MANNING & PEARSON
[2015] FCCA 90
•29 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANNING & PEARSON | [2015] FCCA 90 |
| Catchwords: FAMILY LAW – Parenting – Asperger’s and Attention Deficit Hyperactivity Disorders - when child should fly unaccompanied – who should pay airfares. |
| Legislation: Child Support (Assessment) Act 1989, ss.123, 145 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Federal Circuit Court Rules 2001, r.25A.07 |
| KB & TC (2005) FLC 93-224 Champness & Hanson (2009) FLC 93-407 F & S [2003] FMCAfam 531 Lightfoot v Hampson (1996) FLC 92 663 Mee v Ferguson (1986) FLC 91-716 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 Runcorne & Raine [2008] FamCA 837 Wainder & Wainder (2011) FLC 93-473 Wild v Ballard (1997) FLC 92 771 |
| Applicant: | MR MANNING |
| Respondent: | MS PEARSON |
| File Number: | LNC 648 of 2007 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 12 and 13 June 2014 |
| Date of Last Submission: | 13 June 2014 |
| Delivered at: | Launceston |
| Delivered on: | 29 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P McVeity |
| Solicitors for the Applicant: | Philip Welch |
| The Respondent appeared in person |
ORDERS
That the Orders of the Federal Magistrates Court of Australia of 17 October 2011 are discharged.
That except as otherwise provided in these Orders MR MANNING (“the father”) and MS PEARSON (“the mother”) have equal shared parental responsibility for [X] born [omitted] 2003 (“the child”).
That the child live with the mother.
That the child communicate and spend time with the father as may be agreed between the father and the mother in writing, but failing agreement as follows:
(a)By telephone each Sunday at 5.00 p.m. with the father to initiate the call on the first Sunday and the mother to initiate the call on the second Sunday of each fortnightly cycle;
(b)For half of the child’s school holidays at the end of Term 1 and Term 2 with such to commence on the first Saturday of the relevant school holiday;
(c)During the child’s school holiday at the end of Term 3 from the first Saturday until the last Saturday;
(d)During the child’s long summer school holiday commencing at the end of Term 4 in odd numbered years commencing on the first day of the holiday and concluding three weeks before the start of Term 1 of the following year;
(e)During the child’s long summer school holidays commencing at the end of Term 4 in even numbered years for a period commencing two weeks after the end of Term 4 and concluding one week before the start of Term 1of the following year;
(f)During Term 1 from Friday evening until Monday evening of the Tasmanian Eight Hours Day long weekend in March;
(g)During Term 2 from Friday evening until Monday evening of the Tasmanian Queen’s Birthday long weekend in June;
(h)During Term 3 from Friday evening until Sunday evening of the fifth weekend of that Term;
(i)During Term 4 from Friday evening until Monday evening of the Northern Tasmanian Recreation Day long weekend in November; and
(j)On such other occasions and on such terms as may be agreed between the parties.
That for the purposes of the child spending time with the father in accordance with these Orders, and unless otherwise agreed by the parties:
(a)The child is to travel on flights scheduled to depart Tasmania no earlier than 9.00 a.m. and no later than 6.15 p.m. and to depart Melbourne no later than 5.00 p.m. on the relevant day;
(b)Until the child travels unaccompanied in accordance with these Orders, the child is to be accompanied on all flights from Tasmania to Melbourne by either the mother or her nominee and on all flights from Melbourne to Tasmania by either the father or his nominee;
(c)The location for handover at the commencement of the father’s time with the child is to be at the arrivals gate at the Tullamarine Airport, Melbourne and the location of handover at the conclusion of that time is to be at the arrival gate at Launceston Airport.
(d)The mother must book and pay the airfares for all relevant passengers on all flights in relation to the time that the child spends with the father in accordance with subparagraphs (b) to (e) inclusive of Order No. 4 hereof and provide to the father full details of the bookings (including copies of itineraries) at least 14 days prior to the start of the travel; and
(e)The father must book and pay the airfares for all relevant passengers on all flights in relation to the time that the child spends with him in accordance with subparagraphs (f) to (i) inclusive of Order No. 4 hereof and provide to the mother full details of the bookings (including copies of itineraries) at least 14 days prior to the start of the travel.
That unless the parties otherwise agree in writing the child is to travel by air unaccompanied in relation to all travel after the child’s 12th birthday.
That the parties have liberty to apply in relation to Order No. 6 hereof if the child’s treating paediatrician is of the opinion that unaccompanied air travel after the child’s 12th birthday in accordance with Order No. 6 is not in the child’s best interests, provided that:
(a)the application is made and served not less than 60 days prior to the intended date of travel; and
(b)an affidavit from the child’s treating paediatrician is filed and served with the application.
That in the event the child is not in the care of the father on the child’s birthday, the father is to have telephone communications with the child at 7.30 a.m. on that day with the father to initiate the telephone call.
