Mulligan and Tyson

[2014] FCCA 2787

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN & TYSON [2014] FCCA 2787

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary consent orders – changeover – extra-curricular activities – best interests of the children – changeover between parents – whether the children should be picked up from or delivered to the respective parents’ homes – whether changeover should occur at a public place – children’s extra-curricular activities – whether restrictions should be placed on children’s extra-curricular activities.

Legislation:

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

Applicant: MR MULLIGAN

Respondent: MS TYSON

File Number: SYC 4883 of 2010

Judgment of: Judge Scarlett

Hearing date: 26 November 2014

Date of Last Submission: 26 November 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Fernie

Solicitors for the Respondent: JNT Legal

ORDERS

BY CONSENT

1. Orders 1 to 13 inclusive made by consent on 16 August 2010 are vacated.

2. The children of the marriage X born (omitted) 2001 and Y born (omitted) 2004 are to live with the Mother.

3. The Father and Mother are to have equal shared parental responsibility for the children X and Y.

4. The Father is to spend time with the children as follows:

   (a)Each alternate weekend from 6:00 pm on Friday until 6:00 pm on Sunday;

   (b)For half of all New South Wales school holiday periods as agreed between the parties provided that if the parties are unable to reach an agreement with respect to which half, then the Father is to spend time with the children in the first half of all school holiday periods in years ending with odd numbers and the second half in years ending with even numbers with the school holiday period commencing at the conclusion of school on the final day of the school term when the children are required to attend school;

   (c)From 3:00 pm Christmas Day until 6:00 pm Boxing day commencing 2014 and each alternate year thereafter;

   (d)From 10:00 am Christmas Eve until 3:00 pm Christmas day commencing 2015 and each alternate year thereafter;

   (e)Where Father’s Day does not fall on a weekend when the Father is spending time with the children, each Father’s Day from 10:00 am to 5:00 pm and the Father will not spend time with the children on Mother’s Day; and

   (f)At other times by agreement between the parties provided that two (2) weeks’ written notice is provided and for these occasions collection of the children at the commencement and conclusion of spending time will be in accordance with Order (13).

5. The Father must give the Mother reasonable notice if unable to spend time with the children and reasonable notice is not less than two (2) weeks.

6. Order 4(a) is suspended during the Christmas and school holiday periods and recommenced thereafter as per the cycle prior to the Christmas and school holiday periods.

7. Either party is at liberty to forward letters, emails, mail and other items to the other party and upon receipt of the same, the receiving party shall hand the item to the children unopened.

8. Neither party shall take the children overseas or interstate without the prior written consent of the other party and such consent is not to be unreasonably withheld.

9. The Father and Mother must provide to each other, at least one (1) month prior to departure, notice of their intention to take the children on holidays and at least ten (10) days prior to such departure, provide the other party with contact numbers and a detailed itinerary including, without limitation, a date when the children are due to return.

10. Neither party may relocate from where they live without first furnishing to the other at least fourteen (14) days prior to relocating, written notice of the change of address and telephone numbers where they can be reached.

11. The Father is at liberty to contact the school to receive copies of all school reports, circulars and any other documents relating to the children’s schooling.

12. The Father and Mother must notify each other as soon as practicable of any medical issue involving the children whilst in their respective care wherein the children are required to attend a hospital.

AND IT IS FURTHER ORDERED THAT

1. Changeover between the parties where the children go from the care of one party to the care of the other party is to take place at the Coles Express Service Station at (omitted), New South Wales on all occasions except the children’s birthdays which will be subject to the provisions of Order (14).

2. The Father is to spend time with the children on each of the children’s birthdays if those days should fall on a day when the children would not normally be in his care as follows:

   (a)If the birthday falls on a week day from 5:00 pm until 7:00 pm with the Father to collect the children from the Mother’s residence at the commencement of the time and return the children to the Mother’s residence at the conclusion of the time; and

   (b)If the birthday falls on a weekend from 9:30 am until 1:30 pm with the Father to collect the children from the Mother’s residence at the commencement of the time and return the children to the Mother’s residence at the conclusion of the time.

3. Where the children or either of them are to attend a scheduled sporting event or other social activity such as a birthday party then the party who has the care of the children at the time of the event is to ensure that the children attend the event and in order to facilitate this Order, the party who first receives notice of the sporting event or social activity must notify the other party as soon as practicable of the event or activity.

4. Neither party is to commit the children or either of them to attend any social or sporting activity to take place during the time that the children are scheduled to be in the care of the other party without first obtaining the consent of the other party.

5. The parties are restrained by injunction from criticising or denigrating the other party in the presence or hearing of either or both of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4883 of 2010

MR MULLIGAN

Applicant

And

MS TYSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of two children, X, aged thirteen years, and Y, aged ten, to vary parenting orders made by consent in the Family Court on 16 August 2010.

2. The parties have attended a Child Dispute Conference with a Family Consultant, who has provided a memorandum to the Court, setting out areas of agreement and those issues that remain outstanding between them.

3. To their credit, the parties have agreed on most issues and a memorandum has been tendered to the Court, setting out the matters that are the subject of agreement between the parties. Those Orders will be made by consent.

4. The issues that remain unresolved are:

   (a)Changeover between the parties, where the children go from the care of one parent to the care of the other parent; and

   (b)The extent of the children’s extra-curricular activities and whether they unreasonably impinge on the father’s time with the children.

5. As to changeover, the mother claims that changeover should be at a public place, and nominates the Coles Express Service Station at (omitted), which she says is approximately an equal distance between the current homes of the parties. The father submits that he should collect the children from the mother’s home at the commencement of his time with him and the mother should collect the children from his home at the conclusion of his time with the children.

