Onofri and Calise

[2014] FCCA 690

FEDERAL CIRCUIT COURT OF AUSTRALIA

ONOFRI & CALISE [2014] FCCA 690

Catchwords:
FAMILY LAW – Parenting – definition of time with orders.

Applicant: MS ONOFRI

Respondent: MR CALISE

File Number: DUC 206 of 2013

Judgment of: Judge Dunkley

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Parramatta

Delivered on: 23 April 2014

REPRESENTATION

Solicitors for the Applicant: Dear Loneragan & Hogan

Counsel for the Respondent: Self-represented

ORDERS

1. All prior parenting orders are discharged.

2. The parties shall have equal shared parental responsibility for [X] born [in] 2008 and [Y] born [in] 2010 (“the children”).

3. The children shall live with the mother.

4. The children shall spend time with the father as follows:

   (a)During school term time, each alternate weekend from after school Friday to 5pm Sunday commencing the second Friday of each school term;

   (b)For half of each school holiday period, being the second half in years ending in an even number or zero, and the first half in years ending in an odd number;

   (c)On the weekend including Father’s Day from after school Friday to 5pm Sunday; and

   (d)At such other times as the parties agree.

5. If the father is spending time with the children on the weekend that includes Mother’s Day, his time with the children shall be suspended for the entirety of that weekend period.

6. (a)     The father shall collect the children from school at the beginning of each period provided for in orders 4(a) and 4(c). Until [Y] commences school, the mother shall deliver the child [Y] to the father at the front gate of the child [X]’s school at the beginning of each of these periods.

   (b)The father shall return the children to the mother’s home at the end of each period provided for in orders 4(a) and 4(c).

   (c)To facilitate order 4(b) the mother shall deliver the children to the father’s home at the beginning of each period and collect the children from the father’s home at the end of each period provided for in order 4(b).

7. For the purposes of defining school holiday periods in these orders, school holidays shall be deemed to start at 10am on the day after the last day of term and end at 4pm on the last Sunday of the school holiday period.

8. 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 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ORANGE

DUC 206 of 2013

MS ONOFRI

Applicant

And

MR CALISE

Respondent

REASONS FOR JUDGMENT

1. Ms Onofri and Mr Calise are the parents of [X] born [in] 2008 and [Y] born [in] 2010 (“the children”).

2. The parties and the child [X] lived together in [M] until they separated in June 2009. [Y] was born after the parties separated.

3. After the date of separation the parties remained living in [M] and by agreement implemented parenting arrangements.

4. In late 2010 the mother and children moved from [M] to [G] about 25 kilometres away. The father remained living in [M].

5. In the Local Court at [M] on 23 September 2011 the parties, entered into interim consent parenting orders. Those orders for unknown reasons were never made into final orders.

6. In late 2011 the father moved from [M] to [D] but retained his accommodation in [M] where he stayed when spending time with the children.

7. The father has since moved permanently to [D], where he now lives with his partner and the children of that household. He no longer has accommodation in [M].

8. The travel time by car between [D] and [G] is about 80 to 90 minutes.

9. By some method which is unknown to me the case again came before the Local Court at [M] on 5 December 2012, i.e. some fifteen months after it was last before the Court on 23 September 2011.

10. The case was then mentioned in the [M] Local Court on 23 January 2013, 20 March 2013, 17 April 2013, 22 May 2013 and 19 June 2013 when it was transferred to the Federal Circuit Court of Australia.

11. The Local Court records seem to indicate the Local Court Magistrate was regularly told that settlement was likely to occur.

12. The case had its first directions hearing in the Federal Circuit Court at [D] on 21 August 2013. The case was adjourned on a number of occasions. On each adjournment application the Court was advised settlement was imminent.

13. On 27 February 2014 when settlement had not been finalised, there having been two prior directions hearings in November 2013 and on 21 August 2013, trial directions were made for final hearing.

14. The case was listed for hearing on 4 April 2014 in Orange.  

15. For reasons given earlier on 4 April 2014 the mother’s application for adjournment was dismissed. When the adjournment was not granted the solicitor who appeared as agent for the mother’s solicitors sought leave to withdraw. Prior to withdrawing the agent notified his principal that the principal was required at Court. The principal refused to come despite having sent an earlier email, Exhibit ‘A’ indicating he would attend.

