MERRITT & PARTOS

[2015] FamCA 666

FAMILY COURT OF AUSTRALIA

MERRITT & PARTOS [2015] FamCA 666

FAMILY LAW – CHILDREN – Interim – Order discharging previous orders requiring the father to have the child attend upon sporting and extra-curricular activities while the father is spending time with the child – No Order made to vary the existing orders in relation to the child’s weekend time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Merritt

RESPONDENT: Mr Partos

INDEPENDENT CHILDREN’S LAWYER: Tracy-Lynne Geysen

FILE NUMBER: BRC 1985 of 2007

DATE DELIVERED: 14 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 and 11 August 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family & Animal Law

Orders

1. Until further Order, paragraphs 10 and 11 of the parenting Order of Principal Registrar Filippello of 31 October 2013 are discharged.

2. Until further Order, paragraph 20 of the parenting Order of Justice Bell of 21 April 2010 is discharged.

3. Until further Order, the father shall notify the mother by telephone text message as soon as he knows the child, C, will miss any game of sports that he is to play that is scheduled during the time that the child spends with the father pursuant to the existing parenting Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Partos & Merritt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1985 of 2007

Ms Merritt

Applicant

And

Mr Partos

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. On 21 April 2010, Justice Bell made a final parenting Order between the parents of the child C born in 2006 for the child to live with the mother and for her to have sole parental responsibility for him.

2. The mother was living in O Town, between Brisbane and the Region J and the father was living on the Region J.

3. The parenting Order also provided for the child to spend time with his father on alternate weekends during school terms from after school Friday until 4:00 pm on Sunday and during school holidays.

4. It also provided for both parents to be entitled to attend school functions, activities, sporting and extra-curricular activities, in which the child may be involved; for the father to use his best endeavours to have the child attend sporting and extra-curricular activities while the child is spending time with the father and for the parents not to approach each other or attempt to communicate in any way with each other at any of the school functions, activities, sporting and extra-curricular activities in which the child may be involved.

5. Justice Bell further ordered on 18 March 2011 that neither parent could institute any proceedings in the Court without first obtaining the leave of a Judge of the Court.

6. Sometime in 2012, the father moved from the Region J to live in Suburb P to care for each of his parents, who had long separated, but who were both very ill.

7. He and the mother, who had never lived together as a couple and have never been able to communicate reasonably with each other, could not readily agree on appropriate variation to the parenting Order then in place to take account of the changed circumstances, the father maintaining an intention to move back to the Region J at some future, indeterminate time.

8. On 16 September 2013, I gave leave to the mother to file an application seeking a variation of the Order and on 31 October 2013, Principal Registrar Filippello made an interim Order varying Bell J’s Order of 21 April 2010 by discharging the paragraph that provided the specifics of the child’s time with his father. The PR’s variation provided for the child’s alternate weekend time with the father to be extended to Monday mornings before school, as the father was then living in Suburb P, thus making such an Order reasonably practicable. Significantly, the PR’s Order also discharged paragraph 20 of Bell J’s Order that required the father to use his best endeavours to get the boy to his sporting and other extra-curricular activities and replaced it with an Order that obligated the father to have him attend sporting and extra-curricular activities whilst he is spending time with him and, to return the child to the mother for her to facilitate the child’s attendance, in the event that the father is unable to do so.

9. It is common ground between the parents that the child is a very keen and talented sportsman. He attends a school that is well-known for its successful sports program.  The father was living in Suburb P at the time and the PR clearly determined it was in the boy’s best interests for the father to be obligated to take him to scheduled games during the weekends the boy spends time with him.

10. In February, 2015, the matter was listed for a 2 day trial on 10 and 11 August, 2015 before me. On 12 March 2015, the father filed an Application in a Case seeking variation to the existing parenting Orders to take into account his decision to move back to the Region J, a move he told the Court was going to be happening later that month (March). He submitted that the requirement included in the original parenting Order made by Justice Bell that the mother collect the child from the Region J at 4:00 pm on Sunday afternoons be reintroduced and that the paragraph obligating him to take the child to his sports games on the weekends he is spending time with his father be discharged.

11. The father’s interim application was heard by me on 11 May, 2015. I dismissed the father’s application and published my reasons on 19 May 2015. I also ordered that the father return the child to the mother in Brisbane at 5:00 pm on Sundays on the alternative weekends that the child is with him in the event that he cannot ensure that the child is going to be delivered to his school by the scheduled start of school on the following Monday morning.

