Merrill and Merrill

Case •

[2013] FCCA 2279

•

10 December 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRILL & MERRILL [2013] FCCA 2279
Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – Christmas Holidays – Father’s 50th birthday party – best interests of the children – child’s birthday party.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:
Merrill & Merrill [2012] FMCAfam 1435
Applicant: MR MERRILL
Respondent: MS MERRILL
File Number: SYC 2786 of 2012
Judgment of: Judge Scarlett
Hearing date: 3 December 2013
Date of Last Submission: 3 December 2013
Delivered at: Sydney
Delivered on: 10 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Kenny
Solicitors for the Applicant: Hamish Cumming Family Lawyers
Solicitor for the Respondent: Ms Lees
Solicitors for the Respondent: Lees & Givney

ORDERS

UNTIL FURTHER ORDER

  1. The children X born (omitted) 2000, Y born (omitted) 2003 and Z born (omitted) 2005 are to spend time with the Applicant Father as follows:

    (a)From 9:00am on the Father’s birthday 20 December 2013 until 9:00am on 21 December 2013;

    (b)From 12 noon on Christmas Day 25 December until 9:00am on Boxing Day 26 December 2013; and

    (c)From 5:00pm on Boxing Day 26 December 2013 until 9:00am on Saturday 11 January 2014.

  2. The children X, Y and Z are to spend time with the Respondent Mother as follows:

    (a)From Wednesday 18 December to 9:00am on Friday 20 December 2013;

    (b)From 9:00am on Saturday 21 December to 12 noon on Christmas Day 25 December 2013;

    (c)From 9:00am until 5:00 pm on Boxing Day 26 December 2013; and

    (d)From 9:00am on Saturday 11 January to 28 January 2014.

  3. The Applicant Father is to collect the children from the Mother’s residence at the commencement of his time with them and return them to the Mother’s residence at the conclusion of his time with them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2786 of 2012

MR MERRILL

Applicant

And

MS MERRILL

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an Application in a Case brought by the Father for interim parenting orders concerning the parties’ three children over the December 2013 and January 2014 school holiday period. The Application is brought in the context of proceedings between the parties for final parenting and property orders which have been heard over a number of days, from 16th to 19th July and on 16th October 2013. Judgment was reserved on 16th October pending the receipt of written submissions from Counsel for both parties.

  2. When the matter was before the Court on 16th October, Counsel for the Father, Mr Kenny, sought leave to re-list the parenting matter if the Respondent Mother “resiled” from her position as to the arrangements for the parties each to spend time with the three children over the Christmas period. There were some negotiations between the parties’ solicitors in late October and November but the parties were unable to reach agreement about the time that the children would spend with each parent. The Father sought to have the matter re-listed, and the matter was listed before the Court on 3rd December 2013. The Father filed an Application in a Case on the day that the matter was before the Court, seeking Orders to cover the time from 14th December 2013 to 12th January 2014. The Application was supported by an affidavit sworn that same day.

  3. The Mother had already sworn or affirmed an affidavit on 29th November 2013, setting out her position.

Background

  1. There are some interim parenting Orders in force as a result of an interim hearing on 14th December 2012 (Merrill & Merrill[1]). Those Orders until further order provide (relevantly):

    [1] [2012] FMCAfam 1435

    (1)The Applicant and the Respondent are to have equal shared parental responsibility for the children of the marriage:

    (a)    X born (omitted) 2000;

    (b)Y born (omitted) 2003; and

    (c)Z born (omitted) 2005.

    (2)Except as otherwise provided the children X, Y and Z are to live with the Respondent mother.

    (3)The children X, Y and Z are to spend time with the father:

    (a)Each alternate weekend during the school term from 5:30 pm on Friday until 7:30 am on Monday morning PROVIDED THAT if the Monday is a public holiday then until 7:30 am on the following Tuesday; and

    (b)During school holidays at such times as the parties shall agree.

    (4)The children are to remain in the care of the mother on Mother’s Day and spend time with the father on Father’s Day at such times as the parties shall agree.

