Myer and Edmunds

[2012] FamCA 50

FAMILY COURT OF AUSTRALIA

MYER & EDMUNDS [2012] FamCA 50

FAMILY LAW - CHILDREN – With whom a child spends time – Orders – variation – where the father seeks to increase his time with the child by collecting him from school on Friday afternoon – where the child would benefit from his father being involved with the child’s school and education – orders for the father to collect the child from school on Friday – where the mother seeks an order for the father to collect the child on Saturday during the child’s soccer season – where the mother’s application was not formally listed but was determined in order to finalise all outstanding issues between the parties – where the mother offers no make up time for her orders sought – orders dismissing the mother’s application.

APPLICANT: Mr Myer

RESPONDENT: Ms Edmunds

FILE NUMBER: SYC 5676 of 2010

DATE DELIVERED: 20 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: Scanlan’s Lawyers

COUNSEL FOR THE RESPONDENT: Ms Picker

Orders

IT IS ORDERED

1. That the arrangements for the collection of the child J born … October 2003 for the purpose of weekend time with his father be varied so that J is collected by his father from school at the conclusion of the school day on Friday.

2. That the father collect from the mother’s residence as soon as possible after collecting J, J’s bag containing his medication, the communication book and any other items which the mother has packed for J.

3. That the application of the mother set out at paragraph 2 of the minute of orders filed in Court today is dismissed.

4. That all extant applications be otherwise dismissed.

5. That pursuant to Sections 65DA(2) and 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED

1. The importance of the father being punctual and collecting J on time and of the father ensuring that J’s items and school uniform are returned to the mother on Sunday evening.

2. That all outstanding applications have now been dealt with.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myer & Edmunds has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5676 of 2010

Mr Myer

Applicant

And

Ms Edmunds

Respondent

REASONS FOR JUDGMENT

1. The dispute before the court relates to a child, J, born in October 2003 and now aged eight years of age.  There is no dispute that J is to spend alternate weekends during school terms with his father commencing, initially, at 6pm on Friday afternoon.  Orders were made to that effect on 18 November 2005.  Those orders envisaged that the time with the father would increase incrementally.  By an application filed on 8 September 2010, the father seeks that the time J spends with him increase by his collecting J from school on Friday afternoon.  The mother opposes that application.

2. The extent to which reasons are required in a dispute such as this is more or less extensive depending upon the circumstances in which the reasons are required to be given.  Having regard to the very narrow compass of the dispute between the parties, the reasons which are to be given in relation to this decision will not be elaborate but will indicate, only so far as is necessary, to the parties the basis upon which I make the decision. 

3. The mother has filed an affidavit by herself, an affidavit by her mother and an affidavit by her current partner.  She does not dispute the benefit to J of spending weekends with his father.  Her concerns are related to the pick up time.  Significantly, in her affidavit material, the mother does not assert a significant and continuing pattern of lateness of collection but refers only to one occasion, on Christmas Day, when the father was 15 minutes late.  The mother’s concern that the father may be late to collect J is a valid concern and this court would not countenance in any circumstances J being left waiting to be collected after school.  However, I am not satisfied on the evidence that the father will be derelict in his obligations to be on time or that he will allow J to be left waiting.

4. The father is a self-employed tradesman.  His evidence is that the travel time for the father and J on Friday afternoons is more than two hours.  If the father collects J directly from school, there will be further time that they can have together on return to the father’s home which might not otherwise be available.  That, however, is not the main reason that I propose to make the orders which the father seeks.  The father believes that he will have the opportunity to interact with J’s teachers if he is allowed to collect J from school.  Realistically, that is probably unlikely given that the teachers will be involved in supervising children being handed over and collected by their parents.

