Leckner & Tomey

Case [2021] FCCA 814

FEDERAL CIRCUIT COURT OF AUSTRALIA

Leckner & Tomey [2021] FCCA 814

File number(s): ADC 2107 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 27 April 2021
Catchwords: FAMILY LAW – competing applications in respect of children aged 16 & 14 – parties have obtained privately funded short form report regarding the wishes of the children – controversy at interim hearing stage as to the implementation of the report particularly vis-à-vis views of older child – should time be subject to wishes of the child concerned – high conflict – factors possibly impacting on views of children – allegations of exposure to family violence – matters to be considered – best interests
Legislation:

Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 61DA & 67Z

Surveillance Devices Act 20016 (SA)

Cases cited:

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Bright v Bright (1995) LFC 92-570

Deiter & Deiter [2011] Fam CAFC 82

H v W (1995) FLC 92-598

Mazorski v Albright (2007) 37 FamLR 518

R & R; Children’s Wishes (1999) 25 Fam LR 712

Russell & Russell & Anor [2009] Fam CA 28

Slater & Light [2013] Fam CAFC 4

Other:

Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006

Number of paragraphs: 139
Date of hearing: 13 April 2021
Place: Adelaide
Counsel for the Applicant: Mr Boehm
Solicitor for the Applicant: Douglas Hoskins Legal
Counsel for the Respondent: Ms Lewis
Solicitor for the Respondent: Johnston Withers

ORDERS

ADC 2107 of 2020
BETWEEN:

MR LECKNER

Applicant
AND:

MS TOMEY

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

27 APRIL 2021

THE COURT ORDERS THAT:
UNTIL FURTHER OR OTHER ORDER:

1.The parties have equal shared parental responsibility for the children X born in 2004 (“X”) and Y born in 2006 (“Y”), (“collectively, “the children”).

2.That during school terms, Y live with the mother and spend time with the father for five (5) nights per fortnight as follows:

(a)Each alternate weekend, from the conclusion of school (or 3.00pm if a non- school day) Friday until the commencement of school Monday (or the commencement of school or 9.00am Tuesday in the event that Monday is a non-school day) commencing Friday, 30 April 2021;

(b)Each intervening week, from the conclusion of school (or 3.00pm if a non- school day) Wednesday until the commencement of school (or 9.00am if a non-school day) Friday commencing Wednesday, 21 April 2021.

3.During the April 2021 school holiday period, Y (and X subject to her wishes) spend time with each of the parties as follows:

(a)With the father from the conclusion of school on Thursday, 1 April 2021 until 10.00am on Saturday, 3 April 2021 UPON NOTING that the mother is to collect the children from the father’s holiday home at Suburb H at the conclusion of such time;

(b)With the mother from 10.00am on Saturday, 3 April 2021 until 5.00pm on Thursday, 8 April 2021;

(c)With the father from 5.00pm on Thursday, 8 April 2021 until 5.00pm on…

Continue reading Leckner & Tomey

Sign in free to access the full text

Details
AGLC
Leckner & Tomey [2021] FCCA 814
Case
[2021] FCCA 814
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Leckner (the applicant father) and Ms Tomey (the respondent mother) regarding parenting orders for their two children, X (born 2004) and Y (born 2006). The dispute centred on the time the children would spend with each parent following the parties' separation and divorce. The proceedings were heard by Brown J in the Federal Circuit and Family Court of Australia.

The court was required to determine the appropriate parenting arrangements for the children, specifically addressing issues of equal shared parental responsibility, the children's living arrangements, and the time they would spend with each parent during school terms, school holidays, and on special occasions. The court also needed to consider the wishes of X, given her age, and the potential impact of parental conflict on the children.

Brown J reasoned that both parents possessed different but complementary attributes beneficial to the children's development and that it was important for the children to maintain meaningful relationships with both parents. The court noted that while the mother had historically provided the majority of care, extending Y's time with his father was considered beneficial. The court also acknowledged the importance of the children's relationships with extended family, particularly Mr Leckner's role in this regard. Concerns were raised about the mother's potential for volatile reactions in stressful situations, which could impact X, leading the court to favour a fixed regime for time spent with parents to alleviate pressure on X.

The court made orders establishing equal shared parental responsibility and detailed arrangements for the children's time with each parent. These orders included specific schedules for school terms and holidays, as well as provisions for special occasions like Christmas, Easter, birthdays, Mother's Day, and Father's Day. The orders also stipulated handover procedures and required the parties to arrange for a professional to explain the orders to the children, with costs to be shared equally. A further directions hearing was scheduled.

Orders

Orders of the court

ADC 2107 of 2020

BETWEEN:

MR LECKNER

Applicant

AND:

MS TOMEY

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

27 APRIL 2021

THE COURT ORDERS THAT:

UNTIL FURTHER OR OTHER ORDER:

1. The parties have equal shared parental responsibility for the children X born in 2004 (“X”) and Y born in 2006 (“Y”), (“collectively, “the children”).

