Mulligan and Mullins

[2018] FamCA 437

FAMILY COURT OF AUSTRALIA

MULLIGAN & MULLINS [2018] FamCA 437

FAMILY LAW – CHILDREN – Final parenting orders – where the parents’ consent to final parenting order – where the parties are unable to agree on changeover location – where the father seeks to change the changeover location as provided in the current interim orders – where the parents live two hours apart – where the father seeks a greater sharing of the travel.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mulligan

RESPONDENT: Mr Mullins

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8731 of 2016

DATE DELIVERED: 17 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 17 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teicher

SOLICITOR FOR THE APPLICANT: Hicks Oakley Chessell

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED

1. That all previous parenting orders be discharged.

2. That the parents hold equal shared parental responsibility for the child X (born … 2004).

3. That in default of agreement, the child live with the Mother.

4. That in default of agreement, the Father spend time with the child as follows:

   (a)On alternate weekends from Friday to Sunday commencing Friday 1 December 2017.

   (b)For half of each of intra school Term holidays, in default of agreement that if the holidays commence on a weekend that the child would usually spend with the Father, then the Father have the first half and if school breaks on the eve of a weekend when the child would usually spend with his Mother, then the Father have the second half of the school holidays. (The resumption of alternate weekend time commences when school resumes and falls on the next weekend as if the holidays had not intervened).

   (c)For the Autumn school holidays in each year, to allow for Easter and for the child to spend each alternate year with the Father and Mother, the half holiday period is determined where Easter falls. the child will spend time with the Father at Easter in each alternate year commencing 2019 and the half of the holidays that the child spends with the Father will be determined by where Easter falls.  In 2018 the child will spend time with the Father in the second half of the Autumn school holidays and in 2019 the child will spend time with the Father in the second half of the Autumn school holidays.

5. Unless otherwise agreed by the parents in writing, for the long summer school holidays, the Father have the first half in odd numbered years (until 10 January) and the second half in even numbered years (commencing 10 January) with the child to be with the Mother for the first half in even numbered years and the second half in odd numbered years (noting the commencement date of the holidays set it as an even or odd year).

6. During the Christmas school holidays the schedule of alternate weekend times will be suspended and will resume following the school holidays as if it had proceeded without interruption.

7. In the event that Father's Day does not fall on a weekend that the child is due to spend time with his Father then this weekend will be spent with the father in addition to the alternate weekends.

8. In the event of Mother's Day falling on a weekend that the child is due to spend time with his Father, time is suspended that weekend to allow for the child to spend the weekend with his Mother.

IT IS ORDERED BY COURT:

(8A)For the purpose of changeover for Orders 4 to 8 inclusive:

Changeover

(a)       At the commencement of time spent:

(i)At the Father’s election and with prior written notice to be given not later than 24 hours before the commencement of time spent, the Father collect the child from school at its conclusion or the Mother’s residence at 6:30pm on Friday;

(ii)During the basketball season, the Father collect the child from the Mother’s residence at 2:00pm on Saturday and shall take the child to basketball training and/or any games as scheduled; and

(iii)Such other agreement as agreed to by the parties in writing.

(b)       At the conclusion of time spent:

(i)Subject to paragraph c and d: the Father is to deliver the child and the Mother is to collect the child from B Town train station at 4:30pm;

(ii)The Father may return the child to the Mother’s residence at 6:30pm upon him having provided the Mother with prior written notice of such intention, notice to be given not later than 10:00am on the day of the conclusion of time spent; or

(c)By 12:00pm noon on the Thursday prior to the child spending the weekend time with his Father, the Mother shall advise the Father by text as to whether Mr C Mulligan is rostered on to work on the following Sunday and provide such part of his roster as necessary to confirm this with the Father;

(d)In the event Mr C Mulligan is not rostered on to work the following Sunday the Father is to deliver the child and the Mother is to collect the child from D Town train station at 4:30pm that day.

BY CONSENT IT IS ORDERED

1. That in default of other agreement the Father may telephone the child twice per week between 6:00pm and 7:00pm each Monday and Thursday. the child is to be afforded privacy in his conversations with his father. the child may telephone his father at any reasonable time provided that he abides by the school rules regarding telephone use when he is at school.

2. That in the event that either parent has concerns regarding the content of the child's phone calls they are to communicate these concerns to each other via email and not allow them to be raised in the presence or hearing of the child.

3. Each parent will do all acts and things reasonably necessary to make their own appointments with Professor E and Ms F in order to be provided with information about their treatment of the child and advice as to any medication or strategies they have prescribed or recommended and their opinion of the child’s current health.