16. Despite multiple Court appearances in both the Local Court and the Federal Circuit Court of Australia the parties have been unable to reach final agreement. They have had broad agreement but no final agreement.

17. Uncertainty and prolonged litigation is not in the children’s best interests. Nor are multiple Court dates an efficient use of scarce public resources.

18. The case proceeded today in the absence of the mother and her solicitor but ‘on the papers’. No medical evidence was provided in support of the adjournment application.

19. In the mothers case I have read:

    a)Her Amended Initiating Application filed 18 March 2014; and

    b)Her Affidavit sworn 2 April 2014 and e-filed the same day.

20. In the father’s case the orders he seeks are as set out in his case outline. In the father’s case I have read the following documents:

    a)His Affidavit sworn and e-filed on 1 April 2014; and

    b)The Affidavit of his partner Ms K sworn and e-filed on 1 April 2014.

21. To ensure the case could proceed the father advised the Court he did not want to cross examine the mother. I advised the father given the case proceeds at his request “on the papers” I would not make findings of fact about evidence about which the parties disagree. He elected to proceed.

22. I also advised the father that orders I make must have as the paramount consideration the best interests of [X] and [Y] and the orders must be reasonably practicable.

23. The father was aware, because I told him, that in deciding the case I can make orders in terms that are sought by neither party if I am satisfied the orders I make are in the children’s best interest and reasonably practicable. He was given the opportunity to make submissions about alternate orders I proposed.

24. Both parties from the documents they have filed agree there should be an order for equal shared parental responsibility. I am satisfied such an order is in the children’s best interest. There is no evidence to the contrary. The parties’ level of communication with each other is good enough to allow such an order. They initially implemented parenting arrangements by agreement.

25. Both parties propose in their documents the children live with the mother and spend time with the father. Again I am satisfied such orders are in the children’s best interests and continues an arrangement that has been in place for a long time. Neither seeks or proposes an equal time order. Given the distance between their homes such an order would not be practicable.

26. From perusal of the orders sought by each party it became apparent that the issues about which they disagreed were as follows:

    a)The finishing time of the alternate weekend period that the children spend with the father. The mother proposed a 4pm finish and the father proposed a 5pm finish.

    b)The definition of the holiday periods that the father would spend with the children, the mother proposed that he have the first half of each of the term one, two and three school holidays and sixteen days in the term four school holidays commencing from 30 December. The father proposed alternating between the first half and second half of the term one, two, three and four school terms.

    c)Time on Father’s Day. The mother proposed that time be from 10.30am to 3.30pm. The father sought the time to be from 5pm Friday to 5pm Sunday.

    d)The father also sought time with the children on the weekend following his birthday. The mother was silent as to what if any orders should be made with respect to time relating to time for the father’s birthday.

    e)The period of time that the father should spend with the children on each of their birthdays. The mother proposed that the period be from 10.30am to 4.30pm. The father sought that it should be from 10.30am to 5pm if he was not already spending time with the children.

    f)The time that would apply at Christmas. The mother sought that the father have time with the children from 5pm Christmas Eve to 11am on 26 December in even numbered years. The father proposed that in even numbered years he have time with the children from 2pm Christmas Eve to 2pm Christmas Day and in odd numbered years from 2pm Christmas Day to 2pm Boxing Day.

    g)The father also sought the possibility of two further periods with the children on two afternoons on each month between 4.30pm and 7pm on the giving of 48 hours’ notice to the mother. The mother was silent as to this proposal.

    h)Transport to and from the parent’s home. The mother proposed that the father undertake all the transportation necessary for the children to spend time with him. The father proposed that the transportation be shared by either the mother delivering the children to him at the beginning of the period and he returning the children at the end of the period or vice versa.

27. During his submissions to the Court the father indicated that he wished to be able to collect the children each alternate weekend from their school and that he would undertake to do the transportation of the children on these days.

28. The father’s varied proposal met the definition of significant and substantial time.

Evidence

1. Each party has re-partnered.

2. The mother lives in [G] with her partner.

3. The father lives in [D] with his partner.

4. The father has had a lengthy period of unemployment.  He does not own a motor vehicle and uses his partner’s motor vehicle.