That in the event the child is not in the care of the mother on the child’s birthday, the mother is to have telephone communications with the child at 7.30 a.m. on that day with the mother to initiate the telephone call.
That in the event the mother wishes to change the child’s school enrolment she must give the father written notice of and the reasons for the proposed change at least one month in advance of the proposed change and upon the giving of such notice the parties must make reasonable efforts to consult about the proposed change.
That the mother and father must each advise the other in advance and where possible at least 14 days in advance of all specialist appointments for the child, including but not restricted to paediatric and psychological appointments, save and except in the event of a medical emergency in which case notification must be as soon as is reasonably practicable.
That each party shall have the option of attending all specialist appointments arranged for the child.
That the parties must each provide the other at handovers any prescribed medications for the child and each must administer such medication as recommended by the child’s treating health professional.
That the parents must follow the recommendations of the child’s health care professionals as to his treatment.
That each parent must notify the other as soon as practicable in the event of the child suffering a serious illness, being hospitalised or requiring a medical procedure while in the care of that parent.
That both parents are restrained from denigrating the other parent in the presence of the child or permitting any third party to do so.
That each parent must notify the other within 48 hours of any change to his or her residential address and/or contact telephone number.
IT IS NOTED that publication of this judgment under the pseudonym Manning & Pearson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 648 of 2007
| MR MANNING |
Applicant
And
| MS PEARSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is MR MANNING (“the father”) and the respondent is MS PEARSON (“the mother”). They were married in 1998, separated in 2006 and divorced in 2008.
The parties have one child from their relationship, [X] who was born in 2003. He is affectionately known by both parents as “[X]”, so I will refer to him in these Reasons as “[X]” or “the child”. The parties agree that [X] has Asperger’s Disorder (“Asperger’s”) in addition to Attention Deficit Hyperactivity Disorder (“ADHD”).
The father lives in Melbourne and [X] lives with the mother in Tasmania.
Both parties have remarried. At the time of the hearing, the father and his wife had two younger children (a girl who is nearly 4 years old and a boy aged 2) and they were expecting another child in December 2014.
Legal proceedings between the parties were first commenced by the father in early 2006. There have been a number of applications since that time but it is not necessary to set them out in detail here. Detailed final orders were made in this court on 17 October 2011(“the previous orders”). They were in the following terms:
1. That the Order of the Family Court of Australia made in proceedings no. LNC 648/2007 and dated 30th January 2008 be discharged.
2. That Mr Manning (“the father”) and Ms Pearson (“the mother”) have equal shared parental responsibility for [X] (“[X]”) born [omitted] 2003.
3. That the parties make a genuine effort to consult with each other in relation to all major long term issues relating to [X] including but not restricted to [X]’s education and health.
4. That [X] live with the mother.
5. That [X] spend time with the father as follows: -
a) From Friday 11th November until Sunday 13th November on the basis that the father or his nominee accompany [X] to Melbourne on the Friday and the mother accompany [X] from Melbourne to Launceston on the Sunday with the father to pay the airfares of [X] but not of the mother;
b) From Friday 25th November to Sunday 27th November on the basis that the mother accompany [X] for the return trip Launceston Melbourne Launceston with the father to pay the airfares for [X] but not the mother;
c) As and from 2012 during the Tasmanian school terms from Friday until Sunday in Melbourne every fourth weekend with the first weekend each term to commence on the fourth weekend following the conclusion of the father’s time in the immediately preceding school holiday period, such weekend time to extend to Thursday evenings or Monday in the event of a Tasmanian public holiday or student free day with handover times to be as per paragraph 6;
d) For the 2011 Tasmanian Christmas school holiday period and each Christmas school holiday period thereafter for the first half of the holidays commencing on the first day of the school holidays with the handover times to be as per paragraph 6;
e) Subject to 5(g) herein for the first week of the June school term holidays each year from the Saturday immediately falling after the conclusion of the school term to the following Saturday;
f) Subject to 5(h) herein for the September school term holidays each year from the Saturday immediately following the conclusion of the school term until the Saturday immediately prior to the start of term three;
g) On Tasmania commencing a four term school year for the Tasmanian school term holiday periods at the end of term 1 and term 2 for half of the term holidays commencing on the Saturday immediately after the conclusion of the term;
h) On Tasmania commencing a four term school year for the Tasmanian school term holiday period at the end of term 3 from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the fourth term;
i) Such further or alternate times as agreed between the parties from time to time.
6. That for the purposes of [X] spending time with the father in accordance with these Orders [X] will travel on a flight scheduled to depart Tasmania no later than 6:15pm and a flight to depart Melbourne no later than 5:00pm on the relevant day.
7. (a) That [X] shall be accompanied on all flights by either the father, the mother or another responsible adult agreed between the parties but which shall include the partner of either parent any of [X]’s grandparents and any sibling of either party.
