Melson & Divjak
[2021] FamCA 622
•24 August 2021
FAMILY COURT OF AUSTRALIA
Melson & Divjak [2021] FamCA 622
File number(s): MLC 6164 of 2018 Judgment of: MCEVOY J Date of judgment: 24 August 2021 Catchwords: FAMILY LAW – CHILDREN – Where orders were largely made by consent – Where the outstanding issues in dispute included minor differences as to the time the children would spend with the father, the changeover location, schooling for the children and overseas travel while COVID-19 restrictions remain – Where orders made substantially in the terms sought by the father. Legislation: Family Law Act 1975 (Cth) Cases cited: In the Marriage of Paisio & Paisio (1979) FLC 90-659
Koyroyshs & Koyroyshs [2020] FamCA 626
P & L [2006] FamCA 947
Quincy & Quincy [2021] FamCA 14
Sinclair & Sinclair [2020] FamCA 1054
Yung & Duan (No. 2) [2021] FamCA 428
Number of paragraphs: 36 Date of hearing: 17 - 19 August 2021 Place: Melbourne Counsel for the Applicant: Mr McIvor Solicitor for the Applicant: Berry Family Law Solicitor for the Respondent: Mr Rothschild ORDERS
MLC6164/2018 BETWEEN: MR MELSON
Applicant
AND: MS DIVJAK
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
19 AUGUST 2021
BY CONSENT IT IS ORDERED THAT:
1.The parties have equal shared parental responsibility for the children X and Y both born … 2017 ("the children").
2.The children live with the mother.
3.The children spend time with the Father as follows:
(a)Until the second Friday of the Victorian school term one in 2022, in a fortnightly cycle as follows:
(i)Commencing 27 August 2021 in week one of the fortnightly cycle each alternate weekend from 6:00pm on Friday or one hour prior to the Jewish Sabbath (whichever is the earlier) until 5:00pm on Sunday.
(ii)In week two of the fortnightly cycle (commencing 19 August 2021) from 6:00pm Thursday until 5.00pm or one hour prior to the Jewish Sabbath (whichever is earlier) Friday; and
BY THE COURT IT IS ORDERED THAT:
(b)From the second Friday of the Victorian school term one in 2022; in a fortnightly cycle as follows:
(i)In week one of the fortnightly cycle (commencing on the second Friday of term one) from 3:30pm on Friday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii)In week two of the fortnightly cycle from conclusion of school or if a non-school day 6.00pm on Thursday (calculated as having commencing on the third Thursday of term one) until conclusion of school or otherwise, if a non school day one hour prior to the Jewish Sabbath or 5pm (whichever is earlier) on Friday.
(c)From the second Thursday of the Victorian school term one in 2023; in a fortnightly cycle as follows:
(i)In week one of the fortnightly cycle (commencing on the second Thursday of term one) from 3:30pm on Thursday (or if a school day, the conclusion of the school day) until 9:00am Monday (or if a school day, the commencement of school); and
(ii)In week two of the fortnightly cycle from 3:30pm on Thursday (calculated as commencing on the third Thursday of term one) (or if a school day, the conclusion of school) until conclusion of school or otherwise if a non-school day one hour prior to to the Jewish Sabbath or 5pm, whichever is earlier on Friday.
Jewish religious holidays and special occasions
4.That notwithstanding any of the provisions of Orders 3 and 6 hereof, the children spend time with the Father as follows:
(a)In each year, during the following Jewish religious festivals, as follows:
(i)Pesach (Passover), for two nights;
(ii)Shavuot (Pentecost), for two nights;
(iii)Sukkot (Tabernacles), for two nights;
(iv)Simchat Torah, for one night;
(v)Purim, for one night; and
(vi)Rosh Hashana (New Year), for two nights;
Such time to commence from 5:00pm, or 1 hour prior to the commencement of the festival, (whichever time is the earlier) from the eve of the first day of the festival and extending until 6:00pm, or 30 minutes after the conclusion of the festival (whichever is the later), which time shall be additional to the provisions set out in Order 3.
