Mulligan and Mulligan

[2017] FCCA 3289

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN & MULLIGAN [2017] FCCA 3289

Catchwords:
FAMILY LAW – Parenting – best interests of child – orders.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Applicant: MS MULLIGAN

Respondent: MR MULLIGAN

File Number: PAC 3447 of 2014

Judgment of: Judge Newbrun

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Parramatta

Delivered on: 22 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Fowler

Solicitors for the Applicant: Super & Super Lawyers

Solicitors for the Respondent Self-represented

ORDERS

1. Order 4 of the Court’s orders of 7 December 2017 is varied to include paragraphs 4b) and c) of the mother’s proposed Minute of Order, marked Exhibit A, so that the order reads:

   4. The child spend time with the Father during term 4 school holidays (the “long summer school holidays”):

   (a)In the long summer school holidays commencing in December 2017 and 2018:

   (i)From after school on the last day of term 4 (or 3:00pm if the child is not at school on that day) to 6:30pm on the day which is 14 days thereafter; and

   (ii)From 10:00am on the twenty-ninth day after the last day of term 4 until 6:30pm on the day which is 6 days thereafter.

   (b)In the long summer school holidays commencing in December 2019 and each odd-numbered year thereafter from 10.00am on the day that is 4 days prior to the middle day of the holidays until 10am on the day that is 4 days prior to the first day of the next school term. [Noted, by way of example, if the next school term commences on a Monday then the child’s time with the father will conclude at 10.00am on the previous Thursday].

   (c)In the long summer school holidays commencing in December 2020 and each even-numbered year thereafter from after school (or 3:00pm if the child is not at school on that day) on the last day of term 4 until 10:00am on the middle day of the holidays.

2. Order 7 of the Court’s orders of 7 December 2017 is varied to include paragraph 7a) of the mother’s  proposed Minute of Order marked Exhibit A, so that the order reads:

   7. The time that the child would otherwise spend with the Father pursuant to these Orders is suspended at the following times to the intent that the child will be with the Mother during those times:

   (a)From 3:00pm 24 December until 4:00pm 26 December in 2017 and each odd numbered year thereafter;

   (b)On Mother's Day in each year from 10:00am until 6:30pm.

THE COURT FURTHER ORDERS THAT:

1. For the purposes of changeovers:

   (a)That unless otherwise agreed between the mother and father from time to time, during school term times when the child is due to spend time with the father, the mother shall collect the child from her school and deliver the child to the father at the (omitted) car park situated at the (omitted), NSW, with such changeover to occur no later than 4:15 PM;

   (b)When the time the child is to spend with the father concludes before school on a school day for the child, the father, or his nominee, shall deliver the child to her school at a time designated by the school for children to be delivered to the school at the commencement of the child’s school day;

   (c)That for the purpose of changeovers for school holiday periods, the father shall collect the child at the commencement of the time from the child’s school, or in the event that it is on a day which is not a school day from the mother’s home, and at the conclusion of the time, the mother shall collect the child from the father’s home provided that the father may instead deliver the child to the mother’s home if he has given the mother not less than 48 hours prior notice in writing of his intention to do so;

   (d)The purposes of a)-b) above, a “nominee” of either parent must be one of the following persons or such other person agreed to in writing by the other parent:

   i)Nominees for the mother:

   1.   Mr S

   2.   Mr N

   3.   Ms S

   4.   Ms C

   ii)Nominees for the father:

   1.   Mr J

   2.   Ms L

   3.   Mr J

   4.   Ms M.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3447 of 2014

MS MULLIGAN

Applicant

And

MR MULLIGAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the final hearing of parenting proceedings between the parties in relation to the child X, the parties’ daughter and only child, who was born on (omitted) 2011.

2. At the outset of the final hearing, the parties indicated that they had reached agreement on most outstanding parenting issues, and final consent parenting orders were made in terms of certain proposed orders sought by the mother in her Minute of Orders, exhibit A. However, some issues remained outstanding, including the parties’ competing proposals for changeovers, and competing proposals for Christmas.

3. The Mother resides with the child at (omitted), whereas the father resides at (omitted), near (omitted), some 65 km away, and it takes about 1 hour to drive when traffic is moderate. The father works at (omitted) as a (occupation omitted), and the mother works at (omitted) as a (occupation omitted) in a (employer omitted).