(b) Subject to the following provisions herein as to payment of flights the mother or a responsible person nominated by her shall accompany [X] for up to one half (but not exceeding a total of 10) of his flights per calendar year commencing 2012.
(c) That the mother nominate from time to time and with at least 8 weeks notice which trip(s) she or her nominated person will accompany [X] such notice to stipulate whether such trip will be one way or return.
(d) The father or such person nominated by him shall accompany [X] on all other flights.
8. That until further Order the father shall pay for all airfares:
(a) For [X];
(b) For the accompanying person;
(c) If the accompanying person (either the mother or her nominee) is only accompanying [X] one way then for that person’s return flight;
(d) Where the mother or her nominee has accompanied [X] on a one way flight then that person’s return flight will be on such day nominated by that person (it does not have to be the same day on which [X] was accompanied);
(e) If a flight whereby [X] is being accompanied by the mother or her nominee is delayed so that the accompanying person will not (in accordance with airline policy) be able to catch a pre-booked return flight then the mother shall forthwith notify the father and the father shall either book and pay for a return flight departing that same day or alternatively the visit shall be postponed with the father to have make up time on new dates to be agreed between the parties.
9. It being noted that the mother’s current contract of employment ceases in December 2011, the mother shall:
(a) From time to time notify the father within seven (7) days of her obtaining fresh employment and within a further fourteen (14) days notify the father of her income from that employment; and
(b) Should the mother work as an independent contractor then she shall provide to the husband details of her gross income for each 6 month period by the 31st July 2012 and 31st January 2013 and each 6 month period thereafter together with her estimate of net income (after business expenses) prior to tax. The mother shall also provide to the father a copy of her income tax return and assessment notice by the 31st December each year.
10. That either party have liberty to apply from time to time as to the question of contribution by the mother to the costs of airfares of [X] and/or the accompanying person.
11.(a) When the father or his nominee is the accompanying person handovers shall occur at the Launceston Airport and if such handover is to enable [X] to fly to Melbourne then the handover shall occur at least half an hour before the scheduled time for flight departure.
(b) When the mother or her nominee is the accompanying person handovers shall occur at the Melbourne Airport and if such handover is to enable [X] to fly to Launceston then the handover shall occur at least an hour before the scheduled time for flight departure at the relevant gate.
12. (a) That when the mother (or her nominee is the accompanying person), she notify the father at least twenty eight (28) days in advance the specific flights for [X] with such flights to be not before 4:30pm (if a school day) and not before 3:00pm if [X] is returning to Launceston and the cheapest internet flight available for the relevant date and times together with appropriate details of the accompanying person and the father shall pay for and provide a copy of the booking to the mother at least twenty one (21) days in advance.
(b) That on flights whereby the mother or her nominee is travelling from Launceston to Melbourne (with or without [X]) then if the mother nominates same day return travel the father shall book a return flight not earlier than 2 hours nor later than 4 hours prior to the scheduled time of the arrival flight and shall endeavour to book a flight as close to 2 hours from arrival as reasonably practicable; and
(c) That on return flights where the mother or her nominee is travelling without [X] and on a different day to the day [X] was accompanied then the father shall book a return airfare on the date nominated by the mother scheduled to depart between 8:00am and 6:00pm on the nominated day.
13. That when the father (or his nominee is the accompanying person) he shall provide the otherwise agreed between the parties.
14. That if a flight whereby [X] is being accompanied by the mother or her nominee does not occur due to a medical condition that prevents [X], the mother or her nominee from flying then the mother shall forthwith notify the father and provide a medical certificate confirming the inability to fly and the visit shall be postponed with the father to have make up time on new dates to be agreed between the parties.
15. That the father shall have video mobile phone communications with [X] every Wednesday and Sunday for a minimum of 10 minutes and a maximum of 15 minutes with the father to initiate the video call to the mobile phone.
16. That for the purposes of paragraph 14 herein the father will supply to the mother a video mobile phone.
17. That for the purposes of the mobile video phone communications detailed herein the father will meet all costs associated with the father’s communications with [X] each Wednesday and Sunday with the mother to reasonably ensure the video mobile phone is not used for any other purpose and communications with the father each Wednesday and Sunday.
18. That for the purposes of the father’s video telephone communications with [X], the mother shall ensure the mobile phone is charged at all times.
19. That when [X] is communicating with the father on the video mobile phone the mother will take all practicable means to facilitate [X]’s conversation with his father and will permit [X] to speak uninterrupted.
20. That in the event [X] is not in the care of the father on [X]’s birthday, the father will have video mobile phone communications with [X] at 7:30am that day with the father to initiate the telephone call.
21. That when [X] is communicating with the mother on the video mobile phone the father will take all practicable means to facilitate [X]’s conversation with his mother and will permit [X] to speak uninterrupted.
22. That in the event [X] is not in the care of the mother on [X]’s birthday, the mother will have video mobile phone communications with [X] at 7:30am that day with the mother to initiate the telephone call.