5. The father is training to be a [omitted] and expects to complete that training in April 2014 and is certain that he will then be able to obtain year round employment at a [workplace omitted] in [D]. He was certain that he would be able to organise his [employment] times so as to be available for the children when they were spending time with him.

6. The mother was critical of the father in moving to [D] from [M] and increasing the distance between their homes.

7. In her Affidavit the mother was critical that the father was not always punctual in collecting and returning the children.

Determination

1. In light of the above evidence and given the long period of time since these proceedings were commenced in the Local Court at Orange it is beyond belief that the parties have not been able to resolve the outstanding areas of disagreement.

2. Such inability is probably indicative of stubbornness and entrenchment by each parent. Such stubbornness is indicative of a poor attitude to the responsibilities of parenthood.

3. Given the issues about which the parties disagreed was minor no family report was ordered.

4. Each party recognises that it is important for the children to have a relationship with the father and to spend regular and frequent time with him. They simply disagree as to the definition of that time. They do however agree it should be for alternate weekend periods for times during school holidays and on special occasions.

5. There is no evidence as to any view expressed by either child.

6. Given the extent of the time that the parties agree the children should spend with the father I am satisfied that they have a good relationship with him and his partner and the children in that household. I am also satisfied that the time that they spend with him would not negatively impact the relationship that they have with the mother and her partner.

7. The pettiness of the squabble about the father’s occasional unpunctuality is not indicative of him failing to take time to spend with the children.

8. The mother has borne the brunt of the financial obligations to maintain the children.

9. The changes sought in the children’s regime of time with the father as sought by him are minimal, but are important as they would enable him to spend time on a school day each fortnight.

10. A collection from their school on a Friday afternoon will enable him to be involved with the children’s school and demonstrate to them an interest in their education. A collection from school will also overcome any requirement for the mother to deliver the children.

11. Neither party seriously challenges the capacity of the other parent to provide for the needs of the children.

12. Parental stubbornness leading to being unable to resolve parenting issues is the only criticism I make regarding the parents attitude to the responsibilities of parenthood.

13. The final determination of the case by judgment is likely to bring an end to litigation.

14. Given that the mother bears the brunt for the most part in maintaining the children it will be of assistance to her finances if the father undertakes the majority of the travel before and at the end of each period of time during the school term. The mother can be responsible for the delivery and collection of the children at the beginning and at the end of holiday periods.

15. The division of travel will thereby be met to a greater extent by the father than the mother.

16. A conclusion that the father’s weekend periods with the children at 5pm in [G] will maximise the period that they can spend with him on alternate weekends whilst having them home at suitable hour to be ready for the next school day.

17. Consistency of collection and return time are less likely to result in further litigation.

18. It is anticipated that [Y] will commence school at the end of January 2015 thereby enabling collection of her at school as well as [X]. Prior to that the mother is to deliver her into the father’s care at the school gate at the end of the school day on alternate Friday’s during term time.

19. By alternating the father’s periods with the children during school holidays between the first half and the second half each parent will every second year be able to have time with the children at Christmas and time on their birthdays.

20. The children will know from their attendance at school of the importance that society places on Father’s Day and Mother’s Day. Given that importance it will add meaning to their relationship with their respective parents if they spend time with their mother on Mother’s Day and time with their father on Father’s Day. A full weekend period with respect to each period will add more meaning to that celebration.

21. On most occasions by alternating between the first half and the second half of the school holidays Easter will be spent alternatively with each parent as in most years Easter falls within a school holiday period.

22. I am satisfied that the above arrangements will add meaning to the relationship that the children have with each of their parents to the maximum extent possible given the distance between the parties’ homes.

23. The father conceded a desire to collect the children from school each alternate weekend.

24. His application for two other periods on giving notice and on the weekend after her birthday are likely to lead to further litigation by insufficient notice and will not be ordered. 

25. The distance between the parties’ homes and the driving time necessary to cover that distance are not so great as to make the parenting orders impracticable. The ability of the father to tailor his work hours also assists in ensuring the practicability of the orders.

26. For the above reasons I am satisfied that the orders are both in the children’s best interest and reasonably practicable.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date: 23 April 2014