    (5)For the purposes of changeover during the school term the father is to collect the children from the mother’s home on the Friday afternoon and return the children to the mother at her home or at before school care as the mother may advise on the Monday morning or the Tuesday morning as the case may be.

  2. There was a further Order about a proposed trip by the Father and the children to the (country omitted) in September and October 2013 that is no longer relevant.

Orders Sought

  1. The Father, in his Application in a Case, sought the following Orders:

    1. That the children, X born (omitted) 2000, Y born (omitted) 2003 and Z born (omitted) 2005 (“the children”) spend time with the Father as follows:

    (a)From 3:00 pm 14 December 2013 to 11:00 am 15 December 2013;

    (b)From 12:00 pm 25 December 2013 to 9:00 am 26 December 2013; and

    (c)From 5:00 pm 26 December 2013 to 5:00 pm 12 January 2014.

    2. That the Father shall collect and return the children from and to the Mother’s residence for the purposes of these Orders.

    3. That the Respondent Mother pay the Applicant Father’s costs of and incidental to this application.

  2. The Mother’s solicitor, Ms Lees, handed up a Minute setting out her client’s proposals for the 2013, 2014 and 2015 Christmas school holidays and thereafter. As the 2014 and 2015 Christmas school holidays are more properly the subject of final orders they are outside the scope of the limited application that is currently to be decided and will not be dealt with on this occasion.

  3. The Wife’s Minute of Proposed Orders comes with a preamble which sets out the reasons for her proposed orders:

    On the basis that, notwithstanding the Final Orders sought by the Wife the children spend time with the wife for the first half of the Christmas school holidays in an odd year and that the children spend time with her for the second half of the Christmas school holidays in an even year, the wife proposes (to accommodate the Husband’s request to spend time with the children in the first part of the 2013 school holidays) the following orders:

  4. The orders that the Wife seeks for the 2013 are set out as follows:

    1.  For the 2013 Christmas school holidays:

    1.1    That the children spend time with the Father from:

    (a)    9.00 am 20 December 2013 to 9.00 am 21 December 2013;

    (b)    2.30 pm 25 December 2013 to 9.00 am 26 December 2013;

    (c)     5.00 pm 26 December 2013 to 9.00 am 11 January 2014.

    1.2That the children spend time with the Mother as follows:

    (a)    From 18 December 2013 to 9.00 am 20 December 2013;

    (b)    From 9.00 am 21 December 2013 to 2.30 pm 25 December 2013;

    (c)     From 9.00 am 26 December 2013 to 5.00 pm 26 December 2013;

    (d)    From 9.00 am 11 January 2014 to 28 January 2014 which is the end of the school holidays.

    1.3The Father to pick up and return the children to the Mother’s residence on the days that he has them.

  5. At the hearing, Mr Kenny of Counsel told the Court that the Applicant Father conceded Order 1.1(c) proposed by the Mother, which provides that the children would spend time with him from 5:00pm on Boxing Day 26th December until 9:00am on 11th January 2014, which means that they return to their mother more than a day earlier then he originally proposed, namely 5:00pm on 12th January.

  6. Ms Lees explained to the Court that that the proposed arrangement for Boxing Day, where each party proposed that the children would spend from 9:00am to 5:00pm on Boxing Day with their mother, was due to the fact that Boxing Day is a traditional time for the Mother’s family to meet together.

  7. Further, Ms Lees explained that the reason why her client sought that the children should be returned to her by 9:00am on 11th January rather than 5:00pm on 12th January was that she had arranged to take the children down to the Victorian border on 11th January so that they could see their uncle competing in a marathon at (omitted) the following day. As I said, the Father conceded that arrangement.

  8. It should be noted that both parties proposed identical changeover arrangements, namely that the Father would collect the children from the Mother’s residence and return the children to the Mother at her residence.

Evidence and Submissions

  1. The Father relied on his affidavit of 3rd December 2013.

  2. The Mother relied on her affidavit of 29th December 2013.

  3. In his affidavit, the Father deposed that on 17th October 2013 he instructed his solicitors to write to the Mother’s solicitors with a proposal about holiday time with the children from Boxing Day to 12th January and for time with the children for Christmas Day to the morning of Boxing Day. When no response had been received by 28th October 2013 he instructed his solicitors to ask the Court to have the matter re-listed.

