Lawrence and McCormick

[2017] FCCA 128

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWRENCE & MCCORMICK [2017] FCCA 128

Catchwords:
FAMILY LAW – Parenting – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60DAA, 65D

Cases cited:

Goode & Goode (2006) FLC93-286

Applicant: MS LAWRENCE

Respondent: MR MCCORMICK

File Number: PAC 1164 of 2016

Judgment of: Judge Newbrun

Hearing date: 8 December 2016

Date of Last Submission: 8 December 2016

Delivered at: Parramatta

Delivered on: 30 January 2017

REPRESENTATION

Solicitors for the Applicant: Claremont Legal

Respondent In Person

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Penrith

ORDERS

1. That the children spend time with the Father as agreed between the parties, and failing agreement, as follows:

   (a)Commencing Friday, 3 February 2007, each alternate weekend from Friday 6:30PM to Sunday 5:30PM; relevant changeovers shall occur by the Mother delivering the children to the Father at McDonald’s, (omitted) on the Friday evening at 6:30PM, and the Father returning the children to the Mother at McDonald’s, (omitted) on the Sunday afternoon at 5:30PM.

2. The parties are permitted to place photographs of the children on any social media website used by the children. The parties shall regularly supervise the children’s use of such social media websites.

3. That in the event that the Mother intends to relocate the children’s place of residence to an interstate location, then she shall give to the Father not less than one month’s notice of her intention to relocate the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1164 of 2016

MS LAWRENCE

Applicant

And

MR MCCORMICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This short final hearing relates to the children X, born (omitted) 2006, and Y, born (omitted) 2008.

2. The parties were content for the Court to deal with the matter on the papers and without cross-examination. The Court heard brief submissions from the Father, the Mother and the Independent Children’s Lawyer.

3. The Father lives in (omitted), at the higher end of the (omitted), about 30 minutes out of (omitted). The Mother lives in (omitted).

4. The parties reached some final parenting agreements on 15 November 2016, with the exception of some outstanding discrete parenting issues that they could not agree upon. Those issues are as follows:

   a)Whether the changeover location and time during school term times, in respect to the parties’ agreement that the children spend time with the Father each alternate weekend from Friday afternoon to Sunday afternoon, should be at McDonald’s restaurant, (omitted) at 5:30PM (both Friday evening and Sunday afternoon) (the Father’s proposal); or McDonald’s Restaurant, (omitted), at 6:15PM on the Friday evening and 4:30 PM on the Sunday afternoon (the Mother’s proposal);

   b)Whether the Mother should be permitted to permit pictures of the children to be placed on social media and other websites; the Father opposes this; and

   c)What amount of notice the Mother should give to the Father if she wishes to relocate interstate with the children; the Mother proposes 48 hours’ notice whereas the Father proposes 3 months’ notice.

Material relied upon by parties

1. The Father relied upon his Affidavit filed 7 December 2016, and the information contained in a computer disc from the subpoenaed documents (Sleeve 6) of Dr L GP, and in a further computer disc from the subpoenaed documents (Sleeve 8) of the (omitted) Doctors.

2. The Mother relied upon her Affidavit filed 22 November 2016.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (Cth) (the Act) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

3. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

4. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

5. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section

   
   

   65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

6. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

Evidence

Disputed issue (a): Changeover time and location

1. The Mother stated relevantly in her Affidavit that she is proposing changeovers at (omitted) because that place is closer to her home in (omitted) than McDonald’s restaurant in (omitted.

2. The Mother stated that she works full-time from Monday to Friday 8:15AM until 4:30PM for the (employer omitted). She works at (omitted) in Sydney. She leaves home at 6:30AM and catches the train to (omitted). The train ride from (omitted) to (omitted) is up to 1 hour in duration.

3. The Mother attaches to her Affidavit her Record of Attendance from the (employer omitted) from 30 June 2016 to 14 November 2016. This record shows the Mother consistently finishing her days work with the (employer omitted) at 4:30PM.

4. The Mother states that she arrives home from work at about 5:30PM, and she is very tired, having stated that she is on her feet all day at work assisting clients with (duties omitted). The Mother states her concern that should she be made to conduct the changeover at McDonald’s, (omitted) on the Friday evening, in particular straight after finishing work and arriving home from the city that she may suffer fatigue from being tired.

5. The Mother attaches to her Affidavit some Google map searches, showing the drive time from (omitted) to McDonald’s at (omitted) to be a minimum of 44 minutes without traffic. The Google map relating to the drive time from (omitted) to McDonald’s, (omitted) states that the minimum time is 53 minutes without traffic. Common sense suggests that on a Friday evening with busy Sydney traffic, the above drive times could well be longer periods.

6. The Mother also states that on arriving home from work she shall have to get the children ready for their weekend with the Father before driving them to the relevant changeover point.

