KEADLE & MILDREN

[2020] FCCA 3436

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEADLE & MILDREN [2020] FCCA 3436

Catchwords:
FAMILY LAW – Parenting – issue of graduating of time for four (4) year old child with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC(2), (3)

Applicant: MR KEADLE

Respondent: MS MILDREN

File Number: LNC 114 of 2020

Judgment of: Judge McGuire

Hearing date: 10 December 2020

Date of Last Submission: 10 December 2020

Delivered at: Burnie

Delivered on: 18 December 2020

REPRESENTATION

Counsel for the Applicant: Ms K Mooney

Solicitors for the Applicant: Clarke & Gee

Counsel for the Respondent: Mr M Trezise

Solicitors for the Respondent:	Dobson Mitchell Allport
Counsel for the Independent Children's Lawyer:	Mr P Fitzgerald

Solicitors for the Independent Children's Lawyer: Legal Aid Commission of Tasmania

ORDERS

1. That that all extant parenting orders in respect of the child X born in 2016 (‘X’) be discharged.

2. That the father Mr Keadle and the mother, Ms Mildren have equal shared parental responsibility for X. 

3. That X live with the mother.

4. That X spend time and communicate with the father as follows:

   (a)From the date of these orders each alternate weekend from Friday at 4.00 p.m. until Sunday at 4.00 p.m.;

   (b)That in any event, during the Tasmanian gazetted first and second school term holidays in 2021 the father's weekend time with X be extended to a block of four nights being from the Thursday at 4.00 p.m. until the Monday at 4.00 p.m.;

   (c)That in any event during the Tasmanian gazetted third term school holidays in 2021 during the father's weekend for a block period of five nights being from the Thursday at 4.00 p.m. until the Tuesday at 4.00 p.m.;

   (d)That from the summer school holidays 2021/2022 and in each year thereafter X spend summer holiday time with the father on an alternate week basis with changeovers to occur on the Fridays at 4.00 p.m.;

   (e)That during the term school holidays from 2022 X spend half of each school holidays with the father as agreed between the parents but failing agreement from the first Friday at 4.00 p.m. until the second Saturday at 12 noon;

   (f)That in any event X spend time with the father in 2020 from 24 December at 12.00 noon until 26 December at 12.00 noon and in each alternate year thereafter but to spend time with the mother from 24 December at 12.00 noon until 26 December at 12.00 noon in 2021 and in each alternate year thereafter.

5. That for the purposes of school holiday time then X's fortnightly weekend time with the father be suspended during all such school holidays.

6. That changeovers for twelve (12) months from the date of these orders for the purposes of these orders occur at the Hobart Contact Centre at the commencement of each such time and at the Launceston Contact Centre at the conclusion of each such time or otherwise as agreed between the parties and thereafter at such location(s) as agreed between the parents.

7. That otherwise X spend such other time or variations of the above with the father as agreed between the parents from time to time.

IT IS NOTED that publication of this judgment under the pseudonym Keadle & Mildren is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 114 of 2020

MR KEADLE

Applicant

And

MS MILDREN

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties’ one child, X, born in 2016 (aged 4 years) with the discrete issue as to the nature of the regime of time for X with the father.  Each parent agrees that there should be orders for equal shared parental responsibility and that X live primarily with the mother.

2. It seems that an essential element of this dispute is the geographical locations of the parents where the mother lives with X at Town B in southern Tasmania and the father in Launceston.

3. In his case outline the father asks for orders to spend time with X as follows:

   4(a)In school terms in 2021, each alternate week from Thursday at 10am until Sunday at 1.30pm (unless Monday is a non-school day in which case, time will conclude on Monday at 1.30pm.

   (b)In school terms from Term 1, 2022 onwards, each alternate weekend from Friday after school until Sunday at 1.30pm (unless Monday is a non-school day in which case, time will conclude on Monday at 1.30pm).

   (c)If Easter is a separate holiday to the Term 1 holidays, from Good Friday at 10am until Easter Sunday at 4pm.