4. Each parent will provide all necessary authorities to enable Professor E,  Ms F and G Town High School staff to communicate, to ensure the child is properly supported in the school environment and that his treating professionals have relevant information.

5. The father will be responsible to make appointments for the child to attend an optometrist and a dentist as required.

6. The Father will provide details to the Mother of the appointments made for the child with the optometrist and dentist no less than a week prior and each parent will do all acts and things reasonably necessary to ensure these professionals have access to all previous records for the child if required, prior to the appointments being attended.

7. In the event the child suffers an emergency or a serious illness or injury in the care of either parent, the parent having care of the child at the time will:

   (a)as soon as practicable but no later than 4 hours after the incident occurs, notify the other parent of the illness or injury;

   (b)notify the other parent the details of the hospital, medical or allied health practitioner treating the child on an emergency/urgent basis;

   (c)provide any necessary authority to enable the other parent to attend an appointment or consultation, obtain information and/or liaise with the professionals treating the child on an urgent basis;

   (d)provide to the professionals treating the child on an urgent/emergency basis the name and contact details of Professor E, Ms F and any relevant treating professional of the child, including his general practitioner’s details and if recommended by the emergency professional will attend upon the child’s relevant treating professionals.

8. If the child suffers an illness or injury during a period of school holidays and requires immediate treatment, such treatment is to be located in the area where the child is spending the holidays unless otherwise agreed or unless otherwise recommended by the treating professional. The required treatment may commence in the area where the child is spending the holidays but any follow-up appointments can be organised and occur at a place close to where the child lives once the school holiday time has finished.

9. Current issues regarding treatment of the child’s Severs disease are to be co-ordinated between the Father taking the child to a podiatrist in H Town (Ms L) and the Mother taking the child to his GP and physiotherapy and each parent is to authorise these treating practitioners to liaise with each other for the purpose of properly co-ordinating the child’s care for this health issue.

10. That except in the case of emergency the parents will communicate with each other regarding the child, in the first instance, by email. This does not prevent telephone arrangements and updates being made. Pursuant to this both parties are to ensure that they keep the other updated with their contact details for phone, address and email.

11. That save in the case of emergency medical treatment, neither parent is to take the child to an existing medical professional or support service without notifying the other parent at least one week in advance and providing to that parent, all relevant appointment details and contact information. In the event of emergency, the other parent is to be provided this information as soon as practicable (and no later than 4 hours).

12. That neither parent is to change the child's current treating professionals (Professor E,  Ms F, J Clinic), or take the child to alternative professionals except as follows:

    (a)In the event of either of the current professionals recommending a change or new treating professional; and

    (b)       By written prior agreement between the parents.

13. That both parents are to have access to all reports and information provided by Professor E and Ms F (and any subsequent or alternative practitioners appointed in accordance with Order 20 above) and each parent making an appointment for the child must provide the other with details of this appointment as soon as practicable and in any event within 24 hours.

14. That neither parent is permitted to alter or cease the child's medication or treatment regime from that recommended by his treating professionals without prior written agreement from the other parent.

15. Each parent will seek advice from Mr E and/or Ms F in the event there is an issue in dispute regarding the child travelling entirely on public transport for the purpose of spending time with his father or returning to his mother in accordance with these orders.

16. Save and except for any treatment prescribed or recommended by Professor E, in the event that a new course of treatment or medication is prescribed or recommended by one of the child’s treating professionals, then provided such course of treatment or medication is agreed by both parties in writing the cost of same shall be borne by the parties in equal shares.

17. Neither parent may make arrangements with or for the child that impact upon his time with, or care by, the other parent without prior consultation with the other parent.

18. That neither party is to cause, or allow the child to have any contact, direct or indirect, with Mr K or to cause or allow Mr K to obtain information that would identify the child's address or school.

19. That neither parent will request that the child keep secrets from the other parent.

20. That each parent is to respect the other's right to parent and discipline the child whilst he is in their care. Pursuant to this neither parent will interfere with or undermine discipline decisions of the other. In the event that either parent has concerns relating to the care provided by the other parent they will raise this with the other parent by email and not allow them to be raised in front of the child.

21. That each party is authorised and permitted to provide a copy of these Orders to:

    (a)The child’s school, Prof E, Ms F, psychologist, the child’s treating general practitioner, or any other health or allied practitioners treating the child, in accordance with these orders.

22. Each parent will do all acts and things reasonably necessary to contact the school to be provided with relevant information about the child.

23. Conditional upon the parents having agreed prior to engagement of a service being provided, each parent will do all acts and things necessary to authorise the child’s school (or the relevant service) to send the balance of any bill incurred due to a professional attending at or through the school for the child to each parent and the parents are responsible for half of the cost of any such fee balance. 