23. That when [X] is spending time with the father during the school holiday periods, the mother will have video mobile phone communications with [X] every Wednesday and Sunday for a minimum of 10 minutes and a maximum of 15 minutes with the father to initiate the video call to the mobile phone at 7:00pm.
24. That the mother and father shall each advise the other in advance and where possible at least 14 days in advance of all specialist appointments for [X] including but not restricted to paediatric and psychological appointments save and except in the event of a medical emergency in which case notification is to be as soon as reasonably practicable.
25. That each party shall have the option of attending all specialist appointments arranged for [X].
26. That the parties will provide to each other at handovers any prescribed medications for [X] and shall administer such medication as recommended by [X]’s treating medical practitioner or pharmacist.
27. That the parents follow the recommendations of [X]’s health care professionals as to treatment of [X]’s health including his Asperger’s Disorder.
28. That in the event that the health care professionals for [X] recommend:
(a) That [X] is not coping with the number of trips to Melbourne provided for in these Orders; or
(b) That [X] no longer needs to fly accompanied by an adult then either party shall have liberty to apply.
29. That neither parent shall denigrate the other parent to or in the presence of [X] nor permit any third party to do so.
30. That each parent will notify the other within 48 hours of any change to their residential address or contact telephone number.
31. That either parent shall notify the other as soon as practicable in the event of [X] suffering a serious illness or being hospitalised or requiring a medical procedure while in the care of the other parent.
NOTATION
1. That the parties shall review the issue of [X] travelling unaccompanied to Melbourne either as recommended by an appropriate health professional working with [X] as detailed in paragraph 25 herein or by the end of 2013 whichever is the earliest.
2. The father has sought an interim Order only in relation to the cost of airfares because he seeks the right to seek contribution from the mother in the event of a change to the mother’s predicted December 2011 financial circumstances
3. That these orders include the particulars of the obligations created, and the consequences that may follow if a person contravenes an order, that are set out in the document entitled “Parenting Orders - obligations, consequences and who can help” and attached to these orders.
The issues
The father filed an Application on 3 September 2013 seeking the following orders:
1. That Orders 5(c), 7, 8, 11, 12 and 13 of the Federal Magistrates Court Order dated 17th October 2011 be discharged.
2. That [X] born [omitted] 2003 (“[X]”) spend time with Mr Manning (“the Father”) during the Tasmanian school term from Friday until Sunday extending to Thursday evenings or Monday in the event of a Tasmanian public holiday or student free day as follows: -
a) In term 1 for the long weekend falling in March and in term 2 for the Queen’s Birthday weekend falling in June as observed in Tasmania; and
b) On the fifth weekend immediately after the resumption of the third and fourth Tasmanian school term;
with handover times to be as per paragraph 6 of the Federal Magistrates Court Order dated 17th October 2011.
3. That in addition to the time detailed at paragraph 2 herein, [X] shall also spend time with the Father on the weekend immediately following the resumption of the school year with such time to occur in Tasmania with the Father to be responsible for all costs associated with such time including the Father’s flight costs.
4. That subject to paragraph 8 herein and unless otherwise agreed between the parties for the purpose of [X] spending time with the Father, [X] will be accompanied on all flights from Launceston, Tasmania to Melbourne by either Ms Pearson (“the Mother”) or her nominee and will be accompanied on all flights from Melbourne to Launceston, Tasmania by either the Father or his nominee.
5. That unless otherwise agreed between the parties the location for handover at the commencement of the Father’s time with [X] shall be the arrivals gate at the Tullamarine Airport, Melbourne and the location of handover at the conclusion of the Father’s time with [X] shall be the arrival gate at Launceston Airport.
6. That subject to Order 8 herein, for the purpose of the Father’s time with [X], the Father and the Mother shall book and pay for their airfares as well as the respective leg of [X]’s flight on which they are accompanying [X].
7. That each party shall provide to the other a copy of [X]'s flight itinerary at least 14 days in advance unless otherwise agreed between the parties.
8. That in the event of [X]’s treating paediatrician recommending that [X] is able to participate in the unaccompanied minor program provided by the airlines and is able to travel independently between Launceston and Melbourne then [X] will commence to travel as an unaccompanied minor in accordance with such recommendation.
9. That once [X] is able to fly unaccompanied for the purposes of the Father's time with [X] the Mother shall book and pay for [X]'s flights from Launceston to Melbourne and the Father shall book and pay for [X]’s flights from Melbourne to Launceston.