For the avoidance of doubt should any of the Jewish religious days fall on a day when the Father shall be spending time with the children pursuant to Order 3, the time pursuant to Order 3 shall not be suspended.
BY CONSENT IT IS FURTHER ORDERED THAT:
(b)On the Father's birthday (…) from 6.00pm (or the conclusion of school/kindergarten if a school/kindergarten day) on … until 9.00pm (or one hour prior to the Jewish Sabbath should the birthday fall on a Friday) on ….
(c)On the children’s birthday (…); if the children are in the mother’s care, from 4:30pm until 7:30pm save that if the children shall be spending time with the Father then his time shall be suspended from 4:30pm until 7:30pm.
(d)On Father's Day in each year from 6:00pm on the eve of Father's Day until 7:30pm on Father's Day, save that once the children shall commence school then until 9:00am on Monday (or if a school day, the commencement of school).
5.That notwithstanding any of the provisions in Orders 3 and 6 hereof, the children spend time with the Mother as follows:
(a)On the Mother's birthday (…) from 6.00pm or the conclusion of school if it is a school day on … to 9.00pm on …;
(b)On Mother's Day in each year from 6:00pm on the eve of Mother's Day until 7:30pm on the day of Mother's Day save that once the children shall commence school then until 9:00am on Monday (or if it is a school day, the commencement of school).
BY THE COURT IT IS FURTHER ORDERED THAT:
(c)In each year, for the following Orthodox Christian religious festivals;
(i)Christmas Eve on 6 January;
(ii)Christmas Day on 7 and 8 January;
(iii)St Stephen’s day;
(iv)13 to 14 January; Orthodox New Year;
(v)The Easter Weekend, from 10:00 am in the morning on Good Friday until 6:00 pm in the evening on Easter Monday; and
(vi)St Georges’ Day.
School holidays
6.That the children spend time with the father during school holidays as follows:
(a)During the children's first year of school (Prep) the children spend one block of 5 nights with the Father during each of term one, term two and term three school holidays from 5:00pm on the first Tuesday until 5:00pm on the following Sunday;
BY CONSENT IT IS FURTHER ORDERED THAT:
(b)During the first summer school holidays (conclusion of Prep) from 4:00pm on the first Friday of the school holidays until 4:00pm on the next following Wednesday and each alternate week thereafter (and for the avoidance of doubt, the first Friday of the school holidays shall be regarded as the first day of the school holidays).
(c)Commencing from the beginning of grade one and each year thereafter, during each of the term one, term two and term three school holidays, from the conclusion of school on Friday of the last week of term until 6:00pm (or 30 minutes after the conclusion of the Sabbath, whichever is the later) on the mid Saturday.
(d)Commencing from the conclusion of the grade one school year, during the summer school holidays from 4:00pm on the first Friday of the school holidays in even numbered years and from 4.00pm on the second Friday in odd numbered years until 4:00pm on the next following Friday and each alternate week thereafter (and for the avoidance of doubt, the first Friday of the school holidays shall be regarded as the first day of the school holidays); and
BY THE COURT IT IS FURTHER ORDERED THAT:
(e)Commencing from the conclusion of the grade three school year and thereafter, for half of the long summer holidays each year, as agreed and failing agreement, the second half, from 4.00pm 11 January to 4.00pm 27 January.
BY CONSENT IT IS FURTHER ORDERED THAT:
7.For avoidance of doubt the time pursuant to Order 3 shall be suspended during all Term holidays and shall recommence at the beginning of the following term as if the term holidays had not occurred.
8.The children spend such other time with the father as the parties may agree.
Changeover
9.That changeover take place as follows:
(a)On a school day when the children shall be attending at school, at the children's school.