2. That during school terms, Y live with the mother and spend time with the father for five (5) nights per fortnight as follows:

(a) Each alternate weekend, from the conclusion of school (or 3.00pm if a non- school day) Friday until the commencement of school Monday (or the commencement of school or 9.00am Tuesday in the event that Monday is a non-school day) commencing Friday, 30 April 2021;

(b) Each intervening week, from the conclusion of school (or 3.00pm if a non- school day) Wednesday until the commencement of school (or 9.00am if a non-school day) Friday commencing Wednesday, 21 April 2021.

3. During the April 2021 school holiday period, Y (and X subject to her wishes) spend time with each of the parties as follows:

(a) With the father from the conclusion of school on Thursday, 1 April 2021 until 10.00am on Saturday, 3 April 2021 UPON NOTING that the mother is to collect the children from the father’s holiday home at Suburb H at the conclusion of such time;

(b) With the mother from 10.00am on Saturday, 3 April 2021 until 5.00pm on Thursday, 8 April 2021;

(c) With the father from 5.00pm on Thursday, 8 April 2021 until 5.00pm on Saturday, 10 April 2021;

(d) With the mother from 5.00pm on Saturday, 10 April 2021 until 5.00pm on Wednesday, 14 April 2021;

(e) With the father from 5.00pm on Wednesday, 14 April 2021 until 5.00pm on Sunday, 18 April 2021; and

(f) With the mother for the remainder of the school holiday period until the commencement of the new school term.

School terms

4. During school terms, X live with the mother and spend time with the father for five (5) nights per fortnight on the same rotation as Y as follows:-

(a) Each alternate weekend, from the conclusion of school (or 3.00pm if a non- school day) Friday until the commencement of school Monday (or the commencement of school or 9.00am Tuesday in the event that Monday is a non-school day); and

(b) Each intervening week, from the conclusion of school (or 3.00pm if a non- school day) Wednesday until the commencement of school (or 9.00am if a non-school day) Friday;

UPON NOTING that the attendance of X at the time specified at paragraph 4(b) herein is to be subject to X’s wishes.

5. At such further and other times as are in accordance with X’s wishes.

School holidays

6. Commencing in the July 2021 school holiday period and during all school holiday periods thereafter, the children live with each of the parties equally as follows:

(a) During all short school holiday periods, the children spend time with the father from the conclusion of school on the last day of the school term until 5.00pm on the middle Saturday and with the mother from 5.00pm on the middle Saturday until the commencement of school on the first day of the new school term SAVE THAT:

(b) In the event of any school holiday period being a three (3) week period then the children are to spend time with the parties as follows:-

(i) With the father from the conclusion of school on the last day of the school term until 5.00pm on the Friday of Week 1 of the school holidays;

(ii) With the mother from 5.00pm on the Friday of Week 1 of the school holidays until 5.00pm on the Friday of Week 2 of the school holidays;

(iii) With the father from 5.00pm on the Friday of Week 2 of the school holidays until 5.00pm on Wednesday of Week 3 of the school holidays; and

(iv) With the mother until the commencement of the new school term.

(c) That during all Christmas school holiday periods, the children shall spend time with each of the parents on a week about basis with all handovers to occur on Fridays at 5.00pm and with the father to have the first week of the holidays and each alternate week thereafter and the mother the second week of the holidays and each alternate week thereafter.

Special occasions

7. The children spend time for Christmas each year as follows:-

(a) With the mother from 12 noon on 24 December until 11.00am on 25 December;

(b) With the father from 11.00am until 5.00pm on 25 December; and

(c) With the mother from 5.00pm on 25 December until 10.00am on 26 December.

8. The children spend time for Easter each year with the father from the conclusion of school or 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday and with the mother from 5.00pm on Easter Saturday until the commencement of school or 9.00am on the Tuesday after Easter.

9. The children spend time with the mother for Mother’s Day from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day.

10. The children spend time with the father for Father’s Day from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day.

11. The children spend time with the party who is celebrating their birthday on each of the parties’ birthdays from the conclusion of school until 8.00pm or otherwise from 12.00pm until 8.00pm.

12. The children spend time with the parent who does not ordinarily have the care of them on each of the children’s birthdays from the conclusion of school until 6.00pm or from 2.00pm until 6.00pm in the event of a non-school day.

Handovers

13. All handovers which cannot occur at the children’s school(s) occur by way of the father collecting the children from the mother’s home at the commencement of the father’s time and the mother collecting the children from the father’s home at the conclusion of the father’s time unless otherwise agreed in writing.

Other issues

14. The reasons for judgment herein be provided to Ms B concurrently with their release to each of the parties’ concerned.

15. Within seven days of the date of these orders the parties contact Ms B in order to appoint a time for her to explain the import of these orders to each of the children concerned with any expense relating to such an appointment to be borne equally by the parties.