  4. He deposed that there was further correspondence between the solicitors over November.

  5. The Father set out in his affidavit that he sought to have the children attend his upcoming 50th birthday party, which was to be held on (omitted) 2013. He stated:

    I decided the date for the party to suit family and friends’ availability. My birthday is (omitted) which is too close to Christmas to suit many.[2]

    [2] Affidavit of Mr Merrill 3.12.2013 at paragraph[12]

  6. He further deposed that the Mother had told him over the telephone that she had arranged a 13th birthday party for the parties’ eldest child X on that weekend. The Father deposed that the child’s actual birthday falls on (omitted).

  7. It is the Mother’s evidence that she has not resiled from the proposals about the Father’s time with the children that she made in Minutes of Proposed Order on 16th July 2013. She deposed in her affidavit that there had been correspondence between the parties’ solicitors on this issue since 12th September 2013 and she has tried to negotiate with the Father “without recourse to lawyers, in respect of the forthcoming Christmas vacation holiday, without success”.[3]

    [3] Affidavit of Ms Merrill 29.11.2013 at paragraph [6]

  8. The Mother also stated that for the previous two Christmas school holiday periods since separation the children have spent time with the Father for the first half of the holidays on each occasion. The children did not share Christmas Day 2012, New Year’s Eve 2012 or New Year’s Day 2013 with her. It is also her view that the Father has made demands “to suit his convenience”[4]for holiday time not only at Christmas but also for other holidays which have included overseas travel with the children.

    [4] Ibid at [15]

  9. The Mother’s evidence about the issue between the Father and herself over the clash of the birthday celebrations of the Father and the child X are set out at paragraphs [22] to [39] of the Mother’s affidavit. In essence, she stated that X had specifically requested that for his 13th birthday he wanted a camping weekend at (omitted) with his friends. The child’s birthday falls on (omitted), but that day fell on the Father’s scheduled weekend with the children. The birthday itself fell on the Friday. The Mother was not able to organise a birthday celebration for the child on the weekend commencing Friday 29th November, when the children were due to be with her under the Orders, because the child Z had a dance concert scheduled on the Saturday. The following weekend was a weekend when the children were due to be with their father.

  10. The Mother deposed that she booked the camping site for the weekend commencing Friday 13th December 2013 because that was a weekend when the children were due to spend time with her under the existing Orders. She was also aware that (omitted) was the Father’s birthday (he states in his affidavit that it is actually (omitted)) and she assumed that he would want the children with him on that day.  

  11. The Mother’s position about holiday times over the Christmas/January period is, in my view, summed up in paragraphs [17] and [19] of her affidavit. The two paragraphs are more in the nature of submissions than statements of fact, but they are worthy of consideration as submissions and they are reproduced in their entirety below.

  12. In paragraph [17] of her affidavit the Mother states:

    I have no significant objection if there is an overlap in the school holiday that the children spend with the Husband, such that it is a day or two more than one half, but if the Husband has the children for a significant time during the first half of the Christmas 2013 holiday contact, then this would be (the) third year in a row that I do not have the children over that significant holiday period including the New Year’s Eve/New Year’s Day celebrations. If my proposed Orders were granted in broad terms, then I would not have the children over the first half of the Christmas school holidays until 2015. I also recognise that the Husband’s birthday usually falls in the first week of the school holidays, and from a practical point of view if the Husband is to have time with the children on his birthday that would prevent me from going away until after the Husband’s birthday. This does limit my ability to make arrangements to take the children away until after the Husband’s birthday. Notwithstanding I have no objection with the children spending time with their father on the Husband’s birthday.

  13. In paragraph [19] of her affidavit the Mother states:

    It is my understanding that the Father asserts his office closes over the Christmas/New Year period and that is why he is seeking to have the children spend virtually the first half of the Christmas school holidays with him every year. I am trying hard to locate work and (omitted) where I have casual employment also closes over the Christmas/New Year period. I would like to be available to take whatever casual work I can get over the (omitted) break and also spend holiday time with the children. I have been informed by (omitted) that they will be providing me with some casual work up to Christmas but the (omitted) will be closed over the same kind of period as the Husband’s office. I expect this is a situation that both the Husband and I will face each Christmas. In the prior two Christmases I did not have an opportunity to discuss or agree or otherwise to the father having the first half of the school holiday period, because he went and made the travel arrangements for the children without consulting me first. He just informed me he had made a booking.