BY THE COURT IT IS FURTHER ORDERED THAT:
(b)If not a school day or in the event that the children shall not be attending school on that day, then:
(i)At the commencement of time with the father changeover shall take place at the 7 Eleven store at B Street, Suburb C, or the father’s residence, at the mother’s election; and
(ii)At the conclusion of time with the father changeover shall take place at a suitable service station proximate to the mother’s residence or at the mother’s residence, at her election.
BY CONSENT IT IS FURTHER ORDERED THAT:
(c)For the avoidance of doubt, the expression "school" includes crèche and kindergarten and the expression "if not a school day" means a day that the school was closed for students or a day that the children or either of them shall not be at school.
Communication
10.The parties may communicate with each other on issues relating to the children via SMS, WhatsApp, Skype, email, phone or other agreed electronic medium.
General
11.In the event that either party withholds the children or any one of them from the other by reason of ill health, the first party must provide a doctor's certificate to the other party within 24 hours specifying that the child or children were too ill to spend time with the other party and the medical reason for that opinion; and in the event that such doctor's certificate is not provided, the other party will have make up time equal to the time forgone on the weekend or day(s) of their choice, such choice to be notified to the first party within 2 days of the weekend or day(s) of the other party’s choice.
12.Each party do all acts and things and sign all such documents as may be required to keep the other advised of any medical or health issues relating to the children or any one of them including but not limited to providing particulars of any medication that has been prescribed to the children and ensuring that the medication is provided to the other party at changeover, together with the name and contact details of the treating doctor.
13.In the event that the children or any one of them has any significant injury, medical condition, serious non-routine medical issue or is hospitalised, the parent with whom the children are with at the time must, as soon as practicable, notify the other parent and provide details of the medical issue, the name of the children's treating medical practitioner, dental or other health specialist and each party is permitted to liaise directly with such treating medical practitioner, dental or other health specialist in relation to the children’s health and welfare.
14.In the event of a medical emergency where one party is not contactable, the parent with whom the children are with at the time may give permission for the children to receive the recommended medical treatment and must notify the other parent as soon as practicable.
15.The parties must advise the other as to details of the children’s treating medical, dental and/or allied health professionals including the name and contact details so that each party may liaise with the same and obtain copies of reports at their own expense.
16.In the event that any party makes an appointment for the children to see or consult with a medical, dental or allied health professional, then the other party must be provided with particulars of that appointment as soon as practicable so as to allow the other party to attend.
17.Each party, by themselves, their servants and agents is restrained from taking the children to any psychologist, counsellor, therapist or similar practitioner without the written consent of the other party or order of a Court save that the parties may comply with any reasonable directions by the children's general medical practitioners or school to be referred to such professional and must inform the other party of any such appointment as soon as practicable.
18.Each party be at liberty to provide a copy of these orders to:
(a)The children's medical practitioners and/or health professionals;
(b)Such school or kindergarten or crèche as the children shall attend.
19.Each party be permitted to:
(a)Obtain copies of the children's medical, counselling, dental and health records;
(b)Consult with each of the children’s medical, consulting, dental and health practitioners.
20.The parties by themselves, their servants and agents be restrained from enrolling the children in any extracurricular activities that shall impinge or infringe upon the other party's time with the children without the written consent of the other party.
21.Should the children have any birthday party invitation or similar where such party or event shall take place when the children shall be living with the other party, then the party in receipt of the invitation must provide a copy of the invitation to the other party as soon as practicable and advise the other party in the event that the invitation shall not be in writing and the parent caring for the children shall facilitate the children attending such party or event.
22.Each party must notify the other party of the children's crèche, play-group, kindergarten, school, sporting and extracurricular activities.
23.Each party be permitted to obtain copies of all crèche, kindergarten and school notices or other reports and any other communication from the children’s crèche, kindergarten or school and shall have full access to any portal.
24.Each party be permitted to attend any of the children's sporting events, crèche, kindergarten and school events, parent teacher interviews or similar save that each party may arrange their own separate parent teacher interview.