7. The above evidence would indicate that the Mother would likely not arrive at McDonald's (omitted) with the children on a Friday evening, leaving (omitted) at about 5:45PM (the Mother arrives home at 5:30 PM and then would probably need to get the children ready to leave for the changeover), until about 6:30PM and quite possibly later by reason of traffic. If the Mother was required to travel from (omitted) to McDonald’s, (omitted), on her evidence it is likely that she would not arrive there until about 6:45PM, and quite possibly later by reason of traffic.

8. As to this issue of changeover location and changeover time, the Father’s Affidavit states that the changeover time should be 5:30PM on the Friday evening “to allow the children to participate in a complete and full weekend with myself and Ms J and her child.” The Father states that the Mother works on a Flex roster,

   therefore she can work her roster around an early drop off one day per fortnight e.g. work/life balance. This is reflected in her sample roster she attached to her Affidavit where you can see she has left work early on a regular basis.

9. The Court observes at this point that the Mother’s attached record of attendance at the (employer omitted) does not indicate that “she has left work early on a regular basis”; rather, and to the contrary, it clearly indicates she has consistently worked to 4:30 PM on each of her work days.

10. The Father states further that,

    I would suggest that it would not be unreasonable for (the Mother) to arrange with her partner or a person of her choosing, one evening per fortnight, to collect the children from school, drive them to a train station near the drop-off point being (omitted) where (the Mother) would meet them, rather than (the Mother) catching a train all the way into (omitted) only to turn around and come back again. This would alleviate the amount of travel that (the Mother) indicates is the problem in her Affidavit. (The Mother) theoretically could catch a train from Sydney to (omitted), which is a much shorter distance than (omitted), and meet the children there and bring them to (omitted) McDonald’s.

11. The Court observes, in relation to this statement by the Father, that there is no evidence presently before the Court that the Mother could so arrange with her partner or another person to collect the children and drive them “to a train station near the drop-off point being (omitted)”.

Disputed issue (b): Permitting pictures on social media

1. As to the issue relating to the Mother posting photographs of the children on social media, which the Father opposes, the Father states that he does not believe in putting pictures of the children on social media “or the Web” because “This is where paedophiles get their images from.”

2. As to this issue, the Mother states,

   I started my Facebook account on or about May 2012 purely to find my brother and to stay in touch with other extended family and friends. I believe that (the Father) started his Facebook account a couple of years earlier. (The Father) and I have often posted pictures of our children and extended family on social media, and up until I left our residence on 1 July 2015, (the Father) never raised a concern or issue of the pictures and/or videos posted on social media of the children. I only became aware that this was an issue for (the Father) when the matter was before the Court on 15 November 2016.

3. The Mother also states,

   My extended family on my deceased Father’s side do not get to see us in person. Some of them live in the (omitted) and others in Queensland. Being able to post family pictures and events of the children on Facebook is one of the only way our extended family can see what is happening in our lives and see how the children are growing up.

4. The Mother also states,

   Our daughters X and Y each have their own Facebook, Instagram and (omitted) accounts all of which are supervised by me and my partner Mr D. We check their accounts on a daily basis.

5. The Mother also states, “our daughters get to speak with their older sister and 1 year old nephew on social media, as well as with their extended family and friends.”

6. The Mother also states,

   I believe that (the Father) is asking for this restriction because in late 2015 a picture of my partner, Y and I was uploaded, with my approval, on (omitted) Facebook page. (omitted) Facebook is a (omitted) club who help the homeless, families of domestic violence and do charity events and donations. My partner Mr D was a vice president and has since left the (omitted). (omitted) Facebook run a dinner every Thursday evening at (omitted) station for the needy and homeless. The picture was taken at one of those evenings.

7. The Mother also states, “I say that other pictures of our children on social media are at my discretion. Not one of those pictures has been in indecent or unorthodox.”

8. The Mother also states, “(the Father) has agreed for Instagram to be one of the forms of communication between the children and he. I understand that he often communicates with the children on Instagram.”

Disputed issue (c): Amount of notice for mother’s interstate relocation

1. As to the issue of the Mother giving certain notice to the Father of any intention to relocate with the children, the Mother states that she proposes to agree to give the Father merely 48 hours’ notice. Again, the Father seeks that the amount of notice be 3 months,

   to allow time to have orders varied. This is so that the parent that is moving, is not locked into a drop-off location that they can’t get to in time, this will prevent any proceedings around contravention of order is taking place.

Discussion

Disputed Issue (a): Changeover time and location

1. Accepting the Mother’s evidence as above, the Court finds that the Father’s proposal for changeover pick up time on the Friday evening to occur at 5:30PM is impractical as the Mother, realistically, would have no real prospect of arriving at either McDonald’s, (omitted), or McDonald’s, (omitted) by 5:30PM. As discussed, the Mother would probably be able to arrive at McDonald’s, (omitted), by about 6:30PM subject to traffic. She would probably not be able to arrive at McDonald’s, (omitted) until about 6.45PM and possibly later subject to traffic.

