Michel and Simon

[2014] FCCA 2566

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHEL & SIMON [2014] FCCA 2566

Catchwords:
FAMILY LAW – Parenting – changeover locations for the father’s time with the children. Regime of fortnightly time for the children with the father – final orders made by Federal Magistrate Burchardt as recently as February 2010 – agitation of two discrete issues.

Legislation:

Family Law Act 1975

Applicant: MR MICHEL

Respondent: MS SIMON

File Number: MLC 2979 of 2009

Judgment of: Judge McGuire

Hearing date: 31 July 2014

Date of Last Submission: 31 July 2014

Delivered at: Melbourne

Delivered on: 14 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Morisson & Sawers

Counsel for the Respondent: Mr Arnold

Solicitors for the Respondent: Roger O’Hallorn & Co

ORDERS

1. That order 6 of the orders of Federal Magistrate Burchardt (as he then was) made 8 September 2009 be discharged.

2. That subject to paragraph 7 of the orders of 8 September 2009 all three (3) children spend time with the father from 6.00p.m Friday until 8.00 a.m Monday on alternate weekends on a 26 fortnightly yearly regime and such alternate weekend regime shall be suspended during each school holiday period but recommence following school holidays on the basis that such time proceed on a 26 fortnightly calendar in each year.

3. By consent, for Christmas in even numbered years the father’s holiday time is suspended so the children spend time with the mother from 4.00pm 24 December until 10.00am 26 December; and

4. By consent, for Christmas in even numbered years the mother’s holiday time is suspended so the children spend time with the father from 10.00 a.m 26 December to 6.00 p.m 28 December.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2979 of 2009

MR MICHEL

Applicant

And

MS SIMON

Respondent

REASONS FOR JUDGMENT

1. There are two discrete issues between these parties who have endured lengthy litigation in respect of their three children, X, born (omitted) 2004 (aged 10 years), Y, born (omitted) 2006 (aged 8 years), and Z, born (omitted) 2008 (aged 6 years). 

2. Final orders were made by Burchardt FM (as he then was) on 9 September 2009.  At the time of the evidence then it seems clear that the father was at least anticipating a move from the (omitted) area to (omitted).  That move took place on 30 November 2009.  Problems quickly arose between the parents and have persisted ever since, ostensibly grounded on issues of geography but probably manifesting some more entrenched residual difficulties between them.

3. The applicant father lives and works in (omitted).  The respondent mother lives in (omitted).

4. The two remaining issues for my determination are: 

   i)Where changeovers occur at the end of the children’s time with the father; 

   ii)Whether or not the children’s fortnightly weekend time with the father is suspended during school holidays and restarts in sequence with the weekend immediately prior to the holidays or, on the father’s argument, whether there is simply a 26-fortnight regime which travels through the school holidays albeit with actual weekend time with not occurring during the school holidays.

5. Although his Honour made final children’s orders only as recently as September 2009, I allowed a re-litigation of the matter in respect of three discrete issues (the parties, to their credit, have now agreed the third issue involving Christmas Day time and I will make consent orders accordingly).  The fact of reopening, however, is not determinative of the remaining issues in favour of the applicant.  It denotes only that there were arguable issues between the parties arising from new circumstances.

6. The father seeks orders as follows:

   i)That the children’s weekend time with the father continue on a 26-fortnight rolling roster.  That is, the suspension of time in school holidays ordered by his Honour have no effect on the weekends that the children spend with the father given that they simply be dictated by the calendar rather than the school holidays;

   ii)That he return the children after all time with periods to Woolworths supermarket at (omitted) (near (omitted)).

7. The mother effectively seeks a dismissal of the father’s application.  She says that his Honour’s orders suspend time during school holidays and that this means that weekends continue accordingly.  For example, if the children are to spend the weekend immediately prior to the holidays with the mother then they would spend the first weekend after the holidays with the father.  This, of course, would not necessarily be the case on the father’s argument.

8. Secondly, the mother says that the changeover on Monday mornings should remain as ordered by his Honour, being at (omitted). His Honour’s orders provide for weekend time with the mother to deliver the children to the paternal grandparents at (omitted) (near (omitted)) and the father to return them to a resort at (omitted). Order 7A deals with school holiday periods of time with the father. It separately provides for the father to collect and return the children from the (omitted) resort. A later order discretely changed the collection point for the father to the Safeway Supermarket in (omitted). In so far as the father claims ambiguity in his Honour’s orders, I disagree. His Honour clearly dealt with the changeover issue separately for weekends and school holidays. He is at all times obliged to return the children to (omitted).