BY THE COURT IT IS FURTHER ORDERED THAT:
25.The parties by themselves, their servants and agents be restrained from denigrating or insulting the other party or the other party's family (including but not limited to referring to the father as “F”) or permitting any person to denigrate or insult the other party or the other party's family in the sight, presence or hearing of the children including by social media, text message or other communication that the children may be able to access.
BY CONSENT IT IS FURTHER ORDERED THAT:
26.Each party must within 7 days advise the other of their telephone number, email address or residential address (save that the mother may advise the suburb rather than the particulars of her address) and must within 24 hours of such change advise particulars of that change.
27.Each of the parties must encourage the children to develop a relationship with the other party independent of how that party feels about the other party.
28.The parties be restrained from exposing the children to passive smoking, excessive alcohol use, substance abuse, violence or sexual activity.
29.Each party must return to the other party at the commencement of the next period any clothing, toys or other items purchased by the other party for the children unless otherwise advised in writing and for the avoidance of doubt the expression "in writing" includes email and text messages.
BY THE COURT IT IS FURTHER ORDERED THAT:
30.Further to Order 1, no later than 30 June 2022 the parties each advise the other of the school(s) that they propose the children attend in 2023 and thereafter they use their best endeavours to reach agreement as to which school the children shall be enrolled at.
Overseas Travel
31.The parties each have liberty to apply with respect to overseas travel with the children, provided that either:
(a)There are no extant Government Restrictions on International Travel associated with the COVID19 pandemic; or
(b)The party making such application has obtained all necessary Exemptions for such proposed travel.
32.Until further Order each of the mother MS DIVJAK born … 1977 and the father MR MELSON born … 1965, by themselves, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal X and Y both born … 2017 ("the children") from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the children’s names on the Family Law (Airport) Watchlist in force at all points of arrival and departure from in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the court orders their removal.
33.As soon as practicable the Court forward a copy of this Order to the Australian Federal Police.
BY CONSENT IT IS FURTHER ORDERED THAT:
34.All previous parenting orders be discharged.
BY THE COURT IT IS FURTHER ORDERED THAT:
35.All extant applications be dismissed.
36.The final day of hearing on 20 August 2021 be vacated.
IT IS NOTED THAT:
A.The father has no objection to the children attending language classes whilst in the mother’s care.
B. Pursuant to Section 62B and Section 75DA(2) of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in annexure A and those particulars are to be included in the orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melson & Divjak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION
The parties to this proceeding are Mr Melson and Ms Divjak. The parties commenced their relationship around December 2015. They never married, and lived together only for a short time from sometime between January 2016 and January 2017 until around April 2018 when they separated. There are two children of the relationship: X and Y, twins, both born in 2017 and aged 4 years old.
The father commenced proceedings in June 2018. He initially sought parenting orders, but ultimately sought both parenting and property orders in accordance with his amended initiating application filed 15 October 2020. The mother ultimately sought orders in accordance with her amended response to initiating application filed 1 August 2021.
At the conclusion of the first day of the trial the parties compromised the property aspects of the proceeding, and I made final orders by consent. Although the parties were then able to compromise most parenting aspects of the proceeding, by about midday on day three of the trial it had become clear that there was limited utility in further negotiations. By that time counsel for the father had circulated a draft minute of order, much of which seemed to be agreed, together with a list of some 11 issues which remained in dispute. There was a lack of clarity as to the mother’s position in relation to each of those issues, and indeed whether there were still further issues in dispute from the mother’s perspective. Unhelpfully, the position articulated by the mother’s solicitor, who appeared on her behalf, was that he had not been able to obtain instructions from the mother in relation to all outstanding matters.