   (d)During all mid-term holidays (and for that purpose “mid-term holidays” is defined as commencing on the day after the last day of school and concluding on the day prior to the resumption of school, for a period of 8 nights, to coincide with, commence with and incorporate the first-occurring weekend which would ordinarily have occurred in rotation in Term, time pursuant to paragraph 4(a) and (b).

   (e)Each Christmas period from Christmas Eve at 9am until Boxing Day at 4pm;

   (f)For half of all summer holidays on a “week about” basis, with the week to coincide with, commence with and incorporate the first-occurring weekend which would ordinarily have occurred in rotation in Term, time pursuant to paragraph 4(a) and (b) ON CONDITION that X’s time with the Father shall always end 48 hours prior to the resumption of school.

   …

   5.If X is unwell to the extent that she is unable to spend time with the father in accordance with this order, the father shall instead spend time with X from the following weekend in the usual terms or such other weekend as may be agreed between the parties in writing…

   7.For the purpose of changeover, the father shall collect X from outside the mother's place of residence (or from school where relevant) and the mother will collect X from outside the father's place of residence.

4. During his evidence the father, in a child focused way, was able to retreat to an extent from his application and provide a ‘plan B'.  Firstly, he agreed that X should spend each alternate Christmas with the mother despite the mother not observing the religious feast of the day.  Similarly, the father acknowledged a benefit in a graduated lead-in to week-about school holiday periods.

5. In her case outline the mother seeks the following orders for X's time with the father:

   4.1Commencing the weekend of 12/13 December 2020 and every 4 weeks thereafter:

   4.1.1 Saturdays from 10.00 a.m. to 4.00 p.m.; and

   4.1.2 Sundays from 10.00 a.m. to 3.00 p.m.;

   with changeover to take place at C Park in Suburb D or the Hobart Children’s Contact Service, as agreed.

   4.2From 24 December 2020 at 10.00 a.m. to 25 December 2020 at 1.30 p.m. with changeover to take place in Hobart at the commencement of the Father’s time and in Launceston at the conclusion of the Father’s time at a location to be agreed and failing agreement, at C Park in Suburb D in Hobart and the E Hotel carpark in Launceston NOTING THAT the Children’s Contact Services will not be open on those dates.

   4.3Commencing from the weekend of 23/24 January 2021 and every 4 weeks thereafter:

   4.3.1 Saturday from 10.00 a.m. to Sunday at 1.30 p.m.;

   with changeover to take place at C Park in Suburb D at the commencement of the Father’s time and in Launceston at the conclusion of the Father’s time, at a location agreed by the parties in writing, or if failing agreement, at the Children’s Contact Services in Hobart on Saturday and Launceston on Sunday.

   4.4From Friday 11 June 2021 at 10.00 a.m. to Sunday 13 June 2021 at 1.30 p.m. and every four weeks thereafter with the changeover arrangements as per paragraph 4.3. above.

   Term time arrangements from 2022 and beyond

   4.5For the Father’s first Launceston weekend after X commences full time school in February 2022 (being on or about 19/20 February) the Father’s time with X as specified in paragraph 4.4 above will be suspended and replaced with:

   4.5.1 FromFriday at 3.15 p.m. (or 1.30 p.m. if a non-school day) until 1.30 p.m. on Sunday, and every four weeks thereafter;

   with changeover to take place at McDonalds Suburb F (or C park Suburb D if a non-school day) at the commencement of the Father’s time and the E Hotel carpark in Launceston at the conclusion of the Father’s time, or such times or locations as agreed by the parties.

   4.6The arrangements in paragraph 4.1 of these Orders continue in the alternate fortnightly weekend in Hobart.

   School holidays

   4.7When X commences full time school in 2022, the Father’s term time arrangements in paragraphs 4.5 and 4.6. above will be suspended and X will spend time with the Father in the term school holiday periods as follows:

   4.7.1 In 2022 & 2023 (X turning 6 and 7 years of age) for 3 nights during the first week;

   4.7.2 In 2024 & 2025 (X turning 8 and 9 years of age) for 4 nights during the first week;

   4.7.3 In 2026 & 2027 (X turning 10 & 11 years of age) for 5 nights during the first week;

   4.7.4 In 2028 onwards (X turning 12) for 7 nights in the first week.

   …

   4.9For the long summer holidays from December 2022 onwards, the Father’s term time arrangements will be suspended, and the father will spend the following time with X:

   4.9.1In 2022 & 2023 (X turning 6 and 7) for 3 nights on two separate occasions as agreed between the parties;

   4.9.2In 2024 & 2025 (X turning 8 and 9) for 4 nights on two separate occasions as agreed between the parties;

   4.9.3In 2026 & 2027 (X turning 10 and 11) for 5 nights on two separate occasions;

   4.9.4In 2028 onwards (X turning 12), for 7 nights on two separate occasions;

   with the Father’s Christmas and Easter time with X to be included in the holiday times above for the years that he is due to spend time with X on those special occasions.

   …

   Christmas

   4.11In 2022, and every alternate year thereafter, the Father will spend time with X from 11.30 am Christmas Eve until 1.30 p.m. Boxing Day IT BEING NOTED THAT X IS SPENDING TIME WITH THE FATHER FOR CHRISTMAS IN 2020. The Father will collect X at the commencement of his time at a location to be agreed by the parties, or failing agreement C Park in Suburb D and the Mother will collect X at the conclusion of her time in Launceston.

6. The Independent Children's Lawyer effectively supports the father's position of time for X with the father each second weekend and for half school holidays.

The Issues

1. In a broad sense, therefore, the issues between the parents are the following:

   (a)Whether X spend time with the father each second weekend or each third weekend; and

   (b)The graduated period of time for X to reach half of school holiday time with the father.

Relevant Background Facts

1. The father is 44 years of age and lives in Launceston.

2. The mother is 42 years of age and lives in Town B.

3. The parties were in a short relationship from 2014 to 2015.  That relationship ended prior to X's birth in 2016.

4. The parties entered into consent orders before her Honour Judge Baker on 14 December 2018 providing inter alia as follows: –

   1.That the parents have equal shared parental responsibility for X;

   2.That X live with the mother;

   3.That X spend time with the father on a graduated regime from 12 December 2018 culminating in time on a six weekly cycle as follows: –

   a)   weeks one, three and five on Wednesdays for 7 hours;

   b)   weeks two and four on Sunday and Monday for 7 hours;

   c)   Week six in Launceston for a period of 7 hours on the Saturday and 6 hours on the Sunday with the mother to transport X to Launceston and the father to pay $70 for transport and accommodation expenses.

5. Changeovers have occurred at the Hobart Children's Contact Centre save and except those taking place in Launceston.

6. It seems that arrangements have continued and evolved into a situation where X sees her father fortnightly with one occasion being in Hobart and the next in Launceston.  She has now spent limited overnight time with the father with the first occasion being as recently as 8 August 2020.

7. The father is now married to Ms G and they have a son, H, aged 1 year.

Relevant Law

1. The orders that I am asked to make are parenting orders and that being the case I am to have X's best interests as my paramount consideration. In determining those best interests I am mandated to reference the numerous factors set out in s.60CC(2) and (3) of the Family Law Act 1975 ('the Act') against the background of the objects and principles of the legislation set out in s.60B.

2. The relevant considerations here are X’s age; the need to make orders which benefit children having a beneficial relationships with each of their parents; the capacity of each of the parents to attend to X's physical, intellectual and emotional needs; the logistics of the travel between Town B and Launceston and whether such travel is onerous for X; and the nature of the relationship between the parents themselves with issues of trust and confidence.

The Evidence

1. Both parties provided affidavits and gave evidence.  They were cross-examined including by the Independent Children's Lawyer.

2. I was somewhat surprised at the evidence of the parties in the witness box given the relatively critical and negative contents of their affidavit material.  To the contrary, both parents gave evidence and presented as child focused, positive, mature and conciliatory.  Each was able to make concessions and each moved to a degree from the position set out in their case outlines.  The negativity of their affidavits was certainly not manifested in the evidence from the witness box.  X is indeed fortunate to have two loving and insightful parents given that their own relationship was short lived. 

3. The father acknowledged issues with X relaxing and, in particular, being able to sleep in his home during the couple of visits that have occurred at this stage.  Importantly for my consideration, is the fact that the father was able to speak with the mother and obtain her advice during these periods.  Such interaction and communication argues positively for X's care in the future.