2. Accordingly, noting that the Father emphasises in his Affidavit his wish to spend as much time as possible with the children during their time with him, there is significant merit in the changeover pick-up time on the Friday evening occurring at McDonald’s, (omitted), about 6:30PM on the Friday evening, which would allow the children and the Father to spend that short extra time together, albeit whilst driving, rather than having the children meeting the Father later at McDonald’s, (omitted).

3. As to the issue of the drop-off time and place on the Sunday afternoon, again the Father proposes a drop-off time at McDonald’s, (omitted) at 5:30PM, and the Mother proposes a drop-off time at McDonald’s, (omitted) at 4:30PM.

4. On the Sunday afternoon, each alternate week, the Mother will not have the pressure of leaving work promptly at 4:30PM, returning home to (omitted), picking up the children, and delivering them to the changeover place in a timely fashion. Noting the importance of the children spending time with the Father on each alternate weekend, with a view to maintaining and enhancing their meaningful relationship with him, the Court is of the view that the Father should be required to return the children to the Mother at McDonald’s, (omitted) on the Sunday afternoon at 5:30PM, in accordance with the Father’s proposal.

5. In relation to this issue of the time and place of changeover, the Father states, inter alia, that he has limits to the amount of driving that he can do. He tendered and relied upon the above referred to computer discs (2). The computer disc from the (omitted) Doctors relates to the children and the Mother. The material contained within the computer disc from Dr L GP was perused by the Court; relevantly, the Court noted from this material that there is no specific driving restriction noted on any of the WorkCover NSW Certificates of Capacity (the most recent certificate being dated 18 October 2016) and otherwise the Court cannot discern any reference to significant driving restrictions upon the Father.

6. In any event, even assuming that the Father has some physical and/or psychological difficulty with prolonged driving, it is apparent from the Father’s changeover proposals that he believes he is capable of driving from his residence in (omitted) to at least (omitted), a not insignificant distance. The Father, who the Court notes is presently not in active employment, should be able to, if he chooses, stagger his driving trips from (omitted) to pick up the children from McDonald’s, (omitted), choosing rest breaks, noting that the driving distance from (omitted) to (omitted) is about 11 kilometres.

Disputed issue (b): Permitting pictures on social media

1. The Court accepts the Mother’s evidence on this issue. The Father’s assertion as to paedophiles getting their images from such social media is not supported by the evidence presently before the Court. The Mother’s evidence indicates that there are prospective benefits to the children in having their photographs posted on their social media sites by reason of increased and meaningful contact with members of their extended family and also their friends. The Mother’s evidence is that she and her partner vet the children’s relevant social media postings. Again, the Court accepts the Mother’s evidence on this issue.

Disputed issue (c): Amount of notice for mother’s interstate relocation

1. In the view of the Court, 48 hours’ notice proposed by the Mother is clearly insufficient. One months’ notice, in view of the Court, should be sufficient to allow the Father to relevantly apply to the Court in the context of proposed relocation.

Conclusion

1. In view of the very limited evidence relied upon the parties for this short final hearing, it has not been possible for the Court to consider all the considerations under section 60CC of the Act, however the Court has particularly considered the meaningful relationship primary consideration, together with practicality considerations arising by reason of the geographical distance separating the parties’ respective residences.

2. By reason of the parties’ respective residences being a not inconsiderable distance apart, an equal time shared care arrangement would likely not work productively from a practicality perspective and not be in the best interests of the children, and similarly, a parenting order providing for the children spending time with the Father on a substantial and significant time basis would not be in the best interests of the children from a practicality perspective.

3. Accordingly, the Court is of the view that it will be in the best interests of the children to make these final parenting orders (in addition to and supplementing the agreed final parenting orders of 15 November 2016):

   (1)That the children spend time with the Father as agreed between the parties, and failing agreement, as follows:

   a.a) commencing Friday, 3 February 2007, each alternate weekend from Friday 6:30 PM to Sunday 5:30 PM; relevant changeovers shall occur by the Mother delivering the children to the Father at McDonald’s, (omitted) on the Friday evening at 6:30 PM, and the Father returning the children to the Mother at McDonald’s, (omitted) on the Sunday afternoon at 5:30 PM.

   (2)The parties are permitted to place photographs of the children on any social media website used by the children. The parties shall regularly supervise the children’s use of such social media websites.

   (3)That in the event that the Mother intends to relocate the children’s place of residence to an interstate location, then she shall give to the Father not less than one month’s notice of her intention to relocate the children.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  30 January 2017