10. That in respect of [X]’s flights to and from Melbourne each of the parents shall: -
i. Facilitate and sign all airline documents and follow all such procedures or policies as required by the chosen airline in relation to unaccompanied minors;
ii. Provide to each other at least 21 days prior to the date of departure from Launceston and subsequent return flight from Melbourne the following: -
a) The details of the dates and times of travel booked and paid for by each of the parents;
b) A copy of any documents that have to be completed in order to comply with airline policy for unaccompanied minors;
c) A copy of the booking confirmation and sufficient information to authorise each of the parents to be able to collect [X] from the relevant airline personnel;
d) Ensure that [X] is delivered to the relevant airport gate and the airline personnel in sufficient time to comply with the relevant airline's unaccompanied minors policies or requirements; and
e) Ensure that when they are the collecting parent that they are waiting at the relevant airport gate and comply with all requirements of the relevant airline to collect [X] from the relevant airline personnel;
11. That the parties be and hereby restrained from changing [X]'s current enrolment at [S] School without first obtaining the written consent of the other parent or an Order of a Court of competent jurisdiction.
12. That in the week of 1st February 2015 the parties jointly instruct [X]’s treating paediatrician to undertake a review, assessment and to provide a report the costs of which will be borne equally between the parties that addresses the following issues: -
a) Whether or not [X] has the capacity to travel unaccompanied between Launceston and Melbourne as part of the unaccompanied minor program offered by the airlines Qantas and Virgin or other airlines with unaccompanied minor programs as applicable;
b) Recommendations as to how to implement such an arrangement if [X] is assessed as having the capacity to travel unaccompanied between Melbourne and Launceston; and
c) Recommendations as to when [X] will have the capacity to travel unaccompanied between Melbourne and Launceston if the assessment determines [X] currently lacks the capacity to do so;
13. That for the purposes of obtaining the report detailed in paragraph 13 herein,[1] the Father shall instruct his Solicitor in the first week of November 2014 to prepare a joint letter of instruction addressed to [X]'s treating paediatrician requesting the paediatrician to undertake the assessment, review and to provide the said report.
14. That the Mother shall within twenty one (21) days of a joint letter of instruction being forwarded to [X]’s treating paediatrician book an appointment for [X] with the said treating paediatrician and subsequent to such booking shall provide the Father with at least eighteen (18) days’ notice in advance of the date of the appointment.
[1] It was conceded that this should have referred to paragraph 12 of the orders sought.
15. That both parties be given the opportunity to participate in and attend the assessment process.
16. That the Mother be and is hereby restrained from taking [X] for any further assessments that address whether [X] has the capacity to travel unaccompanied and whether [X] is coping with the number of trips to Melbourne for the purposes of time with the Father without first obtaining the written consent of the Father and/or an order of a Court of competent jurisdiction.
17. That the Respondent Mother pay the Applicant Father’s costs of and incidental to this Application.
On 28 October 2013 the mother filed a Response seeking the following orders:
1. That the Federal Magistrates Court Order dated 17th October 2011 be discharged.
2. That [X] live with his mother.
3. That [X] spend time with his father as follows;
a. On the fifth weekend of Term 1 from Friday after school to Sunday;
b. At the end of Term 1, for the first half of the holidays commencing on the first Saturday of the holidays;
c. At the end of Term 2, for the first half of the school holidays commencing on the first Saturday of the holidays;
d. On the fifth weekend of Term 3 from Friday after school to Sunday;
e. At the end of Term 3, for the first half of the school holidays commencing on the first Saturday of the holidays;
f. At the end of Term 4, for the first half of the school holidays commencing on the first Saturday of the holidays in 2013 and for the second half of the school holidays in 2014 and alternating each year thereafter between the first half and second half of the school holidays;
4. That flights for [X] for the school term contact shall depart Launceston no later than 6.15pm on the Friday and the return flight to depart Melbourne no later than 5pm on the Sunday;
5. That flights for [X] for the school holiday contact shall depart Launceston and Melbourne not before 9am and not after 5pm;
6. The mother’s or the mother’s nominated accompanying person’s flight, when not accompanying [X] will be at a time nominated by the mother.
7. [X] shall be accompanied on all flights by either the father, the mother, the partner of either party, [X]’s grandparent, any sibling of either party or another responsible adult agreed between the parties.
8. The father shall pay for all of [X]’s flights and the accompanying adult’s flights including return flights. If the accompanying person is only accompanying [X] one way then the father shall pay for the accompanying persons return flight.
9. The mother or her nominated person will accompany [X] on the flights for Term 1 contact, Term 1 holiday contact and Term 2 holiday contact with the mother to nominate flight times at least 4 weeks prior to the contact date.
10. If a flight departing Launceston, whereby [X] is being accompanied is delayed more than 1 hour from the booked scheduled time then the flight shall be changed to the next day, not before 9am and in accordance with Order 4 and 5.
11. That [X] will have telephone contact with his father on Sunday night at 5pm, on the noncontact week.
12. That the parent that does not have contact with [X] on his birthday shall have a minimum of 10 minute phone call on the morning of his birthday before 10am with the contact parent to initiate the call.