Competing proposals

1. In relation to an aspect of the term 4 school holidays, the mother proposed order 4b and c in exhibit A (exhibit A being the mother’s Minute of Orders sought by her; whereas the father proposed proposed order 21b and c (as annexed to his affidavit filed 4 December 2017).

2. In relation to Christmas, the mother proposed order 7a in exhibit A; whereas the father proposed order 24a in his said affidavit (effectively having the child spend time with the father during the whole of Christmas Day this year). The interim orders of 2 December 2016, in this context, provided that the child was to spend time with the mother from 3 PM 24 December until 4 PM 26 December in 2017 and 2019.

3. In relation to changeovers during school term times, the mother proposed order 8 a in exhibit A; this proposal involves the father collecting the child from her school at the commencement of the child’s time with the father (with the parties agreeing that, at the conclusion of the child’s time with the father, the father shall deliver the child back to her school at the commencement of the child’s school day).

4. The father, for his part, in relation to changeovers, proposed order 25a and b in his said affidavit. This proposal involved, during school term times, the mother dropping off the child at the father’s residence at (omitted).

5. The parties ultimately agreed to a changeover mechanism applicable to school holidays.

Material relied upon

1. The mother relied upon paragraphs 47 and 84 of her Affidavit filed 4 October 2016; and, in relation to her Affidavit filed 4 December 2017, paragraphs 1-7, 19-23, 25, 30, 32- 34. She also relied on Exhibit L, relating to the father’s shift work roster.

2. The father relied upon his Affidavit filed 4 September 2017 (the Court noting that certain aspects of this Affidavit were struck out following objections by the mother).

Legal principles

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

2. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

Evidence and consideration

1. Interim orders were made by the Court on 2 November 2016.

2. In interim order 8a, changeovers, during school term time, the father was effectively obliged to collect the child from her school at the commencement of the child’s time with him, being the Friday afternoon, and the father was obliged to deliver the child to the mother at a particular car park at (omitted). However, in practice what occurred since the interim orders were made, and up to the date of trial, the father was both picking up the child from her school on the fortnightly Friday afternoon, and delivering the child to the child’s school prior to commencement of the child’s school day on the Monday (having stayed with the paternal grandparents at their home in (omitted) on the Sunday night). The father stated that on this Monday, he would attend the child’s school assembly.

3. The child commenced kindergarten in 2017 at the (omitted) public school.

4. The child has been progressing well at school. The mother states that the child is thriving both academically and socially.

5. The mother contends, in paragraph 25 of her most recent affidavit, that the child is often distressed about going to the father’s residence. The mother refers to certain isolated examples in this context (being intermittent occasions). The mother refers to examples of the child crying and stating that she does want to go to the father’s residence and stating that she is going to miss the mother so much.

6. In this context, the Court observes that the mother has taken no steps to have the child seen by any health professional relating to this alleged separation anxiety. The Court notes the father’s evidence, which it accepts, that he has not witnessed any fear, anxiety or distress of the child in relation to the child spending time with him. The Court further accepts the father’s evidence that no schoolteacher of the child has ever mentioned to him any matter relating to alleged separation anxiety, as alleged by the mother. The father stated that every few pick-ups he had had brief chats with the child’s school teachers.

7. The father did not accept the prospect of the child being placed at risk or becoming upset if the mother was to pick up the child from after school on the fortnightly Friday before spending time with the father, having considered the mother’s allegations that the child was intermittently becoming upset on the fortnightly Friday morning when separating from the mother to attend school; in the view of the father such a contention of the mother lacked substance. The Court accepts the father’s evidence in this context.

8. The mother in 2017 has been working from 8:35 AM to 2:50 PM, thereby facilitating the child’s drop-offs and pick-ups from school. The child has a close relationship with the maternal grandparents.

9. The father is aged 40 years, and the mother 37 years.

10. The father, in his affidavit, states that he is seeking a fair and equitable arrangement in regards to changeover. He states that shared responsibility in drop-offs and pick-ups is sought.

11. The father states that he believes that changeover in public and impersonal places are not in the best interests of the child.