12. At the hearing of the father’s application, the Court was informed that the mother was now also seeking a variation to the existing parenting Order so that she is permitted to relocate the child to live with her and her new partner in Q Town, a small village just south of K Town in northern New South Wales. She was given leave to amend her application to seek that. I also gave the father leave to amend his Response, given that he informed the Court that he now wanted to make application for the boy to live with him on the Region J.

13. I made directions for the trial and I had a compliance hearing on 24 June 2015. That day, the father made an oral application for me to discharge the obligation on him to have to take the boy to his sports games in and around Brisbane on the weekends when he is spending time with him on the Region J. I refused to entertain that application that day.

14. At the conclusion of the trial on Tuesday, 11 August 2015, having determined that I must reserve my decision in respect of the competing applications for final parenting Orders, the father again asked me to immediately discharge the PR’s Order that required him to bring the child to Brisbane for his sports games on the weekends he is with him. The mother opposed that and so did the Independent Children’s Lawyer.

15. It was 6:15 pm when the trial finished and the mother informed me that her young daughter was in childcare in the south of Brisbane and that the Centre shut at 6:00 pm, making it imperative that she be able to leave immediately to travel there to collect her child from a staff member who had agreed to stay back and wait. I reserved and told the parties I would make a decision on this limited matter and make an Order before the weekend.

16. The child either plays in a sports team that is in two competitions or plays in two different teams in two different competitions. In any event, he currently plays two games each Saturday, at different times and not necessarily back to back. Those two games can be hours apart and at venues quite distant from each other.

17. The mother told the Court that there are, to the best of her knowledge, four weeks of the current season left, and she did not know yet whether the boy will be playing finals fixtures after that. She, of course, takes the boy to those games on the weekends that he is living with her.

18. The father has been obligated, by the PR’s Order, to take the boy to his sports games since October 2013. Notwithstanding that ordered obligation, there has been at least one time since then when he has not taken him to games. There was a long weekend during the sports season last year when the father and his current partner determined that the Order could simply be ignored so that they could travel to the Region J and clean up the father’s investment apartment after tenants had vacated it. There is evidence that the child was unhappy about this and felt as if he had let his teammates down. He is reported to have told a family report writer last year that he had the team sports jerseys that time, and that this was part of the reason for him being upset about not being taken to the game. The father was also reported to have told the family report writer that he knew about the child having the jerseys too, but said he still had to go to the Coast for the weekend and take the child with him instead of complying with the Order.   

19. In cross-examination, the father denied that the child had the jerseys with him and denied the child said anything to him about the jerseys. However, in her cross-examination the father’s partner said that the child had said something to her about having the jerseys, but she said that he did not have any jerseys with him in any event. When this matter was raised with the father during oral submissions at the end of the trial, the father submitted there had been no inconsistency in the evidence, seemingly then asserting that he did know that the child had said something about having the jerseys, but maintaining that he did not have them with him. I listened again to the audio transcript. Though I cannot make a finding that the child did actually have the jerseys with him, the father’s position on this point added to concerns I had about his veracity overall, but more will be said about that in my final judgment.

20. Despite that, the evidence seems to support a finding that even since the father moved back to the Region J, he has mostly complied with the obligation to take the boy to his sports games. Particularly since the father moved back to the Region J, that has been at some cost – both financially and in time. The boy has been picked up from school in Suburb B on Friday afternoon, driven to the Region J that evening, then driven back to Brisbane for his sports commitments on Saturday, then driven back to the Region J that afternoon, then driven back to Suburb B for school on Monday morning – a total of around six to seven hours driving each alternate weekend that the boy is with his father.

21. This is to be viewed against evidence that the father’s financial position appears rather dire. He said he earned only about $20,000 gross in the 2014/2015 financial year. He pays $70 child support per week and $175 per week for half of the rent on the place he lives in at the Region J. Plainly, the cost of fuel for two return trips between Brisbane and the Region J each second weekend would significantly cut into his available resources. Indeed, the father’s evidence is that he is supplementing his meagre income, earned in various “jack of all trades” type casual jobs and to the extent of $50 net per week from his investment property, by drawing against his equity in that property. He already owes in excess of $113,000 on the property that he says is worth only $198,000. It is his only property asset.

22. Pursuant to the existing parenting Orders, the child is scheduled to spend time with the father this weekend. The mother said there are four weeks of sports games left before the regular season ends. The father has acknowledged in evidence that the boy is passionate and talented about his sports. He said that he believes the boy knows that he (the father) supports his commitment and involvement in sports. The father is also aware that the child has been independently reported to have been upset about his father’s decision last year not to take him to his game on a weekend that the boy was in his care.