13. That after [X]’s 12th birthday and in the event that [X]’s treating child psychologist recommends that [X] is able to participate in .the unaccompanied minor program provided by the airlines and is able to travel independently between Launceston and Melbourne then [X] will commence to.travel as an unaccompanied minor in accordance with such a recommendation with the exception that if [X] refuses to fly on any occasion that he will not fly to Melbourne.
14. If from the age of 12 years old [X] refuses to fly to Melbourne to visit his father then he will not be made fly to Melbourne.
15. If in the event that [X] has a semi-final or grand final sporting activity or an important school activity that [X] wishes to participate in and that is the same weekend as his father’s contact weekend Mr Manning will have contact with [X] in Tasmania for one night in order to facilitate [X]’s participation in the sporting or school activity.
16. That the father pay for half of the cost of [X]’s education expenses to be payable to [S] School by the 30th of each month.
17. That the father pay for half of the cost of [X]’s medical expenses and school clothing expenses to be payable to the mother upon the mother providing a tax invoice or medical receipt to the father with the father to pay the amount within 30 days to the mothers nominate bank account or by cheque made payable to the mother.
18. That unless the father is paying for half the cost of the school fees that the mother will have full discretion regarding [X]’s enrolment at [S] or any other school that the mother is paying for.
19. That when [X] is in the care of the mother that the mother will not be constrained from consulting a medical professional about [X]’s physical, emotional or psychological well-being.
20. That the parties meet their own legal costs of and incidental to this Application.
At the start of the hearing the father’s counsel sought to amend orders 11 and 16 that the father was seeking. Those amended orders are as follows:[2]
11. That in the event the mother wishes to change [X]’s school enrolment the mother shall give written notice of and the reasons for the proposed change at least one month in advance of the proposed change and on the giving of notice the parties shall make a genuine effort to consult about the proposed change.
16. That the Mother be and is hereby restrained from taking [X] for any further psychological or medical assessments save and except for [X]’s regular medical practitioner and regular paediatrician (or local thereof) including assessments that address whether [X] has the capacity to travel unaccompanied and whether [X] is coping with the number of trips to Melbourne for the purposes of time with the Father without first obtaining the written consent of the Father and/or an order of a Court of competent jurisdiction.[3]
[2] See Exhibits “H1” and “H2”
[3] Emphasis indicates the amendment
To the father’s credit, he chose not to proceed with a Contravention application that had been filed on 3 September 2013, and that application was dismissed at the start of the hearing.
At first glance, the disputed issues between the parties appear to be relatively complex. However, it is to the credit of both parties that a number of agreements were reached and compromises were made during the hearing, so there was very little dispute between the parties about how often, and for how long [X] is to spend time with his father in Melbourne.
The remaining issues can be summarised as follows:
a)Should the father be ordered to contribute to the payment of [X]’s private school fees, medical expenses and school clothing expenses?
b)When should [X] start flying unaccompanied between Tasmania and Melbourne?
c)Should [X] be able to decide whether or not he will travel to Melbourne?
d)Who should pay the airfares between Tasmania and Melbourne?
The first item listed in the preceding paragraph hereof relates to the financial support of the child and is governed by the provisions of the Child Support (Assessment) Act 1989 (“the Assessment Act”) , whereas the others are parenting matters to be considered under Part VII of the Family Law Act 1975 (“the Family Law Act”).
The Child Support issue
Orders for payment of school fees, medical expenses and clothing expenses are clearly payments that would be “child support otherwise than in the form of periodic amounts paid to the carer” within the meaning of Section 123 of the Assessment Act.
That section provides in part as follows:
(1) An application may be made to a court having jurisdiction under this Act for:
(a) an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b) an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
(2) An application under subsection (1):
(a) may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b) may be made by the carer entitled to child support or the liable parent.
It is clear from the evidence that an administrative assessment is in force in relation to [X], so the mother is able to make an application to the court for “child support otherwise than in the form of periodic amounts”.
However, I note that the section continues:
(3) Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
I am not aware of any pending applications of the type referred to in that subsection. However, I also note that section 123 also states:
(4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the carer entitled to child support and the liable parent.
Section 145 of the Assessment Act provides that the Child Support Registrar “may intervene in, and contest and argue any question arising in, a proceeding under this Act”. I note also that Rule 25A.07 of the Federal Circuit Court Rules 2001 (“the Rules”) provides that applications under the Assessment Act must be served upon the Child Support Registrar at least 28 days prior to the hearing of the application. There are some exceptions under that Rule, but none is applicable in this matter.[4]
[4] See sub-rules (1) and (2)
I have no evidence before me that the Child Support Registrar has been served with the mother’s application for orders that the father pay “for half the cost of [X]’s education expenses to be payable to [S] School” or that he pay “for half the cost of [X]’s medical expenses and school clothing expenses”, so I must assume that the Child Support Registrar has not been served.