24. Within 14 days of the making of these orders the Independent Children’s Lawyer is to explain these orders to the child regarding the contact arrangements and generally that his parents have agreed on how to make decisions together for his care.

25. The appointment of the Independent Children’s Lawyer is discharged 3 months from the date of the said orders being made for the purpose of ensuring that all relevant professionals and the child’s school have the necessary authorities to enable liaison if and when required.

26. The Independent Children’s Lawyer is authorised and permitted to provide a copy of these orders to Professor E, Ms F, G Town High School, Ms L, J Clinic.

27. That all extant applications be dismissed.

28. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS:

A. Each parent intends to encourage, support and assist the child to become confident and able to travel safely for the purpose of changeovers by public transport. Each parent wants the child to know that it is their aim for him to be able to travel independently by public transport, and that they both support this.

B. The parents agree commencing Term 1 in 2018 to engage M Clinic to provide at least 5 speech therapy/social skills sessions for the child at school either once per week, fortnight or monthly, as guided by the clinician, and will consider the viability of further sessions in consultation with the service and each other.

C. That in the event there is a dispute between the parties in relation to a long term issue requiring a decision for the child, the parties agree to attend upon a family dispute resolution practitioner for the purposes of mediation in an attempt to resolve the dispute prior to either party commencing proceedings.

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 Mulligan  & Mullins 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 MELBOURNE

FILE NUMBER: MLC 8731 of 2016

Ms Mulligan

Applicant

And

Mr Mullins

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court the parties having attended mediation with Registrar Mestrovic of the Court in late 2017.

2. The parties were able to resolve all issues save for the question of where changeover of the father’s time should occur. 

3. The background to the proceedings is as follows.  The applicant mother is Ms Mulligan.  She is aged 33 years.  She is engaged in full-time employment.  She resides in G Town. 

4. The respondent father is Mr Mullins.  He is aged 34 years.  He is currently unemployed.  He lives in N Town. 

5. The parties commenced cohabitation in 2003 and separated in 2004. 

6. There is one child of their relationship, X (the child), who is aged almost 14 years.  The child has what is described as high-functioning autism.  He lives with the mother and her new partner, Mr C Mulligan, at the property in G Town.  He has a half-sibling who also lives at that residence, Y, who is aged 11 years.  Y has been diagnosed with a condition, Schizotypal Disorder and also has ADHD.  She has been treated for those conditions since approximately 2011 when she was aged four years.  

7. In addition to Y, Mr Mulligan’s son from a previous relationship has also recently commenced living in the household at G Town. 

8. The father has also re-partnered with Ms O.  They do not live together although they spend significant time together.  Ms O resides in H Town. 

9. The parties have largely agreed with respect to future parenting arrangements for the child.  They consented to orders in February 2017 which provided that the father spend time with the child on an alternate weekend basis, and also provided for time during school holiday periods and special days.  Those arrangements were made at a time when the parties were living in their current respective towns.  I should note that the approximate travel time between G Town and N Town is two hours each way. 

10. Since about 2012 the parties have effected changeovers at the B Town Train Station which, when that arrangement was originally entered into, was approximately an equal distance between N Town and the mother’s previous home in P Town.  Notwithstanding a change in the mother’s living arrangements when she relocated to G Town, the parties have continued with that arrangement. 

11. The father as part of his application before the Court sought a change to those arrangements such that there would be a sharing of the travel.  He seeks an arrangement whereby he collect the child at the commencement of his time from the property in G Town and that the mother return the child to N Town at the conclusion of the time. 

12. The parties agree that there needs to be some variation of those arrangements to accommodate the child’s engagement in basketball, he having recently joined a basketball team and commenced playing games on a Saturday afternoon.

13. The parties are in agreement as to the arrangements that should occur with respect to ensuring that the child can participate in that activity.  To the parties’ credit, they both agree that the child’s interests will be advanced by ensuring that he has that regular extracurricular activity, and both parents support that arrangement. 

14. The mother maintains that the changeover at conclusion of time should occur in B Town.  The submissions made on her behalf and the evidence put before the Court in her affidavit filed 30 April 2018 identifies the following issues from her perspective.  Firstly, she relies upon the fact that father does not pay child support and has not paid child support for a considerable period of time.  The responsibility for the care of the child and his financial support falls squarely upon her.  To require her to drive to N Town in those circumstances is a significant additional financial burden on her household.

