W] with a friend and advised me that “if I wanted them – that’s where they were”.
b.The distance between the my (sic) residence at [the Gold Coast] and [the mother’s] residence at [southern Queensland] is 414 km following the Logan motorway, which is the recommended route on Google Maps and the route preferred by all the parents I know who travel between [southern Queensland] and the Gold Coast. Attached hereto and marked as Annexure RJGH-1 is a map of this fastest and most common route from [the Gold Coast] to [southern Queensland].
c.The route described in [the mother’s] affidavit as 424 km and shown in her Annexure 1, actually starts at […] New South Wales rather than the property at [southern Queensland]. This route (via […]) is 29 km shorter, but is very winding and, therefore, slower. [S] suffers from a (sic) car sickness which makes driving on winding and mountainous roads a problem. Attached hereto and marked as Annexure RJGH-2 is a map showing details of the [southern Queensland] end of the route described in Annexure RJGH-1.
d. The distance from my residence to my proposed exchange point at [Cunningham’s Gap] is 215 km. The distance from [the mother’s] residence to this point is 199 km. Attached hereto and marked as Annexure RJGH-3 is a map of the fastest and most common route from [the Gold Coast] to [Cunningham’s Gap].
e.The [petrol station] has a large covered area over the fuel pumps, provides sit-down and take away meals and has 24-hour security camera surveillance. Opening hours are 7 a.m. to 9 p.m. weekdays and 8 a.m. to 5 p.m. on Saturday and Sunday.
f.The distance from my residence to [U] (a small township on the eastern side of Cunningham’s Gap), is 187 km and the distance from [the mother’s] residence to [U] is 227 km. Attached hereto and marked as Annexure RJGH-4 is a map of route from [the Gold Coast] to [U].
g.The distance from my residence to [W] (the exchange point proposed by [the mother]) is 237 km and the distance from [the mother’s] residence to [W] is 177 km which is an additional 120 km driving for me each trip or an additional 240 km each weekend. Attached hereto and marked as Annexure RJGH-5 is a map of route from [the Gold Coast] to [W].
h.An alternative option would be to exchange the children at [U].”
I accept the mother’s account that on most occasions on a Friday she has to travel to collect S from school which involves an additional one hour’s travel for her. This is not relevant when the changeover occurs on a non-school day.
On balance I propose to adopt W as the changeover point for the reasons advanced by the mother’s counsel. W has historically been the changeover site. To my mind it is a safer venue, if there are any problems such as unexpected delay by either parent. W would offer more facilities to the party kept waiting.
One obvious solution to the impasse is for the father to fly to southern Queensland to collect the children. … Unfortunately he requires, in negotiations, half of his overall costs to be paid by the wife, not simply half the fuel costs. He indicated that the wife refused to make any contribution to his costs in this regard.
The plane travel would appear to be much more efficient although where the husband has to collect R from school it would involve him driving the
45 – 60 minutes from the Gold Coast to T and then back to the airport. Although it was not sought by either party I propose to put in place an order that in the event the father elects to fly to collect or return the children on any occasion the mother is to pay half of the fuel costs expended on the flight as certified by the husband. I will make an order that the mother is to attend at the Goondiwindi airport to collect or return the children on any such occasion.
Telephone Communication
I accept there is validity in the father’s complaint if as he asserts the mother telephones R on weekends at the Gold Coast residence five or six times per day. As I understand the submissions the parties are largely in agreement on arrangements for telephone communication, namely the children can telephone the absent parent anytime they wish. If the absent parent wishes to telephone a child at the other parent’s home it is to be by land line. In the father’s case he is at liberty to telephone between 6.30 pm and 7.30 pm, Monday, Wednesdays and Fridays. The mother can telephone his home, Sunday, Tuesday and Thursday.
I have some difficulty understanding all of the configurations which could occur such as:
·S at southern Queensland, R at father’s for weekend only.
·Both boys with father for weekend or holidays.
·Both boys with mother for weekend or holidays.
Who Should Bear the Cost of Boarding School?
The parties have always been in agreement that the three boys should be educated at T School. The eldest child has already completed his education at this school. The second child has now completed the first year of his five years at the school.
Where the parties cannot agree on whether the children should attend as boarders or day students and the Court has ruled that they should attend as weekly boarders I see no basis for punishing the mother financially by making her solely responsible for the boarding school component of the fees.
In the marriage of Mee v Ferguson (1986) FLC 91-716; 10 Fam LR 971 the Court noted:
“Where the non-custodian has agreed to the child attending such a school that person is liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to continue to do so.”
As I understand it the father has two objections to paying the fees, firstly it is at the mother’s insistence that the children are attending the boarding school and secondly, he does not have the capacity to pay. Where the parties are unable to agree and have reverted to litigation it is appropriate all other aspects being equal, that the costs of the education be shared equally if the Court rules in favour of the children attending as weekly boarders.
Whether the Husband Has The Capacity to Contribute to the Boarding School Fees?
When the property settlement orders were made each of the parties was represented by Senior Counsel. I was informed that the settlement reflected a degree of commercial pragmatism but pursuant to the settlement the wife was to receive approximately 35% of the net assets.