While Rule 1.06(1) allows me to “dispense with compliance, or full compliance, with any of [the] Rules at any time”, I may only do so “in the interests of justice”. However, I have been provided with no evidence that it would be in the interests of justice to proceed with an application in relation to Child Support without the Child Support Registrar being made aware of the application in accordance with the Rules. I am therefore not prepared to dispense with the requirement that the mother serve her application upon the Child Support Registrar.
However, as I pointed out to the mother early in the hearing, I would be unlikely to require a parent to contribute to the payment of private school fees when the other parent enrolled the child in the private school unilaterally without consultation. In this case, the evidence is clear that the mother’s enrolment of [X] was after the parents had initially decided against it. I accept the father’s evidence in cross-examination, when he said this:[5]
I think that’s when he was a really young boy, and I told you then that I didn’t think it was for us. It was a lovely school, but different religious philosophy, etcetera, and we both agreed that – and we didn’t pursue that.
[5] Transcript: page 63
I note that neither parent adheres to the religious philosophy of the private school attended by [X].
In relation to the issue of the payment of private school fees, I am aware of the decisions in Mee v Ferguson, Lightfoot v Hampson, Wild v Ballard and F & S.[6]
[6] Mee v Ferguson (1986) FLC 91-716, Lightfoot v Hampson (1996) FLC 92 663, Wild v Ballard (1997) FLC 92 771 and F & S [2003] FMCAfam 531
In the circumstances, I do not consider it appropriate to make orders for the father to contribute to payment of school fees, medical expenses and clothing expenses as sought by the mother. However, that is not to say that I cannot take the mother’s payment of those expenses into account when determining the question of who should pay for airfares in relation to [X]’s time in Melbourne with his father. I shall refer to that further below.
Legal principles - Parenting orders
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act. The court must consider the best interests of the child as the paramount consideration.[7]
[7] Section 60CA
Section 60B sets out the objects of Part VII of the Family Law Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [8]
[8] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[9]
[9] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[10]
[10] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[11]
[11] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[12]
[12] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[13] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[14] In this regard, Murphy J said:
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use. [15]
[13] Section 61DA
[14] Subsection 61DA(4)
[15] See Runcorne & Raine [2008] FamCA 837 at paragraph 24
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[16]
[16] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[17]
[17] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[18] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[19] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s.65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a court to consider making an order as described in s.65DAA(1)(c).[20]
[18] MRR v GR (2010) FLC 93-424
[19] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[20] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[21]
[21] See KB & TC (2005) FLC 93-224
Discussion
The previous orders made by consent on 17 October 2011 provided that:
·the parties would have equal shared parental responsibility for [X];
·he would live with his mother; and
·he would visit his father in Melbourne on a regular basis.
There is really no intention by either party for any real change to that. Although the mother did not specifically seek an order for equal shared parental responsibility in the Response, that was clearly an oversight accepted by counsel for the father to be “just a drafting error”.[22]
[22] Transcript: Page 138
In those circumstances, it is not necessary for me to consider all of the factors under section 60CC of the Family Law Act in great detail. However, the parties appear to be in agreement that the previous orders should be discharged and be “re-written” so that all applicable orders are in one document.
When should [X] start flying unaccompanied?
Both Qantas and Virgin Australia allow children between the ages of 5 and 11 years to travel as unaccompanied minors provided that appropriate arrangements are made with the airline beforehand. Although [X] fits into that age group, he is generally considered by both parents to be different from most children because of his Asperger’s and ADHD. They were clearly mindful of that when the previous orders were made.[23] In his trial affidavit for this hearing the father said:
12. In June 2011, a report authored by Dr C who undertook an assessment of [X] indicated at that time the risks for [X] flying unaccompanied were too high to be in [X]’s best interests given the particular stage of his development. Dr C expressed the opinion that it would be:-
“... better to wait for further emotional and psychological maturity prior to considering this question again. While I cannot provide a definitive answer to when such consideration should be, I would certainly feel that the matter could be revisited around or before his 10th birthday for further assessment”.
13. Similarly, [X]’s treating paediatrician at the time, Dr D also expressed concern regarding the appropriateness of [X] flying unaccompanied in 2011.
[23] See Notation 1 to the previous orders
It is clear that the parties had not reached agreement about the issue by the time of the hearing before me. In short, the father wanted to set in train a process to obtain an opinion from [X]’s treating paediatrician (Dr S) as to when it would be appropriate for unaccompanied travel to start, whereas the mother was of the opinion that it should not start before [X]’s 12th birthday and then only if recommended by his treating psychologist (Dr C). The mother clearly favoured the psychologist’s opinion over that of the paediatrician. Her words were:
For me, that’s a psychological question and more than a paediatrician question …[24]
[24] Transcript: page 109
No evidence was given by either health professional, but it is my view that if such an opinion is required by either parent or by the Court, it should be provided by his paediatrician. I say that, not only because the paediatrician has specialist medical qualifications, but also because he can consult with [X]’s psychologist and teachers, if that is needed. I also note that [X] was referred to the psychologist, Dr C by his previous paediatrician who has since retired.