6. The mother prefers that changeover should be in a public place, because she says that the father has used abusive language to her in the past at changeover, which is distressing both to her and the children.

7. The father denies that there have been any untoward incidents at changeover and says that it would be beneficial for the children to see their parents speaking in a civil manner towards each other at changeover. He also raises a concern that the current arrangements involve a lot of his time with the children being spent in travelling with them.

8. The children are involved in basketball on a Friday and riding motor cycles on a Sunday, at which they appear to be very proficient.      

Background

1. The parties were married on (omitted) 1995 and separated on 15 December 2004. They were divorced by Order of this Court on 18 April 2013.

2. There are two children of the marriage:

   a)X, born on (omitted) 2001; and

   b)Y, born on (omitted) 2004.

3. The children live with their mother and spend regular time with their father in accordance with Consent Orders into which they entered on 16 August 2010.

4. The mother remarried on (omitted) this year.

Procedural History

1. The father commenced these proceedings by filing an Initiating Application in the Family Court on 19 August 2014. The Application was returnable on 20 October.

2. The mother filed a Response and a supporting affidavit on 17 October 2014.

3. On 20 October 2014 Registrar Cameron transferred the proceedings to the Federal Circuit Court, listed for mention on 3 November.

4. On 3 November the parties were directed to attend a Child Dispute Conference, which took place on 24 November. The Family Consultant noted that a number of issues had been resolved, but the parties were at arms’ length on the issue of changeover.

5. The matter came back to Court on 26 November, at which time the parties made submissions about the outstanding issues.

Evidence

1. The father relied on his affidavit of 27 October 2014. The mother relied on her affidavit of 15 October 2014. Mr Fernie, who appeared for the mother as agent for her solicitors, JNT Legal, told the Court that the mother also relied on the Child Dispute Conference Memorandum to Court of 24 November. He also tendered three printouts from Google Maps, showing the location of the Coles Express Service Station at (omitted) and the location of the mother’s residence.

2. The Family Consultant noted in her memorandum to the Court that the issue of the changeover location was unable to be resolved as the parties remained “entrenched in their respective positions”.

3. The Family Consultant commented on the parties’ differing accounts as follows:

   If the father’s account is true and there is little or no conflict between the parents at changeover, then ideally it would be nice for the children to be able to have changeovers at the parents’ homes and see their parents being friendly and welcoming with each other. It would also allow the children to maximise their time with their father on a Sunday if the mother picked the children up from his home.

   If the mother’s account is true, then it may protect them from conflict and may be more comfortable for them for changeovers to occur at a neutral/public location.

4. The Family Consultant suggested that it could be of assistance to speak with the children to clarify how they perceive their parents’ relationship and how changeovers might be more comfortable for them, but warned that it would be “very unfortunate to involve the children in court proceedings for such a minor dispute”. She suggested that the cautious option may be for changeovers to occur at a public location but if the father had serious concerns, then a Child Inclusive Conference could help to resolve the issue.

5. To his credit, the father told the Court that he did not wish for the children to be involved in a court dispute between their parents.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it must have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child (or children, in this case) as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her (or their) parents to have equal shared parental responsibility for the child (or children);

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.

Conclusions

1. The parties have agreed upon a number of orders, including equal shared parental responsibility, which does not therefore need to be considered further. The parties have also agreed on the amount of time that the father will spend with the children. The parties have not considered an equal time arrangement as being in their children’s best interests, and it would appear not to be reasonably practicable, in any case.

2. The parties have agreed on the time that the children will spend with the father that comes reasonably close to substantial and significant time.

3. The Court must consider the children’s best interests as the paramount consideration. There is a benefit to the children in having a meaningful relationship with both their father and their mother.

4. Against this, the Court must balance the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The mother claims that the father has used abusive language to her at changeover, but the father denies it.

5. As the Court has not heard oral evidence, there has not been an opportunity to test the parties’ claims on that point.

6. The Court does not have the views of the children, which could have been obtained at a child inclusive child dispute conference, but there is a concern about involving the children in a relatively narrow dispute between their parents. The father made it clear that he did not want to involve the children in that way, which appears to be a child-focused decision.

7. The mother claimed that there was an Apprehended Domestic Violence Order made in 2009, but that is five years ago. There is no current order.

8. In my view, the Court should adopt a cautious approach, as suggested by the Family Consultant. It does not appear to be overly onerous on either party for changeovers to take place at the Coles Express Service Station at (omitted). It would be beneficial for the children to see their parents to act in a friendly and polite way towards each other, but there is nothing to stop them acting in that way at the Service Station – indeed, it is to be encouraged, and if there is ongoing polite and cordial dealing between the parents then the parties may come to the stage of deciding that changeover could take place at the their homes.

9. The father has some concerns about the children’s extra-curricular activities, although he spoke positively to the Court about the children’s prowess on motor cycles. I am prepared to make an Order that the mother does not arrange any extra-curricular activity for the children that would impinge on the father’s time with them, at least not without his consent.

10. However, it must be borne in mind that is should not be regarded as a hardship by the non-residence parent to take the children to sporting and social activities. That is what parents do. All over Australia, every weekend of the year, there are parents by the hundreds of thousand taking their children to and from sport, birthday parties, dancing classes, music lessons, karate, swimming training and a myriad of other activities in which children are involved. There is even a phrase “soccer mums” to describe mothers who take their children to football and watch their children’s performance with enthusiasm.

11. It is not realistic for a non-residence parent to expect that the children’s time with that parent will be activity-free, so that the children are entirely free to devote their time to that parent, although I hasten to add that the father in this case has not suggested that this should be the case. However, as a general rule, whether or not children’s parents are living separately or together, they are involved on weekends in taking their children to and from these activities.

12. As I said, that is what parents do.    

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  28 November 2014