Masson & Parsons

[2016] FamCA 142

FAMILY COURT OF AUSTRALIA

MASSON & PARSONS AND ANOR [2016] FamCA 142

FAMILY LAW – CHILDREN – Interlocutory Application – Where a raft of orders were made by consent – Where certain other interim orders were made by determination of the Court after submissions

APPLICANT: Mr Masson

RESPONDENTS: Ms S Parsons &
Ms M Parsons

FILE NUMBER: SYC 3963 of 2015

DATE DELIVERED: 3 March 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Steiner Legal

COUNSEL FOR THE RESPONDENTS: Ms McMahon

SOLICITOR FOR THE RESPONDENTS: McDonald Johnson Lawyers

It is ordered that

1. That the First Respondent Ms S Parsons and the Second Respondent Ms M Parsons are henceforth to be the party known as “the Respondents”.

Pending further order, it is ordered that

1. BY CONSENT I make Orders in accordance with a document titled “Masson & Parsons” being paragraphs 1 to 3, 4.1., 4.1.1, 5 to 8 inclusive, 11 to 14 inclusive, 18 to 20 inclusive, 24 to 26 inclusive, marked Annexure “A” and attached hereto:

2.1    That the matter be expedited for final hearing.

2.2    That an Independent Children’s Lawyer be appointed.

2.3    That a “Family Report” be prepared in respect of, inter alia;

a.The children’s views and wishes concerning the matters in dispute between the parties.

b.Recommendations concerning spend time with arrangements between the children and significant others.

c.Recommendations concerning parental responsibility.

To this end, persons of significance are at liberty to attend upon the family consultant at times and dates directed by the family consultant and are to ensure the children attend at times and dates directed by the family consultant.

Parties are to finalise the terms of reference for the above report within 7 days and if consent is unable to be reached, liberty to relist on this issue.

2.42.4.1   That pending further Orders and unless otherwise agreed between the parties, the children will spend time with the Applicant commencing on the date of the Order:

2.4.1.1During school term; each alternate week from 3.00 pm or after school on Friday to 4.00 pm on the next following Sunday.

Travel

2.5That the children be permitted to leave the Commonwealth of Australia to accompany the Respondents on a holiday to New Zealand for the period between 4.00 pm 23 July 2016 and 8 August 2016, provided they first comply with Orders 6 and 7 of these Orders.

2.6That the Respondents shall furnish the Applicant with an itinerary to include the departure and return dates of when and where the children will be travelling, copies of return airline tickets and telephone numbers and addresses at which the children can be contacted whilst they are travelling.

2.7That the Respondents shall deposit fifteen thousand dollars ($15,000.00) into the Applicant’s solicitor’s trust account at least 14 days prior to the agree date of travel.  Such funds will be returned to the Respondents within 14 days of the children’s return to Australia.

2.8That the Applicant will not seek an Order for the immediate return of the children in the event of their departure from New Zealand being delayed by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the Respondents’ control.

2.11That except as provided for in these Orders, the children shall not leave the Commonwealth of Australia with either party.

2.12That until further Order of the Court the Respondents’ solicitor will hold the children’s passports and not release such passports to either party unless travel is in accordance with these Orders.

2.13That the parties be restrained from commencing or proceeding with any application for a passport for the children from the Australian Government Department or Agency which issues or has the power to issue passports or the consulate or any other appropriate authority of any other country.

2.14That each party is restrained by injunction from raising, suggesting or discussing the evidence in these proceedings, in particular, any issue in dispute in these proceedings, such as any relocation, in the presence of, or directly with, the children.

2.18That the parties are restrained from moving to a location in excess of
20 km of each other’s residence unless otherwise agreed.

2.19That each party will advise the other of any change of telephone number or residential address within 24 hours of such change occurring.

2.20That when the children spend time with the Applicant in Newcastle, the children shall spend the night at the Applicant’s residence in Suburb D.

2.24All parties shall ensure that they refrain from making negative remarks about the other parties or significant others in the presence or hearing of the children and shall ensure that no other person does so in the presence or hearing of the children.

2.25The usual spend time with periods provided for in these Orders are suspended during any school holiday periods and shall resume the first week following the commencement of school term.

Emergency travel to New Zealand

2.26In the event of a critical deterioration of Ms S’s parents’ health and/or death, the children will be permitted to travel to New Zealand on an emergency basis.

The Respondents will notify the Applicant by text to advise that emergency travel is required and the reason why.

The Respondents will provide an itinerary and the Applicant as soon as practicable and within 24 hours.

The Respondents’ solicitor will hold $15,000.00 in her trust account before releasing the children’s passports to the Respondents.

The children will be returned to Australia within a period of 2 weeks.

The Applicant may contact the children if time away on an emergency basis falls on his alternate weekend.  He may contact the children on Ms S’s mobile phone.

It is further ordered that

1. Further to Order 4.1.1 the children shall spend time with the Applicant:

3.1     During the Autumn school holidays from 9.00 am on 8 April 2016 to 4.00 pm on 13 April 2016;

3.2    During the Winter school holidays from conclusion of school on Friday 1 July 2016 until 4.00 pm on 6 July 2016;

3.3    During the Spring school holidays from 9.00 am on 4 October 2016 to 4.00 pm on 9 October 2016.

Mother’s Day

1. In the event that the children are spending time with the Applicant during the weekend on which Mother’s Day falls then time is suspended from 6.30 pm Saturday for the balance of the weekend period.