12. On questioned by the Court, the mother stated in oral evidence that it would be unreasonable for the child to be picked up by the mother from the father’s residence on the fortnightly Monday before school, having spent time with the father over the weekend, and then driven to school by the mother; the child would be a passenger in the car for a significant period, and become too tired and have difficulties in participating in after school activities.

13. The mother stated that if her proposal for the father to collect the child from after school on the fortnightly Friday was made, that would allow her to catch up on her employment work (such catching up could range from 30 minutes to 2 hours), and attend personal appointments such as medical appointments. In this context, the mother stated that she enjoyed good health. The Court is of the view that the mother could attend such appointments, and attend to important personal matters, on weekends, if not at other times. Further, for example, as far as catch up work was concerned, there was no evidence from the mother that she would be unable to occasionally take the child to school early and leave child in before school care, enabling her to attend work early, and in any event, the mother’s oral evidence as to catch up work was quite vague as to its demands or regularity.

14. On questioned by the Court, the mother stated that theoretically she could attend her personal affairs on the fortnightly Fridays that the child was due to spend time with the father, or do additional work at this time, whilst leaving the child at after school care, then picking up the child and driving her to the father’s residence, albeit that if the mother was to leave the child in after school care for too long, up to 6pm, the child’s routines would not be able to be followed.

15. The mother stated that if she was required to pick up the child on the fortnightly Friday after school, and then drive the child to the father’s residence and return, to enable the child to spend time with the father during school term times, then the round trip could be as long as 2.5 hours.

16. On questioned by the Court, the mother stated that she would be prepared to agree to pick up the child on the fortnightly Friday after school, and then drive to (omitted) to conduct changeover with the father, noting (omitted) was roughly halfway between the child’s school at (omitted) and the father’s residence. The mother stated that she would likely arrive at the (omitted) changeover sometime between 3:45 PM and 4:15 PM. In this context, the mother raised no concern in relation to the potential for any significant separation anxiety of the child. Further, in this context, the father submitted to the Court that such an agreement could potentially assist him.

17. The Court is of the view that such an arrangement would not place the child at significant risk of emotional harm in terms of possible separation anxiety. Further, the Court is of the view that the child’s meaningful relationship with each parent will not be detrimentally affected by such an arrangement.

18. The mother submitted ultimately that this concession from her, in her oral evidence, was made in deference to a question from the Court and did not diminish her evidence and contentions in relation to separation anxiety if she was to be required to pick up the child from school on the fortnightly Friday afternoon. The Court does not accept this submission; the mother was quite forthright in responding to other questions posed to her by the Court and displayed no sense of subservience. One example was her response to the Court’s question posed to her in relation to the mother potentially picking up the child on the fortnightly Monday morning from the father’s residence.

19. The mother confirmed that, pursuant to the interim orders, the child spent time with her from 3PM Christmas Eve 2016 until 2PM Christmas Day 2016.

20. The mother states that she has already made arrangements with the maternal grandparents for the child to spend time with her from 3 PM 24 December 2017 until 4 PM 26 December 2017 (see the interim orders).

21. In the view of the Court, noting the mother’s above arrangements, and the fact that she has told the child about the interim orders relating to Christmas Day, to be spent with the mother, and taking into account that the child will have spent time with the father from the last day of term 4 (15 December 2017), with such time to continue until 14 days thereafter, 29 December 2017, it will be in the best interests of the child that her time otherwise to be spent with the father during this 14 day period, be suspended from 3PM 24 December 2017 until 4PM 26 December 2017, and in each odd numbered year thereafter, as proposed by the mother. The Court is of the view that the child’s meaningful relationship with each parent will not be detrimentally affected in this context.

22. The mother refers to Exhibit L, relating to the father’s work shifts. She submits that of the 15 weekends the child has been spending time with the father, since the commencement of kindergarten in 2017, on 8 Fridays the father had a day off and 7 Fridays were days on which the father’s shifts ended at 2 PM or 4 PM, thus allowing time for the father to collect the child.

23. The father cross-examined the mother.

24. It was put to the mother that should the father be required to pick up the child from school on the fortnightly Friday afternoon, potentially the father would be required to undertake a round trip of at least two hours. In response, the mother stated that the father chose to live in (omitted) and he chose to get a job at (omitted), being a significant distance from the child’s school and residence.