  14. In his submission, Mr Kenny for the Father referred the Court to a letter dated 27th November 2013 from the Father’s solicitors to the Mother’s solicitors which form Annexure “G” to the Father’s affidavit. That letter attaches a copy of an email dated 30th October 2013 directly from the Father to the Mother (marked “Without prejudice”) advising her, amongst other things, that he planned to hold his 50th birthday party on (omitted) and he would like to have the children from 3:00pm on that Saturday until late morning on the Sunday.

  15. The letter of 27th November refers to the earlier email and the Mother’s arrangements for the child X’s birthday celebration. The letter says, in part:

    Your client knew from that date that our client’s party was booked for reasons contained in the email. Should your client have then booked a birthday party for X’s birthday at (omitted) as set out by you, after the date of this email, she has intentionally and deliberately put X in a position of having divided loyalties to her and his desire to enjoy his birthday with friends, and/or his enjoyment and anticipation of spending his Father’s 50th birthday celebrations with him.

  16. The letter goes on to demand copies of the forms or emails or other correspondence relating to the booking of the campsite at (omitted) and advice of the date when invitations to the party were sent out. The letter threatens the issue of a subpoena to (omitted) and goes on to say:

    If it proves that your client has booked this party for X, notwithstanding our client’s advice that he had a birthday celebration, it is a deliberate act of interference by your client that will not assist her parenting Application, in our view, at all.

  17. One might well ask whether the Father or his solicitors considered that the letter of 27th November and the attached email would assist the Father’s parenting Application, and if so, how.

  18. Mr Kenny submitted, and it appears to be conceded by the Mother, that the Father’s (employer omitted) compulsorily closes over Christmas until about 6th January in each year, which means that the Father wishes to spend that time with the children. The Mother addresses that issue in paragraph [19] of her affidavit, quoted at [26] above.

  19. It was also submitted that the Mother had had the children with her for three consecutive weekends in November.

  20. For the Mother, Ms Lees submitted that the father had had six weeks more holiday time than the Mother in 2013. She also submitted that it was not uncommon for most workplaces to shut down over the Christmas/New Year period. Further, she submitted that whilst the Father’s 50th birthday will not come again, nor will X’s 13th birthday. The Father makes arrangements without consulting the Mother. The first news the Mother had of the Father’s proposed arrangements was when the Father sent his email on 30th October.

Parenting Applications

  1. As this is an interim Application seeking parenting orders, albeit on limited issues, the Court must still consider the matters in the Family Law Act 1975 (Cth).

  2. Part VII of the Act deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

    a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

    b)Protecting children from physical or psychological harm;

    c)Ensuring that they receive adequate and proper parenting; and

    d)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

  3. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

    a)Children have a right to know and be cared for by both of their parents;

    b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;

    c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development;

    d)Parents should agree about the future parenting of their children; and

    e)Children have a right to enjoy their culture.

  4. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child or children as the paramount consideration.

  5. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3). One of the primary considerations is the benefit to the child (or children) of having a meaningful relationship with both of the parents. This is not a case where the children are at risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  1. The Court is required by s.61DA(1) of the Act to apply the presumption that it is in the best interests of the children concerned for their parents to have equal shared parental responsibility for them. There is currently an order in force providing for equal shared parental responsibility and neither parent has sought to vary that order.

  2. Where the Court is making interim Orders, as is the case here, subsection 61DA(3) provides that the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied. There is no evidence nor has there been any submission made that equal shared parental responsibility would not be appropriate.

  3. The orders sought by both parties relate to discrete issues over the Christmas/January school holidays. Notwithstanding the fact that the earlier order providing for the parents to have equal shared parental responsibility is to continue, it would not be appropriate for the Court to undergo the consideration of equal time or substantial and significant time with each parent required by s. 65DAA.