23. As I said when hearing submissions about this matter, it must be kept in perspective that the child is only 9 years old. Although he is a passionate and talented sports player, he is still a child and his family circumstances currently see him living in Brisbane with his mother and him spending time with his father who lives on the Region J. The decision of his father to move back to the Region J knowing about the child’s sports passion and involvement was his father’s own carefully considered, adult decision. In the absence of an Order, the decisions of his father about whether he takes the child to sports games when he is in his care must also be the child’s father’s own considered, adult decisions. If he makes them knowing that his 9 year old son will be upset and feel that he is letting his team down, then the father will have to explain those decisions to his son and deal with his son’s reactions and feelings in response. That is part of negotiating and managing the parent-child relationship.

24. I do not consider that it is so imperative to the 9 year old boy’s best interests that he never miss a game of sports such that his father should continue to be obligated by Order of this Court to bring the boy back to his games from the Region J on the alternative weekends that the boy is in his care. Both parents agree that driving six to seven hours during the weekend when the child is with his father is burdensome for the child. There are potentially only two such weekends left this sports season, subject to finals commitments. I consider it properly a matter to now be left to the father to decide.

25. It may very well be, given the father’s acknowledgment of the boy’s passion for the game, and his expressed commitment to support that passion and involvement, that the father might see himself able to bring the boy down on those few weekends until this season’s commitments finish. But that is for the father and the boy to work through and for the father to determine. I will not order him to do it. The relationship between the father and the boy will likely, in my judgment, reap the consequences of whatever the father’s decision is in this respect.

26. Accordingly, I will discharge the Order of the PR that obligates the father to take the child to sports games and, for the sake of absolute clarity; I will discharge the Order of Bell J that obligates the father to use his “best endeavours” to take the child to sports games. I will, though, make an Order that the father informs the mother by text message as soon as he knows that the child will not be attending at any of his sports games scheduled during any of the time that the child is in his father’s care, so that the child’s Team Manager or Coach can be notified as soon as practicable before any such game and so that the mother can make her own decision about whether she goes to watch the game or not. Indeed, if the Manager or Coach is prepared to give the father his or her telephone number, the father would, no doubt, be able to contact the Manager or Coach and pass on the information about the child’s non-attendance in a timely enough fashion for alternative team arrangements to be made. The father could explore this option with the management of the boy’s team or teams, or the mother could find out and pass on the contact details for the team management to the father. I will, though, leave this matter to each of them.

C’s Schooling

1. I have given consideration to the making of another Order that requires the father to return the child to the mother on the Sunday evenings of the alternate weekends that the child spends with him. Bell J’s final Order provided for that when the father was previously living on the Region J, but now that the father has returned to live on the Region J he is seemingly content to be responsible for getting the child back to Brisbane and to school on the Monday morning following his weekends with him.

2. In May this year, in respect of this issue, I made an Order that obligated the father to return the child to the mother in Brisbane at 5:00 pm on the Sunday in the event that he cannot ensure that the child is going to be delivered to his school by the scheduled start of school on the Monday morning.

3. I heard evidence that the child has been late for school three times on those Monday mornings since that Order was made and that on one occasion he missed school completely on such a Monday. That concerned me greatly, particularly having regard to my previous Order.

4. The father’s evidence was that on the occasion the child missed school completely he was ill and had to be taken to the doctor. The explanations for the child arriving late to school on the other occasions included reference to one occasion when the father’s plans were thrown out on the Monday morning when he woke with a serious back injury suffered moving a piano the day before, and his partner was required to take the child to Brisbane instead of him. They also included unexpected, severe traffic delays encountered on the way on some days.

5. I accept that sometimes the unexpected happens, but it is important for a child’s educational development that they miss as little school as possible and that they arrive at school on time each day. The father has an obligation to ensure that the child is delivered to school on time every Monday after the weekend he spends with him. If he cannot ensure that, then he is obliged to deliver the child to the mother on Sunday afternoon, so that she can ensure the child is delivered to school on time. If ensuring punctuality means leaving the Region J a little earlier than he might otherwise consider appropriate, then that is required.

6. Ultimately, I have determined that I will not change the Orders that are in place at this time about when the boy’s weekends with his father end, pending delivery of my judgment in the contested proceedings. I will endeavour to deliver that judgment as soon as I can, having regard to my responsibilities to hear and determine so many other matters like this one at the same time.

7. For the moment, I make the Orders set out at the commencement of these reasons.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 14 August 2015.

Associate: 

Date:  14 August 2015