In all the circumstances I determined that after allowing the mother’s solicitor further time to obtain instructions, the preferable course was to hear the parties in relation to the father’s proposed minute of order and the issues which were said to be in dispute. In doing so the mother’s solicitor conceded certain issues and also indicated the mother’s consent to many of the orders contained in the father’s proposed minute. Ultimately I made orders substantially in accordance with the father’s proposed minute, and those orders are as set out at the commencement of these reasons. It will be observed that many of those orders are made with the consent of the parties.
Insofar as there were issues in dispute and it has been necessary to make orders which were not by consent, I set out below my reasons for preferring the orders proposed by the father. Where the mother proposed the making of further orders, which I declined to make, my reasons for declining to make such orders are also set out below.
MATERIAL RELIED UPON
The father in his case outline dated 13 August 2021 specified that he relied upon the following documents (including in relation to property matters):
a.Further Amended Initiating Application filed15th October 2020;
b.Trial Affidavit of Mr Melson filed the 30th June 2020;
c.Affidavit in Reply by Mr Melson filed 10th August 2021;
d.Affidavit of Ms D filed 30th June 2021;
e.Amended Financial Statement of Mr Melson filed 10 August 2021;
f.Affidavit of Ms G filed 10th August 2021;
g.Affidavit of Ms E (Family Report) filed 9th August 2021;
h.Affidavit of Mr H (Valuation) filed 5th August 2021;
i.Affidavit of Mr J (Valuation) filed 11 August 2021;
j.Affidavit of Mr K filed 17th July 2020;
k.Affidavit of Mr L filed 17th July 2020.
The mother in her case outline filed 16 August 2021 specified that she relied upon her response to further amended initiating application, her trial affidavit and her financial statement all filed 1 August 2021. The mother relied on these documents in relation to both property and parenting matters.
ISSUES IN DISPUTE
The Pool Fence
The first of the issues which remained in dispute concerned the pool fence at the father’s place of residence. The mother’s position was that the father’s time with the children should be contingent on him installing a permanent pool fence and the provision of a certificate by an independent pool inspector. The father’s position was that there is already a suitable pool fence in existence, which complies with the local law.
I am satisfied by reference to the certificate issued by the City M Council which is exhibit B to the father’s affidavit of 10 August 2021 that the existing pool fence at the property has been certified to constitute a barrier which complies with the applicable barrier standard for that municipality. I have also had regard to the photographs which comprise exhibits 3 and 4 to the mother’s affidavit of 1 August 2021. It is apparent that the pool fence is substantial, and aside from the mother’s assertion to the contrary there is nothing to suggest that the pool fence featured in those photographs is not adequate for the safety of the children. For these reasons it would not be appropriate to accede to the mother’s application that the father’s time with the children be contingent on him installing a more permanent pool fence.
Alternate weekend time with the Father (Orders 3(b) and 3(c))
Also in dispute was the duration of the father’s alternate weekend time with the children in 2022 and the changeover time if the children are not at school. The father seeks that his time in 2022 conclude on Monday morning, while the mother’s positon is that it would be preferable for the children’s time with the father to conclude on the Sunday evening. The father also seeks that if the children are not at school, their time with him should commence at 3:30pm on the Friday, while the mother seeks that this time commence at 6.00pm on a non-school day. The mother says that she hopes to obtain employment and for this reason a 6.00pm changeover time at the commencement of time with the father on a Friday and a Sunday evening changeover at the conclusion of time will be easier for her to facilitate should she be working.
I accept that the father’s position in relation to the conclusion of his time, namely that the children should be returned to the mother or to school or kindergarten at 9.00am on the Monday morning, is consistent with the recommendation of Ms E in paragraph 126 of her second family report which is exhibited to her affidavit of 8 August 2021. Paragraph 126 is in the following terms:
From the commencement of school 2022, [the children] spend time with their father each alternate weekend from the conclusion of school/childcare Friday until the commencement of school/childcare Monday and for a night in the alternate week from the conclusion of school/childcare until the commencement of school/childcare the following day.