  4. There are final parenting proceedings and property issues pending between the parties. The nature of this dispute between the parties points to the need for the parenting aspects, at least, to be decided in the near future, as the parties have a high degree of hostility and a low degree of cooperation in matters concerning their children.

Conclusions

  1. It should be made clear that all of the matters in sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 have been considered, insofar as they are relevant. That said, this particular dispute appears to be as much about the parents’ wishes as it is about the best interests of the children.

  2. What is important about arriving at an equitable arrangement about the time the children spend with each parent is that it does concern their best interests, particularly when one considers the benefit to the children of having a meaningful relationship with each of their parents.

  3. It is not unreasonable and, indeed, quite understandable, for the Father to want to have his children with him at a party to celebrate his attaining the age of 50. This could be described as an event that is of special significance to the Father. However, the party was not scheduled to be held on the Father’s actual birthday at all, but on an earlier date which the Father had selected because the actual date is too close to Christmas. As he deposed in his affidavit referred to at [18] above, the date he selected was to suit family and friends’ availability. Unfortunately, he chose a day that was on a weekend when the children would normally have been with their mother under the existing Orders. This was a day when the Mother had made arrangements for the birthday celebrations for the parties’ eldest child, X. She chose a weekend when the children would normally have been with her under the Orders. She did not select a date that clashed with the Father’s actual birthday, and there is some uncertainty about whether the birthday falls on (omitted) or (omitted) December – the Father’s material refers to both – but a date that she would reasonably have expected would have been available to her to arrange an activity because it was on her weekend according to the Orders.

  4. If the Father wants to change the arrangements, he needs to contact the mother in plenty of time. He might also choose a somewhat more sensitive approach than that set out in his “without prejudice” email to his former wife of 30th October 2013, where he stated that he was “willing to consider” paying an additional $135.00 per month to cover the children’s health fund membership until the proceedings are finalised, in return for which he sought that the Mother would agree to certain requests (“and any further reasonable requests”) for the children to spend time with him on weekends of his choice.

  5. I might point out, also, that the letter from the Father’s solicitors to the Mother’s solicitors requiring production of details of when she had made arrangements for X’s birthday celebration at (omitted) illustrates an aggressive approach to negotiations about parenting arrangements which does not advance the Father’s case. The threat in the letter – “If it proves that your client has booked this party for X, notwithstanding our client’s advice that he had a birthday celebration, it is a deliberate act of interference by your client…” – is, in my view, an empty threat. With what, it might be asked, is the Mother’s action “a deliberate interference”? It is not, nor could it be, an interference in the Father’s right to spend time with his children under the current parenting Orders.

  6. The fact is that there are interim parenting Orders in force because the parties could not, and still cannot in many cases, agree on arrangements for the children. That is why Courts make orders in family law proceedings.

  7. That said, the Father has, to his credit, accepted that Boxing Day appears to be a special day for the Mother’s family and proposed an order which provided for the children to spend from 9:00am to 5:00pm on Boxing Day in the care of their mother. The Mother sought a similar order.

  8. On the day of the hearing, the Father, also to his credit, conceded that the children should return to their mother’s care at 9:00am on 11th January 2014 rather than 5:00pm on 12th January, which he had proposed in his Application in a Case. This concession by the Father, to accommodate the Mother’s plans for the children to spend time with extended maternal family, was a concession of some significance, as it resulted in a reduction in his time with the children of, effectively, two days and one night.

  9. Unfortunately for the Father, his application for the children to spend time with him at his 50th birthday party cannot be acceded to. They will still spend his actual birthday with him, and that will have some significance and meaning for them, and for him. The Mother made arrangements for the children to camp at (omitted) on a weekend when she reasonably expected that the children would be with her under the current Orders.

  10. The birthday party for X is important for him, and on his mother’s evidence, untested though it may be, it was arranged at a time near his birthday when it appeared not only to be convenient, but the only convenient time reasonably near to the day itself.

  11. In my view, the Orders to be made are in the children’s best interests.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  7 January 2014


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MERRILL & MERRILL [2012] FMCAfam 1435