As a result of that settlement the wife received free of encumbrance the properties in New South Wales together with certain water licences. In addition she received the assets of the Hubert Family Trust and a lump sum cash payment of $300,000 by the husband. The New South Wales property by agreement was valued at $1.6 million and the water licences at $246,000.
In the event the matter proceeded to a hearing the evidence would have in large measure focused on a Memorandum of Understanding of a meeting between the husband and his siblings of 7 January 2003, an addendum to that Memorandum of Understanding dated 10 February 2005 and a purported agreement dated 25 November 2008 between the same parties.
On my calculations what the wife received as enumerated above including the Hubert Family Trust valued at $170,000 totals something in excess of
$2.3 million. If this represents 35% of the net assets I am satisfied the husband’s 65% gives him access to significant assets indeed.
The husband’s financial statement filed 19 March 2009 reveals property of
$1.56 million with liabilities of $317,509. The principal asset disclosed was a New South Wales property and an interest in the Hubert Pastoral Company valued at $396,000.
In a financial statement filed on 16 November 2009 the husband asserts he has property valued at $421,000 and liabilities of $603,000.
I do not accept the husband’s claims as to his financial position.
A person who is impecunious does not acquire a half interest in an aircraft valued at $52,000 as the husband recently did.
A person who is impecunious does not engage a Queens Counsel to act on his behalf for a five day property settlement hearing earlier this year.
A person who is impecunious does not propose sending two boys to T School as day students at a cost of $17,000 each yet claims he is indigent when it comes to contributing to the boarding school fees – estimated to be about $10,000 a year each.
I reject the husband’s claim he is unable to contribute to the boarding school fees and propose to order that all the costs of the boys’ education be shared equally.
Whether Holiday Times Should Be Equal?
The mother seeks orders as from 2013 she have the children for two thirds of the June/July holidays and five weeks out of eight weeks for the Christmas holidays. The orders are not framed precisely in these terms as they could be interpreted that she seeks five weeks out of eight weeks commencing immediately.
The rationale for the mother to have greater time with the children particularly after 2013 is the children will be spending a greater number of weekends with the father as weekly boarders at T School.
The mother makes no concession at the present time where S is to live with her all week and half weekends that the father spend increased holiday time with S to compensate.
Unless the parents otherwise agree I propose to order that for all school holiday periods the children are to spend the first half with the father in 2010 and each alternate year thereafter and the second half in 2011 and each alternate year thereafter. All other holiday times are to be spent with the mother.
I see no basis for discriminating school holidays between now and 2013 and the period post-2013.
It is common enough for orders to provide for the non-primary parent to have the children each alternate weekend and half holidays the obvious corollary to this is the primary parent who has the children for ten or eleven nights out of fourteen to continue to have half school holidays.
I am not convinced the mother should receive a greater share of holiday time. Such a proposal unnecessarily complicates arrangements and it is likely to be the source of yet more friction between the parties.
The Frequency For Weekend Travel for S Until He Attends T School and For Both Children Thereafter
At the present time the position of S spending time with the father is not governed by any orders. The last orders made on 3 April 2009 only made provision for time up until the June/July holidays of this year.
The father proposes S spend time with him for two weekends out of four with it being in the father’s discretion whether the time is spent in southern Queensland or the Gold Coast.
The mother proposes the father spend time with S for one weekend in four at the Gold Coast. She has no objection to the father spending time with S on one weekend in four in the southern Queensland district. It is common ground R is only to spend one weekend in four with the mother largely because of his sporting commitments.
Until 2013 I propose to order that S spend the first and third weekends of a four week cycle in school term with the father when the child has had the second half of the school holidays with the mother. When the child has had the second half of the school holidays with the father, the father is to have the second and fourth weekends of each four week cycle of school term. The start of each school term is to commence a new four week cycle.
I expect increasingly the boys will have sporting commitments and other obligations necessitating the parents foregoing their time or, heaven forbid, reaching a common sense agreement to alter the times to suit the children’s needs. Such a wind shift would be long overdue and I am confident would be greatly appreciated by the children themselves.
I will build a degree of flexibility into the orders to allow the parents to come to agreement to override the terms of the orders.
It is agreed R will only have one weekend in four at southern Queensland in a four week cycle. This makes appropriate allowance for his sporting commitments. R’s weekend in a four week cycle is to be at a time when S is in the mother’s residence.
From the commencement of the 2013 school year, S and R are to spend two weekends of a four week cycle with the mother, one weekend being in southern Queensland and the others in the Gold Coast area. The mother is to nominate in writing prior to the commencement of each term which weekends she intends to nominate to and where the time is to be spent.
Unless the father otherwise agrees, failure by the mother to notify in writing prior to the commencement of term the weekends selected will result in the father selecting the weekends the boys are to spend in the their mother pursuant to the order.
Weekend time is to be taken as from the cessation of school on Friday to the commencement of school on a Monday.
It makes greater sense for the period until 2013 the parties share the long weekends. After 2013 it would be more convenient for the boys to travel back to southern Queensland for the long weekends. It is too difficult to incorporate that aspect into these orders but the parties hopefully would take note of these observations.