The mother through her solicitor says that she will not be sending the children to kindergarten in 2022 due to the cost. She maintains that Ms E’s recommendation in paragraph 126 is predicated on the children actually being at school or in childcare in 2022 and ought not be regarded as a recommendation which would be operative if they are in fact not at school or childcare in 2022.
I do not accept that Ms E’s recommendation in relation to time is predicated on the basis that the children would be in school or childcare. I take Ms E’s recommendation to be that from 2022, a time at which the children might otherwise be expected to be in school or childcare, the regime that she proposes should operate.
I am satisfied that this arrangement would be in the best interests of the children not only because it would ensure that they have an appropriate period of time with their father, consistently with the recommendations of the family report writer, but also because it will minimise the occasions on which the father and the mother need to have dealings with one another, noting that both parties complain of difficulties in their interactions at changeovers. It may also be that ultimately arrangements are able to be made for the children to attend kindergarten next year, in which case this regime will sit comfortably with that attendance. Also, insofar as the mother’s possible work schedule is concerned, at present there is no evidence about what this would look like and what flexibility the mother may have. If she is working it will be necessary for arrangements to be made which would accommodate the care of these young children, and it is not clear that the regime proposed by the mother will necessarily be any easier in that regard than the regime proposed by the husband. I note also in relation to the commencement of time that this will almost always fall on a school day when the children are at school (or kindergarten). In the rare event that it does not fall on a school day I consider that 3:30pm, being a time equivalent to the end of a school day, is an appropriate time for changeover. There will accordingly be orders in relation this issue as sought by the father.
Religious and cultural holidays (Orders 4 and 5(c))
The father sought orders that the children spend one or two nights with him on specified Jewish religious holidays and special occasions in addition to their usual time with him. The mother opposed the orders in the terms sought by the father, contending that the time spent with the father for these festivals would at times be in addition to and a continuation of the children’s ordinary time with the father, which would sometimes be “too much” continuous time with the father. I do not accept that this would be so. It is appropriate that the children be exposed to the father’s religious traditions in the same way that it is appropriate that they be exposed to the mother’s religious traditions. There can be no sensible opposition to an extra day or two here or there for that purpose. For this reason there will be orders in the terms proposed by the father in relation to the Jewish religious holidays and special occasions.
The orders sought by the mother in relation to time with the children on Orthodox Christian religious festivals were apparently not something to which the father could consent by reason of his religious beliefs, but consistently with settled authority in this Court they were not opposed by the father: see In the Marriage of Paisio & Paisio (1979) FLC 90-659; P & L [2006] FamCA 947.
Time with the father during school term holidays (Order 6(a))
Another issue in dispute was the time the children have with the father during the school term holidays in their first year of school. The father proposes a block of 5 nights while the mother proposes a block of 4 nights. The father points out that in paragraph 128 of her second family report, Ms E recommends that while the children are young there should be a concurrence between the time they have with their father during their holidays and their age. The effect of that would be in 2023 the children would be having six nights during term holidays with their father, whereas the father proposes that the period be five nights. The mother seems to contend simply that five nights would be too long, but that four nights would be acceptable. Aside from her own views in this regard her solicitor was not able to point to any other evidence in support of the mother’s position.
I am satisfied that the father’s proposal would be in the best interests of these children. A five night period in school term holidays would provide the children with a change of scene and an opportunity to engage in activities with the father and his family which might not ordinarily be feasible on weekends. The mother’s proposal that the period be four nights is not consistent with the evidence of the family report writer and is not one which I consider to be in the children’s best interests in the context of the regime that is being put in place.
Long summer holidays (Order 6(e))
The mother took issue with the father’s proposal that from the conclusion of grade three the children spend half of the long summer holidays with the father. Through her solicitor the mother indicated that she would consent to the children spending 10 nights with the father but she submitted that the period of 16 nights proposed by the father was too long to spend continuously with the father. In support of this submission the mother relied on paragraphs 128 and 129 of Ms E’s second family report, which are in the following terms:
128.That consideration for additional time during school holidays occur in concurrence with the children aging; for example, for five nights during the first week of the term school holiday when the children are (5) years of age, six (6) nights at six (6) years of age, and week about at seven (7) years of age.