25. The father stated, in cross examination, that whilst in 2017 he had for the majority of the time collected the child on the fortnightly Fridays after school, it had been painstaking, with the father pulling all sorts of strings with his employer, to take a rest day or rostered day off from his work. In this context, the father referred to needing to achieve a swap with one of his colleagues or make a submission to the (employer omitted). In cross examination, the father stated that if he was required to pick up the child on the fortnightly Friday after school, whilst he would be able to spend about an extra one hour with the child, such time would be spent driving the child in Sydney traffic which was not nice. He also referred to the prospect of the child sleeping as a passenger in his car for part of the time that he was driving. The Court accepts this evidence of the father.

26. The father stated that if he was working on a fortnightly Friday, being the Friday when he was due to commence spending time with the child, it might take him 40 minutes to 1 hour to travel from his workplace to (omitted).

27. The Court also takes into account these practicality facts, pertaining to the father, in relation to the Court being of the view that it will be in the best interests of the child that the mother, on the fortnightly Friday that the child is due to spend time with the father during school term times, that she collect the child from school and deliver the child to the father at (omitted).

28. The Court is of the view that the children’s meaningful relationship with each parent will not be detrimentally affected in this context.

29. The Court is of the view, having evaluated relevant considerations under s60CC of the Family Law Act 1975, that it will be in the best interests of the child to make these orders:

    1. Order 4 of the Court’s orders of 7 December 2017 is varied to include paragraphs 4b) and 4c) of the mother’s proposed Minute of Order, marked Exhibit A, so that the order reads:

    4. The child spend time with the Father during term 4 school holidays (the “long summer school holidays”):

    a. In the long summer school holidays commencing in December 2017 and 2018:

    i. From after school on the last day of term 4 (or 3:00pm if the child is not at school on that day) to 6:30pm on the day which is 14 days thereafter; and

    ii. From 10:00am on the twenty-ninth day after the last day of term 4 until 6:30pm on the day which is 6 days thereafter.

    b. In the long summer school holidays commencing in December 2019 and each odd-numbered year thereafter from 10.00am on the day that is 4 days prior to the middle day of the holidays until at 10am on the day that is 4 days prior to the first day of the next school term. [Noted, by way of example, if the next school term commences on a Monday then the child’s time with the father will conclude at 10.00am on the previous Thursday].

    c. In the long summer school holidays commencing in December 2020 and each even-numbered year thereafter from after school (or 3:00pm if the child is not at school on that day) on the last day of term 4 until 10:00am on the middle day of the holidays.

    2. Order 7 of the Court’s orders of 7 December 2017 is varied to include paragraph 7a) of the mother’s  proposed Minute of Order marked Exhibit A, so that the order reads:

    7. The time that the child would otherwise spend with the Father pursuant to these Orders is suspended at the following times to the intent that the child will be with the Mother during those times:

    a. From 3:00pm 24 December until 4:00pm 26 December in 2017 and each odd numbered year thereafter;

    b. On Mother's Day in each year from 10:00am until 6:30pm.

    THE COURT FURTHER ORDERS THAT:

    3. For the purposes of changeovers:

    (a)      That unless otherwise agreed between the mother and father from time to time, during school term times when the child is due to spend time with the father, the mother shall collect the child from her school and deliver the child to the father at the (omitted) car park situated at the (omitted), (omitted), NSW, with such changeover to occur no later than 4:15 PM;

    (b)      When the time the child is to spend with the father concludes before school on a school day for the child, the father, or his nominee, shall deliver the child to her school at a time designated by the school for children to be delivered to the school at the commencement of the child’s school day;

    (c)       That for the purpose of changeovers for school holiday periods, the father shall collect the child at the commencement of the time from the child’s school, or in the event that it is on a day which is not a school day from the mother’s home, and at the conclusion of the time, the mother shall collect the child from the father’s home provided that the father may instead deliver the child to the mother’s home if he has given the mother not less than 48 hours prior notice in writing of his intention to do so;

    (d)      The purposes of a)-b) above, a “nominee” of either parent must be one of the following persons or such other person agreed to in writing by the other parent:

    i)         Nominees for the mother:

    1.        Mr S

    2.        Mr N

    3.        Ms S

    4.        Ms C

    ii)       Nominees for the father:

    1.        Mr J

    2.        Ms L

    3.        Mr M

    4.        Ms M.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  22 December 2017