16. The further hearing of the matter be adjourned to 28 July 2021 at 9.30am for further directions.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

It is my impression that the parties different, but ever simmering resentments towards the other, have come to the boil in the current proceedings, which have been extremely hard fought, notwithstanding my attempts to deflect the parties to resolve their issues through less adversarial means. BACKGROUND Mr Leckner is a fifty-five year old, who works as a sales representative, earning approximately $70,000.00 per annum. He re-partnered in 2018 and lives in his current partner’s home in Suburb D. Following separation, he lived in rented accommodation. Ms Tomey is a fifty-one year old professional in her own practice in Adelaide. Her salary is said to be around $145,000.00 by the father. Y also attends a private single sex school. The mother pays all the school fees arising. It is her case that she is in strained financial circumstances. The mother has not re-partnered. She lives in the parties’ former shared home in Suburb E, which is within walking distance of X’s school. Mr Leckner currently pays child support, as assessed by the Agency. In this context, Ms Tomey deposes as follows:The father did not pay any Child Support until 2020, when he began paying $50 per month. I agree that the father has purchased school shoes and clothing for the children from time to time but generally his contribution financially is nominal. I have been primarily responsible, domestically and financially, for the children’s care since their birth.[1][1] See mother’s affidavit filed 31 July 2020 at [45]. It is the father’s position that he pays child support, as assessed, from time to time and makes contributions to the other significant expenses of the children concerned, particularly in regards to the purchase of sporting equipment and clothing. He further complains that the mother denigrates him because of her perception that he is not pulling his weight financially, so far as the children are concerned. In this context, Mr Leckner deposes as follows:Sadly, from various discussions with the children it appears to me that the mother focuses more on the financial contributions that we make towards the children whereas my focus has always been on providing the children with a happy home and meaningful one on one time when they are in my care.[2][2] See father’s affidavit filed 21 May 2020 at [33.4]. The parties married in 2002 and finally separated on 1 February 2016, when the father moved out of the Suburb E home. They are now divorced. Significantly, they have never previously sought court orders in respect of X and Y. It is the father’s view that he has hitherto attempted to be patient and conciliatory towards the mother and has only commenced proceedings as a last resort. On the other hand, it is the mother’s view that the arrangements, which have hitherto taken place in respect of X and Y spending time with their father have been appropriate and worked relatively well. It is common ground that the mother has provided the vast majority of the care for the children, who have spent limited time with their father. As with many other things arising from their parenting relationship, the parties fundamentally disagree as to why this has been so.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The other irony of the case is that, given X’s age and the pressures on the court’s business, it may well be the case that the final hearing, if needed, of the parties’ competing applications so far as X is concerned, may not occur until well into 2022, when X will be fast reaching her eighteenth birthday and so fall beyond the remit of the court.CONCLUSIONS I accept that both X and Y have a close and loving relationship with each of their parents. In my view, both Mr Leckner and Ms Tomey bring different but complimentary attributes to the parenting of the children. In addition, in general terms, I accept that it is likely to be beneficial for the children to have exposure to both male and female role models and the best role models, in this regard, are their parents. Accordingly, in my view, it is clearly the case that the children will benefit from having a meaningful level of relationship with each of their parents. As such, the children need to spend sufficient time, with each of their parents, to sustain these relationships. In my view, as the parties have to some extent acknowledged, it is important that Y’s time with his father be extended. Ms Tomey complains that Mr Leckner is not sufficiently motivated or organised to ensure that the children perform their homework and does not himself abide to the routine, which they need. Mr Leckner disagrees. It is not possible to resolve this issue in the context of the current proceedings. However, in this context, it is noteworthy that X herself did not complain to Ms B of any particular deficits in her father’s household. In general terms, involvement with extended family is important for the development of children. In particular, grandparents can provide children with important family history and give them a sense of where they fit in a broader or extended family. They may provide a different perspective on life to children.[18][18] See Bright v Bright (1995) FLC 92-570. The evidence is clear that Mr Leckner is better placed in this regard. It is also clear that X cherishes her relationship with her maternal grandmother and this may prove to be a bone of contention between X and her mother. In my view, this is a factor which supports there being a fixed regime for time spending, which take some pressure off X herself. The case, at this delicate interim stage, raises inchoate issues regarding X’s potential exposure to family violence, in the form of the allegations her mother has subjected her to angry tirades of abuse. The mother denies the gravamen of these allegations. I also accept that I must not apply artificially high standards to individuals in respect of their parenting. No one can be perfect and all are subject to the vicissitudes of stress. In this context, I do not consider the mother would consciously want to hurt X in any way but in a volatile situation there may be a risk of her (Ms Tomey) losing her composure and reacting in an extreme manner. Given her strong and perennial antipathy to Mr Leckner, such a situation may arise if X and her mother disagree about some aspect of her (X’s) potential desire to do something with her father, of which Ms Tomey disapproves.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.