129.That during the long Christmas school holidays, the above routine rotates each fortnight.
The mother’s solicitor submitted that by the conclusion of grade three the children would be eight years of age, and therefore that Ms E’s recommendation should be read to mean that the number of nights spent continuously with the father should be equal to the children’s age. Counsel for the father submitted that Ms E’s recommendation should be read in context, namely that it contemplates building up time from a five to a seven night week-about arrangement and should not be understood to act as a cap on continuous time spent with the father right up until the children are 18. Counsel for the father further noted that the children will turn 9 in January of the year in question and submitted that the order sought by the father is in the best interests of the children as it would allow for a substantial block of time with each parent, allowing the children to have a proper holiday with both parents.
I accept the submissions of the father. Ms E’s recommendations cannot sensibly be construed as the mother contends. I do not consider that Ms E intended that half of the long summer holidays would have to wait until the children were 16 years of age. By the end of grade three it is appropriate and in the best interests of the children for their regime to move to half the long summer holidays with each parent.
Changeover (Order 9(b))
The parties were in dispute as to the location of changeovers when the children are not at school, kindergarten or crèche. The father sought a changeover arrangement that when the children are not at school, kindergarten or crèche, at the commencement of time with him changeover occur either at his home or at a 7/11 store close to his home at the mother’s election, and at the conclusion of time at the mother’s home or at a suitable service station proximate to the mother’s home, at her election. The mother sought that when the children are not at school, kindergarten or crèche, changeover be at a particular service station in Suburb N, being a location in-between the parties’ residences.
The father submitted that a changeover regime in the form he proposed is equitable and accommodates difficulties which have arisen in the past when changeover has needed to occur shortly before the commencement of the Sabbath on a Friday afternoon. The father’s position is that there have been occasions on which he and the children have had to walk a considerable distance to accommodate the changeover venue presently in place because his orthodox Jewish religious observance prohibits him from driving to collect the children at that time.
The mother did not provide a substantive response to the father’s position in relation to his proposed changeover venue, save to say that she has considered whether she may need to move a short distance from where she presently resides, and that the increase in petrol that the father’s regime would involve might be something that she would have difficulty with.
All things considered it would seem that there is at present a difficulty or a potential difficulty with changeover where it occurs on Friday afternoons, or on the occasion of Jewish religious feasts, and the children are not being collected from school, kindergarten or crèche. In my assessment the solution proposed by the father is more consistent with the best interests of these children than the alternative proposed by the mother because it provides a regime where the children are deposited closer to the father or indeed at his residence when time with him commences and minimises any requirement that they walk any considerable distance. It also places the obligation on the father to return the children either to the mother’s home directly, or to another service station which is proximate to her home if the mother wishes that to be the place of changeover. Insofar as the mother says that the father’s proposal involves the expenditure by her of greater sums on petrol, it is not at all clear to me on the existing evidence that this is so. For these reasons there will be orders in the terms sought by the father.
Non-Denigration – calling the Father “F” (Order 25)
The mother objected to the father’s non-denigration order in relation to the restraint on calling the father “F”, a word which the father maintains means “uncle”, rather than “papa” which he considers more suitable as the child’s father. The mother maintains that she is not able to control what the children call their father. Counsel for the father noted, correctly, that the restraint would only apply to the mother and her family. There is accordingly no difficulty with the father’s proposed non-denigration order.
Schooling and language classes (Order 30 and Notation A)
The mother sought an order that the children attend the local primary school closest to her home and an order that the children be allowed to attend weekend language classes, including that the father facilitate the attendance of the children at these classes when they are in his care. The mother’s solicitor conceded that there was no evidence before the Court about which local primary school the children should attend, or as to the details of the language classes. The proposal for the children to attend a particular primary school was apparently raised by the mother on the third day of the trial. Counsel for the father indicated that the father may be open to the children attending the local primary school, but said that he needed time to make enquiries and consider alternative schools. He also indicated that the father had no objection to the children attending language classes when they were in the mother’s care.
