MONTAGU & CRIMMINS

[2018] FamCA 493

FAMILY COURT OF AUSTRALIA

MONTAGU & CRIMMINS [2018] FamCA 493

FAMILY LAW – CHILDREN – Extension of the father’s time spent with the child.

FAMILY LAW – COSTS – Application for costs dismissed.

Hawkins & Roe (2012) 47 Fam LR 526

APPLICANT: Mr Montagu

RESPONDENT: Ms Crimmins

FILE NUMBER: SYC 8485 of 2016

DATE DELIVERED: 29 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 26 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITOR FOR THE APPLICANT: Clinch Long Woodbridge

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Karras Partners

Orders

1. That, in addition to the time that E (the child) spends with her father pursuant to the orders made on 27 June 2017, the weekend time provided in Order 1.3 shall be extended to conclude at 9.00 am on Wednesday on one weekend in each short school holiday period and on three alternate weekends in the Christmas holiday period in 2018/19.

2. That the mother’s application for costs in relation to the proceedings before the Senior Registrar on 25 January 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8485 of 2016

Mr Montagu

Applicant

And

Ms Crimmins

Respondent

REASONS FOR JUDGMENT

1. Mr Montagu (“the father”) and Ms Crimmins (“the mother”) are the parents of E (the child] who is aged four years. She will be five years old in August. The child attends pre-school on Monday, Tuesday and Wednesday during school terms and she will start school in 2019.

2. The parents separated in October 2016 and proceedings commenced shortly thereafter. In February 2017, orders were made after an interim hearing which provided for the child to spend time with the father, in each two week cycle, from after day care on Tuesday until 4.30 pm on Thursday in the first week and, in the second week, from after day care on Tuesday until the start of day care on Wednesday and from after day care on Friday until 5.00 pm on Sunday.

3. At the time the orders of February 2017 were made, the child was attending a day care facility that operated for extended hours allowing for both early drop off and later collection and the father was self-employed with flexible working hours.

4. On 27 June 2017, consent orders were made which confirmed the February 2017 arrangements and also allowed for special occasions.

5. On 23 October 2017, consent orders were made for the appointment of a single expert, Dr S, who is to prepare a report. Dr S has scheduled interviews for September 2018.

6. In late October, the mother raised with the father the prospect of changing the child’s pre-school. She invited the father to attend an orientation session at the new pre-school but he did not attend.

7. In November 2017, a limited issues Family Report was prepared. The reporter recommended, inter alia, that the child spend five days in each school holiday period with the father.

8. Also in November 2017, the father indicated that he did not oppose the change of pre-school provided that the mother agreed to extend the time the child spent with him. In the proceedings before me, counsel for the father said that, at the time, the father was not aware that the proposed new pre-school did not operate for extended hours.

9. No agreement was able to be reached.

10. The mother filed an application in a case in relation to the change of pre-school which was heard by Senior Registrar Campbell on 25 January 2018. The father, in response, sought to extend the time the child spent with him. The Senior Registrar permitted the mother to enrol the child in the new pre-school and directed that the father file written submissions in relation to the mother’s application for costs. The father’s application for additional time with the child was unsuccessful.

11. On 29 January 2018, the father commenced employment where he is required to work between 8.30 am and 5.30 pm on week days. As a consequence, he is no longer available to care for the child on alternate Thursdays.

12. The father has sought to review the decision of the Senior Registrar and thus the matter comes before me for hearing.

13. It is the father’s case that he is no longer able to drop the child off at pre-school or to collect her after pre-school because the pre-school operates between 8.30 am and 4.00 pm. Although his application was to set aside the order which permitted the mother to enrol the child in the new pre-school, it was, sensibly, conceded that as the child has been attending the new facility for six months and will start school in 2019, it is not practicable to change her pre-school for the next six months and that application was abandoned.

14. He seeks to vary the time the child spends with him as follows:

    Week 1

    (i)From 6pm Tuesday until 7.50am on Wednesday;

    (ii)From 6pm Wednesday until 7.50am Thursday

    (iii)From 6pm Thursday until 7.50am Friday

    Week 2

    (i)From 6pm Tuesday until 7.50am Wednesday

    (ii)From 6pm Friday until 5pm Sunday.

15. He also seeks an order that the child spend seven nights with him in a block period in each of the short school holiday periods and also in January 2019.

16. The mother opposes any change to the existing regime.

17. At the present time, on the days when, pursuant to the current orders, the father is to collect the child from pre-school or deliver her to pre-school, but is unable to do so because of his work commitments, the mother collects her in the afternoon and cares for her until the father is available. In the mornings, the father delivers the child to the mother and the mother takes her to pre-school.

18. There is no evidence in the father’s case that the current arrangements are causing any difficulties for the child, rather his counsel submitted that the arrangements were not “fair” because he is no longer able to care for the child on alternate Thursdays.

19. The current arrangements have the child spending time with her father on Tuesday night and Wednesday night in the first week of the cycle and on Tuesday night and from Friday afternoon until Sunday afternoon in the second week, a total of five nights each fortnight.

20. The father’s proposals would extend that time so that the child would spend three nights with her father in the first week of each two week cycle. On the first two of those occasions, she will be collected by her mother from pre-school and then collected by her father from the mother’s care. On Thursdays, she does not go to pre-school and is cared for by her mother. The total number of changeovers involved in the father’s proposal is 10 in each fortnight. Both parents submitted that the relationship between them is acrimonious.

21. Nothing in the evidence suggests that the child is other than settled in the current arrangement. It is not clear on what basis, other than “fairness’, it is in the child’s best interests to have another two changeovers added to the current arrangement.

22. The child will attend school in 2019 and it is likely that her care arrangements will have to be revisited then. When she is attending school, it is unlikely that she will be able to sustain the current number of overnight stays during the school week. When those arrangements are re-visited, the parents will have the advantage of Dr S’s views about what is appropriate for the child.

23. I am not persuaded that there is any advantage to the child in changing the term time care arrangements that have been in place since February 2017 when those arrangements will have to be re-visited in 2019.

24. However, I accept that it is appropriate for the child to spend some extended time with the father in school holiday periods, provided he is available to care for her. In November 2017, the Family Consultant recommended that the child spend a block period of five nights with her father in school holidays. This can be achieved by extending one weekend period in the short school holidays so that it commences on Friday afternoon and ends on Wednesday morning. In the long summer holidays, in 2018/2019, each weekend can be similarly extended.

COSTS

1. The mother applied for costs before the Senior Registrar. That application has not yet been determined. The father has filed written submissions and it is agreed that I should determine that application.

2. The application falls to be determined pursuant to the provisions of s 117(2A), bearing in mind the judgement of the Full Court in Hawkins & Roe (2012) 47 Fam LR 526 where the Full Court held:

   [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

   [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

3. Their Honours further stated at 549:

   [146] While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

   [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

4. Although the father was completely unsuccessful before the Senior Registrar, I do not consider that it has been established that his conduct otherwise comes within that category of conduct to which the Full Court has referred in Hawkins & Roe.

5. No order for costs will be made.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 June 2018.

Associate: 

Date:    29 June 2018