I do not propose to define the half way mark of a school holiday period as sought by the father. Suffice to say once the parties have worked out a mechanism the same rule should apply in all situations.
I note that in a document which I have marked as being “the orders sought by Counsel for the husband” handed up on the morning of the further hearing being 25November 2009, paragraphs 4.1 and 4.2 are in identical terms. I have taken it that it is not intended and paragraph 4.2 would read – they would spend the second half of school holiday periods in odd numbered years with the mother.
Issue of Overseas Travel
As I understand the position the father sought an order that either parent could travel overseas with the children during his/her holiday time with them. He accepted that the travelling parent must provide a detailed itinerary to the other parent, say forty days prior to the dates of such travel with the itinerary to establish where the children could be contacted at any particular time.
If the non-travelling parent had concerns the travel posed some form of risk to the children the obligation was on that parent to bring the matter back to Court.
I understood the mother’s position to be that the non-travelling parent could veto the arrangements if he/she felt there was a risk to the children, leaving the travelling parent to apply to the Court to seek permission for the travel arrangements to occur.
Given the history of disharmony in this matter, on balance I would prefer the father’s proposal that the obligation be on the protesting parent to refer the matter back to Court establishing reasons why the travel should not take place.
Whether the Court Has Jurisdiction to Adjudicate on the Father’s Claims of a Set-Off
The wife asserts $60,000 remains unpaid pursuant to paragraph 14 of the consent orders for property settlement made 1 April 2009. The husband accepts this as so.
The property settlement orders provide that in the event the husband defaults on the payment to any extent the liability falls on his brother and sister.
For present purposes I accept the accounts of Hubert Family Trust reveal the debt to the husband is shown as a liability in the approximate amount claimed.
Paragraphs 3 to 5 of the consent orders are in the following terms:
“[Hubert] Family Trust
3.That the Husband, as principal under the Trust Deed of the [Hubert] Family Trust dated 16 September 1997, exercise power pursuant to paragraph 9.3(ii) to remove [F] Pty Ltd as trustee of the [Hubert] Family Trust and to appoint the Wife as trustee.
4.That upon compliance with Order 3, the Husband resign as principal of the [Hubert] Family Trust.
5.That the Wife indemnify the Husband in respect of any liability incurred by the Husband as a result of his involvement in the [Hubert] Family Trust.”
The above paragraphs are not greatly relevant insofar as the wife does not have to indemnify the husband. It is the husband who asserts that he is owed money by the Trust.
The only mechanism for altering the operation of orders for property is by invoking the terms of section 79A. There has been no attempt to adopt that approach by Counsel for the husband.
I accept the submission made by Counsel for the wife:
“That absent an application pursuant to section 79A or an invocation of the slip rule or some other established legal mechanism, once orders have been pronounced the Judge is functus officio.”
The only application before the Court at the present time is by the wife:
“1.Pursuant to the terms of paragraph 14 of the orders of 1 April 2009 the respondent husband pay to the applicant wife the balance sum of $60,548 with interest calculated from 1 July 2009 (“the said sum”) within seven (7) days and that if the husband does not pay the said sum within the prescribed period then the said sum shall be forthwith paid to the wife by the second respondent, [M Hubert] and the third respondent, [P Hubert].
2.That the respondent husband pay the applicant wife’s costs of and incidental to this application.”
The husband’s response seeks the following orders:
“1.That the husband and wife each respectively do all things necessary to effect in the December 2008 financial statements of [Hubert] Family Trust a forgiveness of debt owed by [Hubert] Family Trust to the husband in the sum of $60,548.
2.That the husband be restrained from taking any action of (sic) steps to recover from [Hubert] Family Trust the sum of $60,548.
3.Subject to orders 1 and 2 being satisfied the husband is deemed to have complied with order 14 of the orders made on 1 April 2009.
4.That the wife’s application in a case filed on 2 October 2009 be dismissed.
5.That the wife pay the husband the cost of and incidental to the application.”
In view of my ruling that I lack jurisdiction to adjudicate on the outstanding claim, it would follow the husband should either pay the outstanding amount or the liability to do so will attach to his brother and sister with consequential costs of enforcement.
I fail to see why I should make an order restraining the husband from taking any action or steps to recover the sum said to be owing as sought in paragraph 2 by the husband.
Even if I had jurisdiction to consider the issue I would not be amenable to the husband’s claims of a set-off.
The husband is to pay the $300,000 to the wife in her capacity as an individual litigant.
If she is now the trustee of a trust the beneficiaries of which are the parties themselves, such amount would be claimed against the wife in her capacity as trustee of the trust. The assets of the trust are cattle and certain other property as detailed in the material. The husband may or may not have a legitimate claim against the trust for the amount shown in the financial statements as a liability of the trust. That is a matter for another Court on another day.
For the moment for the reasons given I propose to dismiss the wife’s application as being unnecessary and the husband’s response on the grounds of lack of jurisdiction.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry
Associate:
Date: 15 December 2009
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Costs
-
Intention
0
0
0