In circumstances where there was an absence of evidence in relation to these matters, and where the parties had agreed to equal shared parental responsibility, it would not be appropriate to make orders requiring the father to take the children to language classes when they are in his care, or that the children should attend a particular school. There will, however, be an order in the terms sought by the father requiring the parties to use their best endeavours to come to a decision as to which school the children should attend in 2023, and a notation indicating that the father does not object to the children attending language classes when they are in the mother’s care.
Travel (Orders 31-33)
The mother sought to be allowed to travel to Country O with the children to visit her elderly father. The father resisted the children being permitted to leave Australia, insisting that their names be placed on the airport watch list.
The difficulty with the mother’s application is that, at the present time, it is made in a vacuum without any firm proposal and in circumstances where, by reason of COVID-19, the mother and the children would not readily be permitted to leave Australia and, if they were, would be required to quarantine for a period on their return. It is also made in the absence of any evidence about the COVID-19 situation in Country O, and what risks the children might be exposed to were they to be permitted to travel.
With these matters in mind I referred the parties to certain recent decisions of the Court where parents had sought to travel overseas with children: Sinclair & Sinclair [2020] FamCA 1054; Yung & Duan (No. 2) [2021] FamCA 428; Quincy & Quincy [2021] FamCA 14; and Koyroyshs & Koyroyshs [2020] FamCA 626. Consistently with the approach adopted in these cases I indicated to the parties that due to the requirements for quarantine upon return and other uncertainties currently associated with overseas travel, I was not presently disposed to make orders allowing the mother to travel overseas with the children. For such orders to be made there would need to be a firm proposal as to when and where the mother intended to travel with the children, proof that she had obtained the necessary permissions, evidence as to the situation at the intended destination, and some measure of satisfaction that lengthy quarantine requirements would not be imposed on the mother and the children when they returned.
There will accordingly be orders in the terms sought by the father, preventing the parties from removing the children from Australia and providing liberty to apply in relation to travel once COVID-19 restrictions have lifted or when all necessary permissions to leave Australia have been obtained.
Return of a USB stick
The mother pressed for the return of a USB stick containing photos of the children which she asserted was in the possession of the father. Counsel for the father confirmed that his client was not in possession of the USB, but was willing to provide the mother with the baby photos of the children which she sought if she would provide him with another USB stick. In these circumstances I declined to make any order.
Video calls with the children
The mother also sought video time with the children when they were in the father’s care but this was opposed by the father, who noted that this has previously been a fraught issue. In the face of the acrimonious relations between the parties I consider that video calls may become a source of conflict and unduly impose on the children’s time with the other parent. Accordingly there will be no order providing for video call time.
Child Support
Finally, the mother sought orders that the father pay one half of all educational costs, the costs of the children’s clothing and shoes that are damaged while they are in his care and for payment of the children’s orthodontics bills. Counsel for the father submitted that there was no child support departure application on foot and that all property matters had resolved by consent. This is plainly correct and in those circumstances I decline to make the orders in relation to these matters sought by the mother.
Other matters
In all the circumstances it remains only to make one observation. The Court’s expectation is that legal practitioners appearing at final hearings are cognisant of their primary duty to the Court. Acting as a mere mouthpiece of the client, and making submissions which are without an appropriate evidential foundation or are otherwise fatuous, is not conduct which the Court regards as acceptable. Unfortunately the position adopted by the mother’s solicitor in relation to certain matters, including the issue of the pool fence, the changeover venues, the relatively minor disagreements between the parties in relation to time, where the children should attend primary school, the non-denigration order and child support did not meet the standards which the Court expects in this regard.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 24 August 2021
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