During closing submissions by the father’s counsel, I raised the possibility that it may be better to deal with this issue by not putting a procedure for review in place, but rather making an order that at a particular time in the future [X] would travel unaccompanied unless one of the parties opposed that and produced appropriate expert evidence. I raised that option because I considered the process suggested by the father to be somewhat onerous and that it could provide numerous opportunities for the parties to disagree about the issue. In general, the parties were not opposed to my suggestion. However, the father instructed his counsel that [X]’s unaccompanied travel should start in February 2015, whereas it was the mother’s view that it should not start until December 2015 (when [X] is 12). [25]
[25] Transcript: at page 150, 151 and 163
Even though [X]’s flights between Tasmania and Melbourne are only for approximately one hour without any stopovers, it is my view that the mother’s timetable in relation to that is more appropriate in the circumstances. It will give [X] time to get used to the concept and provide both parents a reasonable opportunity to assess how [X] is coping. Further, if either parent (and I anticipate that it would be more likely to be the mother) wishes to obtain an expert report from [X]’s paediatrician to persuade the other parent or the Court that unaccompanied travel is not in [X]’s best interests, there will be sufficient time for that also.
Should [X] be able to decide whether he will travel?
The mother seeks an order that if “from the age of 12 years old [X] refuses to fly to Melbourne to visit his father then he will not be made fly to Melbourne”.
Section 60CC(3)(a) requires the court to consider “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views” but it does not mandate a particular age at which children can make decisions that override court orders. It would therefore be most inappropriate to anticipate in advance what weight should be given to [X]’s views from the date on which he turns 12. Consequently, I will not be making such an order.
Who should pay [X]’s airfares?
The previous orders provide that, on an interim basis, the father shall pay all airfares for [X] and any accompanying person, but also that either party has liberty to apply “as to the question of contribution by the mother to the costs of airfares of [X] and/or the accompanying person”.[26] The father explained how that arose in his affidavit as follows;
44. The background to Order 8 is that at the time of this Order being made, [the mother] had deposed in an Affidavit she filed with the Federal Magistrates Court on 12th October 2011 that her contract of employment was to cease on 30th December 2011 and thereupon her annual income would reduce to $12,000.00. She further deposed that she was unsure of her “future employment prospects” but that if she had an income above $45,000.00 she would be willing to pay for two one way trips for [X] to travel to Melbourne accompanied by either herself, a member of my family or another person that we agreed to.
45. Due to [the mother]’s potential financial circumstances as detailed above, I agreed on an interim basis that I would bear the financial burden of airfares for [X] and the accompanying person…..
[26] Orders 8 and 10
One of the “additional considerations” under Section 60CC of the Family Law Act is “the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”[27] and that is clearly relevant in this matter. The parties have agreed that [X] is to visit Melbourne from Tasmania eight times per year, so that involves some significant expense in relation to [X]’s airfares. Until at least December this year, that will also be increased by the airfares of accompanying responsible adults. It therefore does not surprise me that the father calculated “the airfares and associated travel expenses” to be an annual sum of approximately $13,000.[28]
[27] Subsection (3)(e)
[28] Paragraph 48 of his affidavit
Both parties financial circumstances have changed quite significantly since the previous orders were made. They now both have similar incomes between $90,000 and $100,000 per annum. However, the father is essentially responsible for supporting himself, his wife and three children. He sets out in paragraphs 50 to 53 of his affidavit how his expenses were expected to increase and family income reduce as a result of the expected birth of another child in December 2014. I do not need to repeat them here, because they were not seriously challenged.
On the other hand, the mother is responsible for supporting herself and [X] from her income and the Child Support that she receives from [X]’s father. The mother’s husband earns approximately $120,000 per annum.
I appreciate that the mother is fully responsible for the payment of [X]’s private school fees, but I am of the view that those extra expenses are offset by the father’s increased expenses of having a larger family. Further, I note that the mother is effectively “subsidising” her husband’s living expenses because she is responsible for meeting the mortgage payments and other expenses in relation to the home that he shares.
When I take these factors into account, I conclude that it is appropriate for the parties to equally share the costs of airfares associated with [X] spending time with his father in Melbourne.
As I have noted above, the parties have agreed that [X] should visit his father on eight occasions during the year. It is therefore appropriate that each parent pay for four return trips. In my view, that can be best accommodated by the father paying for the weekend visits during the school terms and the mother paying for the school holiday visits, which will give them each the opportunity to obtain the best available fare. I also note that the parties have agreed that there should be 14 days’ notice for the provision of itineraries,[29] so I shall incorporate that into the orders.
[29] Transcript: Page 46
The orders
The orders that I make are set out the start of these Reasons. In some instances I have repeated orders from the previous orders, with some minor changes in wording to suit my personal drafting style.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 29 January 2015
Key Legal Topics
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Family Law
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