Mulroney and Simons
[2014] FCCA 2573
•21 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MULRONEY & SIMONS | [2014] FCCA 2573 |
| Catchwords: FAMILY LAW – Consideration of what changeover orders are to be made to facilitate final parenting orders made by consent. |
| Legislation: Family Law Act 1975, s.60CC |
| Applicant: | MR MULRONEY |
| Respondent: | MS SIMONS |
| File Number: | NCC 1379 of 2012 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 23 and 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Dubbo |
| Delivered on: | 21 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Brien |
| Solicitors for the Applicant: | Jennings & Kneipp |
| Counsel for the Respondent: | Mr Dalzell |
| Solicitors for the Respondent: | Warwick McCarthy & Co Solicitors |
ORDERS
To facilitate paragraph 7.11 of the Terms of Settlement made into Orders on 24 October 2014 the mother shall deliver the child X born (omitted) 2006 (hereinafter X) to the father at the beginning of the period in (omitted) at the home at which X will be staying and the father shall return X to the mother at (omitted) Bakery at the end of the period.
To facilitate paragraphs 7.14 and 7.15(ii) to (iv) of the Terms of Settlement made into Orders on 24 October 2014 the mother shall deliver the child X to the father at McDonald's (omitted) at the beginning of the periods and the father shall return X to the mother at the (omitted) Bakery at the end of the periods.
IT IS NOTED that publication of this judgment under the pseudonym Mulroney & Simons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ORANGE |
NCC 1379 of 2012
| MR MULRONEY |
Applicant
And
| MS SIMONS |
Respondent
REASONS FOR JUDGMENT
Introduction
X born (omitted) 2006 is the only child of the relationship between Mr Mulroney (hereinafter the father) and Ms Simons (hereinafter the mother).
The father lives in (omitted) Queensland on a property with his parents.
The mother and X live in (omitted) a village about 25 kilometres from (omitted).
The parties’ case for parenting orders was listed for final hearing on 23 and 24 October 2014.
The parties were able to negotiate a final settlement relating to all parenting issues except they could not reach agreement as to what changeover arrangements are to apply for some of the periods of time that X is to spend with the father pursuant to the orders made on 24 October 2014. They could agree changeovers for some of the periods. The periods about which they could not agree relate to paragraphs 7.11, 7.14 and 7.15(ii) – (iv) of the Terms of Settlement made into Orders.
In Summary the orders made by consent provided for the mother to have sole parental responsibility for X, for X to live with her mother and for X to spend time with her father initially supervised and then unsupervised.
The initial periods of time X spends with her father are about six to seven hours in length leading up to 14 February 2015 when X will have her first unsupervised period of time with the father.
From early May 2015 those periods of time become overnight periods and by 2016 those periods of time become overnight one weekend a month and for half of school holiday periods.
Agreed Facts
In addition to the above background the case proceeded on a number of agreed facts as follows:-
a)The estimated petrol costs for the father to travel from (omitted) Queensland to (omitted) New South Wales and return is approximately $350 to $400.
b)The father works as a (occupation omitted) casually one day a week earning on average $300 gross per week.
c)The father lives with his parents and works on their property up to five days a week and is paid in kind for that work by board, food, some car expenses and personal incidental expenses.
d)It is approximately a six hour drive from (omitted) Queensland to (omitted) New South Wales. To make a 9am pickup in (omitted) the father would have to leave (omitted) Queensland by 3am.
e)The mother and X’s home in (omitted) is a further 25 kilometres from (omitted).
f)The mother works part time up to three days per week earning about $130 per day.
g)The mother has an older child Y from a prior relationship who is aged 18 and who completed her Higher School Certificate in 2014.
h)The mother receives child support by way of assessment from the father for X in the sum of $7 per week. She also receives Centrelink payments being Family Tax Benefit A and B.
i)The travel time from (omitted) to (omitted) is about two and a half hours and the mother’s petrol costs for that return trip is about $80 to $95 dollars.
Orders Sought
With respect to the changeover arrangements about which the parties disagree the father sought[1] the following orders:
For the time the child is to spend with the father outlined in Order 7.11, contact changeover is to take place at McDonald's (omitted) with each party to pay their own costs.
For the time the child is to spend with the father in Order 7.14, contact changeover is to take place at McDonald's (omitted) and each party is to pay their own costs.
For the holiday time the child is to spend with the father outlined in Order 7.15(ii) and (iii), changeover is to take place at McDonald's (omitted).
Except as otherwise provided, collection and return of X for the monthly contact as outlined in Order 4, 7.1 – 7.10, 7.12-7.13 and 7.15(i) shall occur at the (omitted) Bakery.
