MORRISSEY & TRELOAR

[2014] FCCA 1959

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRISSEY & TRELOAR [2014] FCCA 1959

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where mother lives in New South Wales – where children live with father in Queensland – best interests of the children – parental responsibility – equal shared parental responsibility.

PRACTICE & PROCEDURE – Venue – change of venue – application transferred to Brisbane Registry.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit Court Rules 2001, r.8.01

Applicant: MS MORRISSEY

Respondent: MR TRELOAR

File Number: SYC 3517 of 2013

Judgment of: Judge Scarlett

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person (by telephone)

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are discharged.

2. The parties are to have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.

3. The children X and Y are to live with the Respondent Father.

4. The children X and Y are to spend time with the Applicant Mother in Queensland from immediately after school on Tuesday 2 September until 5:00 pm on Saturday 6 September 2014.

BY CONSENT UNTIL FURTHER ORDER

1. The children X and Y are to spend time with the Mother as follows:

   (a)from immediately after school on Friday 12 September until the commencement of school on Monday 15 September 2014;

   (b)from immediately after school on Thursday 30 October until the commencement of school on Monday 3 November 2014; and

   (c)for a period of twenty (20) days over the Christmas/January school holidays to include Christmas Day 25 December 2014, such period of time to be at the mother’s residence in New South Wales.

2. For the purposes of Order (5)(a) above the Father will pay the airfares for the children from Brisbane to Sydney and return.

3. The Mother is to be at liberty to telephone the children X and Y each Monday and Wednesday between 6:30 pm and 7:00 pm Queensland time. The Mother will initiate the call to the land line or mobile number of the Father and the Father will facilitate the call. The parties will use their best endeavours to facilitate ‘face time’ calls to enable the Mother and children to see each other.

4. For the purposes of Order (7) above the Father will give the Mother at least one (1) weeks’ notice if he is going to be away with the children which would make them unavailable to receive her telephone calls.

AND IT IS FURTHER ORDERED THAT

1. The Application is transferred to the Brisbane Registry of the Court to be listed for mention before Judge Jarrett on 27 October 2014 at 9:30am.

2. The Applicant Mother is granted leave to attend by telephone on the next occasion. In order to facilitate that attendance, she must provide a landline telephone number to the Registry on which she can be reached.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3517 of 2013

MS MORRISSEY

Applicant

And

MR TRELOAR

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of the parties’ two children, X, aged 9 and Y, aged 5, for orders that:

   a)The children should continue to live with their father;

   b)The parties should have equal shared parental responsibility for the children;

   c)The children should spend time with her:

   i)on the weekend on which Mothers’ Day falls;

   ii)for half of each of the Term 1, Term 2 and Term 3 school holidays;

   iii)for 25 days during the Christmas/January school holidays in each year;

   iv)alternate Christmases;

   v)alternate weekends adjacent to the children’s birthdays;

   vi)telephone and Skype contact; and

   vii)other ancillary orders.

2. The Father, through his then solicitors (he is now self-represented), filed a Response seeking other but not dissimilar parenting orders. He also seeks that the proceedings should be transferred to the Brisbane Registry of the Court.

Background

1. The Mother was born on (omitted) 1982. She resides in New South Wales and is a (omitted) by occupation.

2. The Father was born on (omitted) 1975. He resides in a suburb of Brisbane and is a (omitted) by occupation.

3. The parties were married on (omitted) 2003. They separated on 14 February 2012 and were divorced by Order of this Court on 1 August 2013.

4. There are two children of the marriage. The parties’ daughter X was born on (omitted) 2005. Their son Y was born (omitted) 2008.

5. The children currently reside with their father and have done so since 8 January 2013, when the parties agreed that the children should live with him.

6. It is the Mother’s case that the Father has not allowed her to spend time with the children and she has had very little telephone contact with them.

Procedural History

1. The Mother’s Application was returnable at this Court on 7 July 2014. The Mother attended Court personally, the Father attended by telephone. On that date an Order was made by consent in terms of Order 6(a) in the Father’s Response, that the Mother should be at liberty to telephone the children each Monday and Wednesday between the hours of 6:30 and 7:00 pm Queensland time.

2. The parties were also directed to attend a Child Dispute Conference with a Family Consultant. This took place on Wednesday 20 August 2014.