5. However, that is not the only benefit to J of the father collecting from school.  The evidence of Mr L, the Family Consultant, given today, was very clear.  Mr L said that it was a very healthy thing, from a child’s perspective, to see both of the child’s parents involved in the child’s education, involved with their friends and their activities and their teacher.  Mr L said the more the father is able to be connected with school, the more he will be able to communicate with the school community and the more he will have direct interaction with J about this important area of J’s life.

6. Mr L also gave evidence that it is important for J simply to see his father at his school and to see his father say hello to members of the school community.  J will, in addition, be able to introduce his friends to his father and that will be another advantage to J.  The mother has raised concerns about the medication and communication book being sent to school on Friday afternoons.  I accept that those are valid concerns.  The father, in his affidavit evidence, says that he is able to call by the mother’s house on Friday afternoons to collect J’s medications and the communication book and, by inference, any bag that J may be wishing to take to the father’s house at the weekend.

7. That will also have the advantage that J’s school bag can be dropped off at the mother’s home if it is not required for homework over the weekend.  I expect the father to be conscious of his responsibility not to keep J waiting at the conclusion of school and I expect the father to be conscious of his responsibility to return the whole of J’s school uniform to the mother on Sunday evenings.  I assume, however, that since the mother collects the child from the father on Sunday evenings the complete uniform can be checked before she leaves the father’s premises.

8. In relation to the question of soccer training, which is a further issue raised by the mother, the father indicates to the court that in the event that J’s soccer training for the 2012 soccer season is to take place on a Friday, then he will take J to soccer training.

9. The mother seeks an order that if the child is to spend time with the father during a weekend which falls during the child’s winter soccer season, the child’s time with the father shall commence on Saturday morning and for that purpose, the father is to collect the child on Saturday morning, take the child to soccer and then, as I understand it, from the mother’s submissions, would be in a position to travel back to Sydney with the child.  The father opposes that application.  That application was not formally listed before me today but having regard to the nature of the issues before the court and having regard to the fact that this is the only outstanding issue between the parties, I determined, over the objection of the father’s counsel, to deal with it today.

10. In order to do that, I allowed the father’s counsel to call oral evidence from the father in relation to this specific issue and afforded to counsel for the mother the opportunity to cross-examine. 

11. The father lives in South Eastern Sydney and the mother lives on the Central Coast.  The travelling time between the two homes is at least two hours.  Because of the travelling time, the father’s time with J cannot be as extensive as it might otherwise be if the father and the mother lived in close proximity.  Because of the travelling time, the father’s time with J is limited to alternate weekends.

12. The mother’s application seeks to reduce the father’s alternate weekend time with J on approximately eight occasions per year from a commencement after school on Friday to a commencement on Saturday morning.  That would involve the father in travelling to the Central Coast very early on a Saturday morning.  It would involve J travelling from the Central Coast to South Eastern Sydney on Saturday at some time and back again on Sunday. 

13. The father’s evidence is that J is enrolled to play soccer for a team in South Eastern Sydney and for the past two seasons, J has played every second weekend with the South Eastern Sydney team.  The father gave evidence that J has friends in the team and he socialises particularly with one of the children who plays in the team.  The father also gave evidence that the paternal grandfather and other members of the paternal family attend J’s soccer games.  The mother’s position would involve a cessation of J’s enrolment in the South Eastern Sydney soccer team.  The father’s evidence is that J enjoys playing for the South Eastern Sydney team, he is comfortable with the South Eastern Sydney team and that when J plays soccer at South Eastern Sydney, the rest of the day is then available for the father and J to do things together.

14. The father opposes the arrangement proposed by the mother which would cause him to lose the overnights before the soccer games and it is of particular significance in my decision that the mother offers no time to make up for the time the father would miss if her proposition were accepted.  In order for me to accept the mother’s proposition, I would need to come to the conclusion that J’s attendance at soccer games on the Central Coast was of more importance in J’s life than his time with his father and that is a conclusion which, to me, is not available and I therefore dismiss the mother’s application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 January 2012.

Associate: 

Date:  13 February 2012