[1] Pursuant to a Minute of Order marked Exhibit ‘1’
With respect to changeover arrangements about which the parties disagree the mother sought that all of those changeovers occur at the Bakery in (omitted).
Determination
Even though the issue in dispute is narrow and relate to changeover arrangements, the orders sought are a type of parenting order and therefore fall to be determined having regard to the best interest of X being the paramount consideration.
The orders must also be reasonably practicable.
The orders for X to spend time with her father are limited in time and duration.
Where possible and reasonably practicable more time together between X and her father will make their relationship more meaningful. Whilst time travelling together in a car is time spent together it is not time that enables consistent parent/child interaction as in this case the father will need to concentrate on his driving and over time X is likely to become bored.
There is no evidence as to X’s views as to the travel and transportation arrangements.
More time spent together with her father, outside of the motor vehicle, will further develop X’s relationship with her father.
X has a closer and more attuned relationship with her mother than she does with her father. The burden of maintaining X falls more significantly on the mother than the father as his child support is limited to $7 per week and any costs that he may incur relevant to X when X is spending time with him.
The determination of this case is all about the practical difficulty and expense of transporting X of the long distances that exist between the parents homes.
To an extent this has been caused by the father’s move to (omitted).
Each of the parents have limited financial capacity.
Also relevant pursuant to s.60CC(3)(m) of the Act is the long distances that the father has to travel. If for example he travels to (omitted) for six hours to collect X and immediately returns to (omitted) he will have driven for not less than twelve hours. Fatigue and concentration might then become an issue for him and this might create some risk for X who is a passenger in the motor vehicle.
The period provided for in paragraphs 7.11 of the Terms of Settlement is the first three night overnight period that X will spend with the father.
Paragraph 10 of the Terms of Settlement requires that that period take place using a base in (omitted) for the overnight periods.
Exhibit ‘2’ shows the distance from (omitted) via (omitted) to (omitted) to be 207 kilometres or about a two and a half hour drive.
The mother and X would need to leave (omitted) somewhere between 6am and 6.30am to make a 9am drop off in (omitted).
If the changeover is in (omitted) the father would have driven six hours to get there and then need to drive another two and half hours to get to (omitted) exposing X to a risk arising from the possibility of driver fatigue and attendant lack of concentration for him.
This risk is minimised if the mother delivers X to (omitted) at 9am at the beginning of the period. The mother will have driven for two and a half hours to effect this, and so fatigue should not be an issue for her.
If the mother picks X up from (omitted) at the end of the period it results in her having about a five hour drive whilst the father’s time travelling with the child would be two and half hours. The risk to X is therefore reduced if the father returns X to (omitted).
The petrol cost of about $80 to $95 for the mother on delivery and half that amount for the father on return, ensuring each can afford it.
In summary about the period provided for in paragraph 7.11 to minimise risk for the reason set out above and to increase the period of time changeovers shall take place at (omitted) at the beginning and (omitted) at the end of the period. The cost this will impose on the mother and father is not so excessive as to make it not reasonably practicable.
The period provided for in paragraph 7.14 of the Terms of Settlement is a five night period incorporating Christmas Day in 2015. In all likelihood the father would want to spend that period of time in (omitted) with X.
If changeover for that period at the beginning is in (omitted) his total travel time will be reduced from a twelve hour round trip to a seven hour round trip and this reduces the risk to X from driver fatigue. The cost to the mother would be about $90. Again the father can return X to (omitted) at the end, a six hour drive for him and a five hour round trip is saved for the mother. This risk to X is almost identical. This will also result in a partial sharing of the petrol costs.
The periods provided for in paragraph 17.15(ii) – (iv) of the Terms of Settlement relate to school holiday periods commencing from 2016.
For reasons already set out a reduction in the father’s time at the beginning of the period reduces X’s risk and for that reasons changeover at (omitted) at the beginning of the period is to occur.
At the end of the period the father is to return X to (omitted). This is for the same reason as discussed in paragraph 33 hereof.
He can then elect whether he stays overnight at (omitted) or returns home or makes some other arrangement, to manage his fatigue on the return trip.
Because these periods beginning and end so close to each other the incurring of $90 by the mother twice in a school holiday period would severely restrict her available finances. Once will likely be manageable, twice would not. Therefore a return by the father of X to (omitted) at the end of these periods will not be too long a drive and will result in a sharing of the financial burden and will therefore be more reasonably practicable.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 21 November 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Jurisdiction
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Procedural Fairness
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