15. She also points to the difficulties that arise as a result of the commitments of both she and Mr Mulligan.  Mr Mulligan is employed as a public servant.  He works shifts.  He works on weekends at times and as such is not available to provide care and support to Y, his child with the mother.  The mother also relies upon the circumstances that present as a result of Y’s condition.  From paragraphs 16 on in her affidavit the mother describes the challenges that she faces if required to travel with Y and the child to N Town to facilitate changeovers.  She points to the distance, being a journey of approximately 200 kilometres, that takes two hours each way. 

1. When her partner is working, Y needs to travel with the mother to facilitate the changeover.  She at paragraph 18 of her affidavit deposes as to Y’s difficulties in sitting in the car for extended periods.  She deposes that Y has an inability to control her physical, emotional and mental impulses, that she’s easily distracted.  At paragraph 19 of her affidavit she deposes that the drive is unpleasant and stressful both for Y and also for the child, and she describes later in paragraph 19 as to an incident where Y swallowed a metal necklace during one such journey.  Further, she describes another occasion when Y undid her seatbelt and attempted to climb into the front driver’s seat, grabbing the mother.

2. That circumstance clearly posed a significant risk, not only for the mother and Y, but also for the child.  As a result of those matters, the mother submits that it is appropriate that the father be responsible for the majority of the travel to effect changeovers.  She also submits that the arrangements that have been in place since 2012 have worked well for the children and that there is no reason to effect any significant change to those arrangements. 

3. It was submitted that the mother does what was described as the “heavy lifting” in terms of the bulk of the child’s care, both in terms of financial support as well as on the weekends when the child is in the mother’s care undertaking responsibility for transporting him to medical appointments, including to attendances upon his psychologist.  It is for all of those reasons that she submits that there should be no change to the changeover arrangements. 

4. The father in his affidavit filed 15 May 2018 sought arrangements as set out at paragraph 22 of his affidavit.  It is his view that there should be a greater sharing of the travel, as I have already indicated. 

5. He also proposed that D Town train station was closer to a midpoint destination for changeovers and proposed that as an alternative to a requirement that the mother and he be required to travel the complete distance between the two households.  In his affidavit, the father confirms that he is currently unemployed and in receipt of Centrelink benefits.  During the course of his submissions, the father complained that the burden of travel both ways was a significant financial burden upon him and he raised concerns as to his capacity to meet the costs of that travel. 

6. The difficulty with that submission is that it ignores the substantial responsibility that is carried by the mother in her household in providing for all of the child’s physical needs without contribution from the father.  The father in his affidavit deposes that the child is penalised in the event that the father does not achieve his aims, that is, what he describes as a “fair and reasonable” division in terms of the travel arrangements.  That contention is set out at paragraph 9 of his affidavit. 

7. I do not accept that submission.  The question of the venue for changeover is an issue as between the parents.  It is an issue as to convenience as between the parents. 

8. In the circumstances, I am persuaded that as a result of the position whereby the father is not currently contributing child support and where there are clearly issues as to the impact of extended travel upon the child as a result of Y’s challenges, it is, in my mind, in the child’s best interests that in circumstances where Mr Mulligan is not available due to his work commitments to provide care for Y that the changeovers should occur in B Town. 

9. Given the risks that I have identified if the child were to embark on extended car travel with Y, in my mind, that is an arrangement that is clearly in the child’s best interests.  In the event that Mr Mulligan is available to care for Y, he not being required to work on a Sunday afternoon, I am satisfied that it is appropriate that the changeover occur at D Town station.  That will mean that the mother is contributing to the travel.  It is important from the child’s perspective that he sees that his mother is supportive of his time with the father.   

10. All of the material indicates that already, notwithstanding the clear difficulties the parties have in terms of communication and the challenges they have faced in coming to a position, they now have agreement as to future care arrangements.  In my mind, it is important still that the parties do, where possible, both participate in supporting the child’s relationship with the other parent.  Therefore, I will make orders in the terms of the minute that has been prepared.  I will also make orders in the terms of the minute of consent order that was signed by the parties and presented to the Court on 14 March 2018. 

11. I have had the opportunity of reading the affidavit material and also the section 11F report that was prepared by Ms Q.  Having regard to all of that material, I am satisfied that the proposed consent orders are appropriate and in the child’s best interests.  I note that during the course of the hearing before me, the father did become distressed and left the precincts of the Court.  Nonetheless his mother has remained in Court and heard my Reasons for Judgment.  Hopefully she will be in a position to communicate with him what has occurred in his absence. 

12. I will direct that there be a transcript of my Reasons for Judgment and they will be made available to the parties.  

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 May 2018.

Associate:

Date:  17 May 2018