3. According to the Child Dispute Conference Memorandum to the Court prepared by the Family Consultant, the parties were able to reach agreement, at least in principle, about interim arrangements for the mother to spend time with the children, initially in Queensland on dates in September and November 2014 and then for a period of at least 20 days in New South Wales in the December/January school holidays.

4. When the parties returned to Court today, the Mother in person, the Father (now unrepresented) by telephone, there was some discussion about the proposed arrangements, especially as to the exact dates for the mother to spend time with the children. The Mother was directed to send details to the Father about the exact dates which she was contemplating and the matter was the subject of short submissions to the Court in the early afternoon.

Orders Sought

1. There was a substantial degree of agreement between the parties about the proposed orders. Essentially, the Mother seeks orders that would allow her to spend time with the children in Brisbane on three separate occasions in September, October and early November, as well as a longer period of time with the children in New South Wales during the Christmas/January school holidays.

2. The times in Brisbane would not be during the school holidays, as the children already have another commitment, but during the school term. Essentially, the Mother would collect the children after school and they would stay overnight with her and then go to school the next day. They would also spend time on a weekend with her. She has arranged leave from her employment with (employer omitted) for this purpose.

3. The Father agreed to most of these proposed orders, except for the proposed time from immediately school on Tuesday 2 September until 5:00 pm on Sunday 7 September. The Father pointed out that Sunday 7 September is the day on which Fathers’ Day falls and he submitted that the children should spend that day with him.

4. The Father also sought an order that the children should continue to attend their martial arts classes on days when they were with their mother. He told the Court that he is the instructor.

5. The Mother did not agree to those proposals, pointing out that she had spent very little time with the children.

6. The Father maintained his position that the proceedings should be transferred to the Brisbane Registry, as that city is where the children reside.

Parenting Applications

1. When a Court is asked to make parenting orders, it must have regard to the objects of Part VII of the Family Law Act 1975 (Cth), which are set out in s.60B(1). The Court must also have regard to the principles underlying those objects, which are set out in s.60B(2) of the Act.

2. Section 60CA 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. Section 60CC sets out the way that the Court determines what is in a child’s best interests, having regard to the primary considerations in subsection 60CC(1) and the additional considerations in subsection 60CC(2).

3. Section 61DA requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the children’s best interests to apply the presumption.

4. Section 65DAA applies when the Court has made an order that children’s parents are to have equal shared parental responsibility for them. If that is the case, the Court must consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent or, in the alternative, whether it is both in the children’s bests interests and reasonably practicable for the children to spend substantial and significant time with each parent.

5. All of the above matters have been considered.

Conclusions

1. Clearly, the Court must regard the best interests of the children as the paramount consideration.

2. Both parents, in their Application and their Response respectively, seek orders in the way of equal shared parental responsibility and I propose to make that order. However, as the parents live in different states, it is not reasonably practicable for the children to spend equal time with each parent, nor, in my view, is substantial and significant time reasonably practicable in the current circumstances.

3. However, it is in the children’s best interests to spend defined time with their mother in order so that they can maintain a meaningful relationship with her.

4. I accept the Father’s submission that the children should really be with him rather than their mother on Fathers’ Day this year, although the parties need to consider the desirability and the practicability of the children spending time with their mother on Mothers’ Day next May.

5. I am not persuaded that is necessarily desirable for the children to attend their martial arts classes with their father on the occasions when they are spending time with mother. This would, to my mind, cut too deeply into the time with their mother which is the main purpose of these Orders.

6. The parties wish to continue the Order made on 7 July about telephone contact, so I propose to incorporate it into the current Orders so that there will be one set of Orders that will deal with all interim parenting matters.

7. It is, to my mind, appropriate to transfer the proceedings to the Brisbane Registry, as that is most convenient to the children. The Family Consultant has suggested that there should be a Child Inclusive Conference with a Family Consultant towards the end of January 2015 in order to review the arrangements made today. The Family Consultant also suggested that it would be appropriate for the mother to attend by telephone if the substantive Application is transferred to the Brisbane Registry. I concur with that suggestion.

8. I also consider, with respect to my learned colleague in Brisbane, that once the matter is transferred the mother could also attend by telephone when the matter is mentioned before the Court for directions.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  28 August 2014