4. The mother, not unusually, where she is effectively the sole parent of an only child, takes a cautious and conservative approach in assimilating X into the care of the father.  Also not surprisingly, the father takes a more adventurous and ambitious approach.  Again, however, during their evidence each of the parents was able to move to a degree from their initial positions showing, in my view, insightful and child focused parents.

5. The mother's capacity to care for X is unimpeached if only by the father's willingness to delegate primary care to her.  The father's capacity is yet unknown.  However, as suggested to the mother in the witness box, she will not attain any requisite degree of trust and confidence until the father has had the opportunity to 'earn' that confidence and, in any event, the mother's hesitations and anxiety will remain whether X assimilates sooner or later into a regime of overnight block periods with the father.  Similarly, the father must understand that it is to the mother’s credit and X's best interests that his daughter has a vigilant and caring mother and he must therefore respect and understand the mother’s hesitation in permitting another person, albeit the child's father, to assume a greater responsibility for her daughter.

6. X’s time with the father thus far has been occurring each fourth week with the father travelling to Hobart.  This is a situation that cannot realistically continue into the future where the father's time with X is spent away from his home base and where the relationship between X and her father will more likely prosper with the comfort and familiarity of it occurring from the father's home.

7. The logistics of travel between Hobart in Launceston are significant.  The travel time is approximately 2.5 hours or five hours return.  If the mother is to contribute to this travel then it presents significant inconveniences but, from experience, not a unique situation for parents transitioning children in Tasmania. 

8. Similarly, it would not be unexpected for X to experience some discomfort in the travel between Launceston and Hobart but again experience suggests that such travel becomes easier for children as time progresses and such becomes a part of their life routine.

9. X is just four years of age and will attend kindergarten in 2021 but not full-time school until 2022.  If only by reason of her living arrangements thus far, it is reasonable to expect that X's primary attachment and source of support is her mother and perhaps evidenced by her difficulties in disturbed sleep patterns when with the father.

Conclusions

1. It is somewhat unusual for a judge to be concerned not with matters of principle but simply considerations of two legitimate and child focused proposals by two excellent parents.  Neither expresses any real concerns as to the other’s parenting capacity although, of course, the father has had limited opportunity to show his skills. Consequently, the mother is understandably conservative and her concerns in respect of her four year old daughter are reasonable and valid.  The father's initial proposals were ambitious and adventurous but his ‘plan B’ is more realistic in respect of a four year old child who has spent only a couple of nights away from her mother and with him.

2. I am of the view that fortnightly time for X with the father is appropriate.  I am not persuaded that the travel is either too onerous for the child or the parents and sits comfortably with the successful transitions for many other Tasmanian families.  Should the parties have a preference for one to do all the travel each way thereby utilising the Hobart Contact Centre for changeovers for the near future then this would be appropriate.  Alternatively, one would hope that with the flux of time and hopefully success then the parents might agree to meet halfway between the homes at a location such as Town J.  Alternatively, they might then use each other's residences as the changeover points.  Again, I make these comments having seen and heard the parents give evidence and am confident that their potential for conflict either personally or over X is minimal.  I will, however, order that the Hobart Contact Centre be utilised for the initial changeovers for the next 12 months, subject to agreement otherwise.

3. The issue of school holiday time for X with the father is again one of the mother obtaining the requisite degree of trust and confidence that her daughter will be happier, settled and properly cared for when away from the mother herself for longer periods.  I am confident that this trust and confidence will come over time and that the father will demonstrate his skills and parenting insight to the mother.  In this sense, I accept the submissions of the Independent Children's Lawyer that there should be a graduated lead-in to full week time and that this take place during the 2021 school holidays when, of course, X will be attending kindergarten.  There will be a period of a block of four nights in the first term holidays 2021 coinciding with the father's weekend and thereby limiting further unnecessary changeovers.  This will extend to 5 nights in the third term holidays 2021 and thereafter commencing the summer school holidays 2021/2022 time which would be on a week-about basis during all school holidays.  I will order accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate:

Date: 18 December 2020