9. The father’s argument can be summarised as follows:

   i)His partner has a child who visits fortnightly weekends.  It is convenient and in all children’s interests that all three children spend fortnightly weekends together.  He argues that certainty and routine can be provided on his proposal.  Any “gaps” provided by the children spending the weekend prior to and the weekend immediately following school holidays with a particular parent are mitigated by the intervening school holiday time. 

   ii)The father works at (omitted). His obligations to drop the children off on Monday mornings necessitate him starting late on those days, which would be each second Monday. He says that if he can drop the children off nearer to where he spends the Sunday nights with his parents near (omitted) then he would be able to start work earlier on the Monday. He says that his proposal is more equitable in the sharing of time and effort for travelling for the purposes of the children spending time with him.

10. The mother says that each of the arguments proffered by the father were contemplated before his Honour in 2009.  The father anticipated moving to (omitted) at the time of the previous hearing.  The changeover issue was dealt with accordingly.  The mother says nothing has changed.  She says, in any event, she is already obliged to travel some distance herself for the purposes of the return of the children to the current changeover point on Monday mornings.   

11. The mother says that the father’s proposal of a 26-fortnight roster regardless of school holidays is his preference only. She says that it is not her preference. She says that his Honour’s orders operate to suspend weekend time during school holidays and are simple, workable and unambiguous. She argues that this litigation is a further expensive example of the father’s tendency to seek change to suit himself.

12. The orders I am asked to make are parenting orders and hence I am to have the children’s best interests as my paramount consideration.  In determining those best interests I am to have regard to the various considerations set out in section 60CC(2) and (3) of the Family Law Act 1975 (the Act) insofar as they are relevant given the probative evidence and the proposals of the parties. 

13. This matter proceeded by way of submissions and without a testing of the evidence by cross-examination.  In my view, such a procedure is appropriate given the discrete disputes before the court and the previous litigation endured by these parents.  I therefore have only the untested affidavits of the parties themselves which set out their proposals and arguments.  I have no evidence of any probity as to the views of the children in respect of these two issues.  I infer that the children have a meaningful relationship with each of their parents due to the continuation of the previous orders.  Issues of family violence do not feature here.  The mother criticises the father’s attitude generally as being self-interested but I am unable to make any findings on this basis on the untested material. I am unable to find that the changes for the children contemplated by the father’s proposals would have any deleterious impact on them.

Changeovers

1. On reflection, I favour the mother’s argument in respect of this issue.  She is already required to travel some distance to deliver the children to the father at the start of each time with period.  The distance travelled by the father is inconvenient for him but nothing more.  There is no evidence from his employer and I therefore infer that a mutually acceptable employer/employee arrangement has been reached.  There is no evidence of any impact on the children of either proposal.  The current circumstances must have been within the contemplation of his Honour and the father when the matter was previously litigated.  In any event, there is no evidence of any probity before me that the children’s interests would be served by changing the current drop off point.

Holiday suspension

1. Similar arguments apply.  His Honour made orders in contemplation of school holidays. The parties were represented and fully informed at that time. There has, however, been one intervening event or circumstance namely that the father’s partner’s child has a fortnightly weekend regime which on the mother’s preferred model would see that child often out of sequence with X, Y and Z. Whilst it is the best interests of these three children which occupy my consideration, I can see the benefits for the father’s family unit, including X, Y and Z for there to be some consistency in respect of the other child. I obviously cannot make orders which change that child’s regime. I can see no prejudice to the mother in moving to the father’s proposal.  She does not articulate any detriment to her or the children. I accept that any weekend “gaps” will be mitigated by the block holiday times that intervene those weekends. Consequently, on the balance of probabilities, I favour the father’s proposal.

Christmas Day time

1. The parties have reached agreement as to this issue and I will make orders by consent.

Other matters

1. The orders sought by the father in his case summary urge a number of other changes to his Honour’s orders.  However, I received no argument as to these other matters.  I note though that the mother in her material appears to agree with some of the changes sought by the father.  Her affidavit references consent to “orders 4(b), 5 and 9(c)” of the father’s proposed orders.  Without specific argument or submissions, I am unable to be certain as to the precise proposals with which she agrees.  Consequently, prior to the making of the orders above, I will hear from counsel, or the parties’ legal representatives, as to whether or not they wish me to make any further orders by consent.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  14 November 2014