Father’s Day

1. In the event that the children are not due to spend time with the Applicant on the weekend of Father’s Day then the children shall spend time with him from 9.00 am to 5.00 pm on that day.

Specific Issues

1. That the Applicant may attend any event to which family and friends are invited at the children’s school, provided that he advises the Respondents in advance of his intention to attend.

2. That when the children are travelling away from the Newcastle area with the Applicant the parties shall ensure that C has her mobile telephone.

3. On any occasion when the Applicant takes the children out of the Newcastle area he shall provide the Respondents in advance details of destination, accommodation and contact details.

4. That the Applicant and the Respondents shall facilitate and permit any request by the children or either of them to telephone the other party/parties.

5. The Court requests that the Australian Federal Police remove the names of the children

   B   Female         Date of Birth:  … 2007

   C   Female         Date of Birth:  … 2008

   from the Airport Watch List at all points of international arrivals and departures in Australia.

6. The Application in a Case filed 29 January 2016 and the Response to an Application in a Case filed 26 February 2016 are otherwise dismissed.

7. That the matter be listed for Orders and directions on 22 March 2016 at
   9.30 am in relation to:

   a.Preparation of a Family Report or Single Expert Report pursuant to Order 2.3; and

   b.Allocation of hearing dates if considered appropriate.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 3963 of 2015

Mr Masson

Applicant

And

Ms S Parsons & Ms M Parsons

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

introduction

1. This is an application which appeared before me in the duty list yesterday. 

2. There is an Application in a Case filed by the applicant, Mr Masson, and a Response to an Application in a Case filed by the respondents, Ms S Parsons and Ms M Parsons. 

3. The applications are determined in the context of the two children living with the respondents, who have day-to-day authority for them.  Who has parental responsibility and who should have it in the future are issues for final hearing. 

4. On 2 March 2016, quite an extensive raft of Orders were made by consent. 

The Issues

1. The issues that remain to be determined are as follows. 

The term holidays for the children during 2016

1. That issue was determined by a concession made during the course of submissions by counsel that the respondents were open to holidays for the children in each of the three terms for periods of five days in April, July and October. 

2. Orders have been made accordingly.

Special occasion time

1. On the basis that the respondents have the decision-making about arrangements for the children through the week and in holiday times, I have made no provision in the Orders for time with the children on their birthdays.  Both those birthdays fall on weekdays and can be celebrated on the closest weekend. The children are young and there is no need for two celebrations on a school day evening for such young children. 

2. Mother’s Day has been determined virtually by consent: that if the children are with the applicant on that weekend, the time is suspended from 6.30 pm on Saturday for the balance of the period. 

3. Father’s Day is determined as 9.00 am to 5.00 pm on the day of Father’s Day in the event that the children are not otherwise with the applicant.

Overseas travel

1. It appears to me to be premature for there to be any order being made about the possibility of the children travelling overseas with the applicant and I have concluded that the children be removed from the Australian Federal Police Watch List to facilitate travel for them with the respondents to New Zealand from time to time, in accordance with these Orders. 

2. The respondents’ sought an order for the children to be removed from the Watch List.  I have taken that course.

3. The purpose and intent of the Watch List is to ensure that children are not removed from the Commonwealth of Australia without the knowledge of a relevant parent.  There is provision in these Orders for the children to travel at particular times and also on short notice in certain kinds of circumstances. 

4. It would be likely to cause difficulty for the parties and disruption for the children in constantly making arrangements for the order to be lifted and imposed.

Attending school events

1. Provision has been made for the applicant to attend events at the children’s school; provided he lets the respondents know that it is his intention to do so.

2. It is important for the stability of the children that the respondents have some sense of orderly control over events in the children’s lives and can make their plans accordingly.

3. It will be a matter for the applicant to use his own judgment about including others in such events, unless they are well-known to the children and that their presence would be truly appreciated. 

Travelling and communication

1. I have simply made provision that if the children are travelling with the applicant, then “C’s mobile” should be present with C for that travel.

2. An Order is made for the applicant to let the respondents know where the children will be if they are travelling with him outside the Newcastle area when they are spending time with him.

3. It is a matter for the applicant and the respondents to focus on the interests of the children in terms of communication.  Provision is made for an Order that the parties will assist the children, or either of them, to make a telephone call, if they wish, to the other party or parties.

Restraints

1. In relation to the final matter, which is order 15 sought by the respondents, I have declined to impose those restraints which, in my view, would draw attention to the children in an adverse way if it was to be inferred by their friends and members of the school community that the applicant was no longer representing himself as the children’s father. 

2. It is a matter for the applicant to conduct himself in a way that is appropriately respectful of the respondents’ authority, their need to know what the children are doing and the significance of events being arranged by him for their benefit. 

3. I do not consider it would be appropriate to wind back the existing involvement of the applicant in school committees and so on.  There is a benefit to the children indirectly of such a supportive association with the school.

4. The applicant should not approach the principal without prior notice and, indeed, the consent of the respondents.

5. Of course, if they invited him to be involved in any issue involving either of the children, then it would be a matter for him to take up that invitation. 

Conclusion

1. The Orders have been made to reflect what was consented to and what I have just described in these short reasons.

2. Otherwise, the matter is to be brought back on 22 March 2016 at 9.30 am for orders and directions in relation to whether there should be the preparation of a Family Report or consideration of a Single Expert report pursuant to the Order that has been made and the allocation of hearing dates, if it were to be considered appropriate at that stage.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

3 March 2016.

Associate: 

Date:  9 March 2016