PALAMARIS & FALBERG (No.2)

[2020] FCCA 3293

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALAMARIS & FALBERG (No.2) [2020] FCCA 3293

Catchwords:
FAMILY LAW – Parenting – concerning children aged 17, 15 and 12 years old – parties not seeking orders in regard to the oldest child – where the younger children live with different parents in different states – what school holiday time the younger children should spend with each parent.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR PALAMARIS

Respondent: MS FALBERG

File Number: DNC 115 of 2014

Judgment of: Judge Young

Hearing date: 19 November 2020

Date of Last Submission: 19 November 2020

Delivered at: Darwin

Delivered on: 19 November 2020

REPRESENTATION

The Applicant: On his own behalf

The Respondent: On her own behalf

ORDERS

UPON NOTING:

A. That the parties agree that the child Y, born 2003 lives with the parent of her choice according to her wishes and no order about her is sought.

THE COURT ORDERS:

1. That the parents have equal shared parental responsibility for the children, Y, born 2003, X born 2005 and Z born 2008 (“the children”).

2. That the child X born 2005 (“X”) live with the mother.

3. That the child Z born 2008 (“Z”) live with the father.

4. That the child Z spend time during the school holidays with the mother in NSW as follows:

   (a)From 19 December 2020 to the 9 January 2021; and

   (b)In July 2021 for 2 weeks

5. That the child X spend time during the school holidays with the father in the NT as follows:

   (a)From 9 January 2021 to 23 January 2021; and

   (b)From Sunday 4 April 2021 to Sunday 18 April 2021.

6. That following the summer school holiday time orders 4(a) & 5(a) the child who moves first to spend time with the mother or father shall alternate each year, commencing with:

   (a)X is to spend time with the father in the NT from 19 December 2021 to 9 January 2022; and

   (b)Z is to spend time with the mother in NSW from 9 January 2022 to 23 January 2022

7. That for the time orders 4, 5 & 6 above the child’s time with the mother or father respectively is to coincide with school holiday time (NSW and NT school holiday time) and as such, dates in future years may need to be slightly adjusted to enable this, if they do not coincide with school holiday time.

AND IT IS ORDERED BY CONSENT:

1. That, for the purposes of Order 1 herein, the parents shall communicate in writing about matters having to do with the care and welfare of the child/ren, including but not limited to:

   (a)The child/ren’s education and changes to the child/ren’s schooling arrangements;

   (b)The child/ren’s health;

   (c)The child/ren’s religious and cultural upbringing; and

   (d)Changes to the child/ren’s living arrangements.

   And the parents shall make a genuine effort to come to a joint decision in terms to which they both agree.

2. That, in the event that the parents cannot come to a joint decision about a major long term issue, they will first do all things necessary to participate in family dispute resolution with an accredited Family Dispute Resolution Practitioner.

3. That, in case of emergency decisions concerning the child/ren’s health, the parent who has care of the child/ren shall make immediate decisions as required and inform the other parent of that decision immediately.

Parenting arrangements

1. That if either parent travels to the other parents home town at a time other than in accordance with orders 4, 5 & 6 above and they are staying within a 100 kilometres radius of the child/ren’s residence they can spend time with the child/ren for up to seven days at a time on no more than four separate occasions each year. The parents are to give at least seven days written notice to the other parent of his or her intention to spend time with the child/ren pursuant to this order.

2. That if either parent is staying within a 100 kilometre radius of the child/ren’s residence he or she shall see the child/ren as follows:

   (a)On the child’s birthday, the child shall spend equal time with both parents, with such time to be agreed;

   (b)On the mother’s or father’s birthday, whereby if it is a school day the parent will collect the child/ren from school and return the child/ren to school the following day, or if it is a non-school day from 9:00am until 9:00am the following day; and

   (c)On Father’s Day or Mother’s Day, whereby if the child/ren is not already spending time with that parent the child/ren will spend from 6:00pm the Saturday before Father’s Day or Mother’s Day until 6:00pm on Father’s Day or Mother’s Day.

Communication with the children

1. That either parent shall be able to phone the child/ren at least twice a week.

2. That the child/ren be permitted to communicate via phone, Skype or equivalent video communication with either parent on their own initiative at other times with the other parent to facilitate this communication.

3. That the child/ren are to be afforded privacy when they speak to the other parent.

Changeover and Travel arrangements

1. That for the purpose of orders 4, 5 & 6 the father will pay for the child/ren’s flights departing NSW and the mother will pay for the flights departing Darwin.

2. That should either parent cause the child/ren to miss a flight, the parent who is responsible for the missed flight(s) will pay the full costs of the next available flight(s).

3. That for the purpose of orders 4, 5 & 6 either parent is to give the other parent written notice of the travel arrangements that he or she has made to travel to and from the airport nearest their residence not less than 21 days before the date of travel.

4. That the parent who is collecting the child/ren shall telephone the other parent as soon as possible after collecting the child/ren from the airport to confirm their arrival.

5. That for the purpose of orders 11 & 12 the parent will collect the child/ren from school or a pre-arranged public place at the commencement of his time with the child/ren and will return the child/ren to school or to a pre-arranged public place at the conclusion of his or her time with the child/ren.

Travel within Australia and overseas

1. Either parent may travel with the child/ren on holiday (within Australia or overseas) outside of the town/city in which the child/ren ordinarily resides only if:

   (a)The travelling parent notifies the other parent in writing of the travel not less than 14 days before the date of travel; and

   (b)The travelling parent provides the other parent with a travel itinerary and contact details (accommodation name, location and a telephone number) for the child/ren while they are away; and

   (c)The travelling parent takes all reasonable steps to facilitate the child/ren having phone, Skype or equivalent video communication at least twice per week with the other parent during the period/s of travel; and

   (d)The holiday must not interfere with the child/ren spending time or communicating with the other parent, unless agreed to in writing prior by the other parent and the travelling parent is to provide alternative arrangements for make-up time with the other parent.

Children’s Passports

1. That the mother and father will do all things and sign all documents necessary to obtain an Australian passport for each of the children within 30 days of a request by either party and that, if either parent does not sign the passport applications for the children within 30 days, then these orders will provide sufficient authority such that the Registrar of the Federal Circuit Court of Australia is authorised to sign the passport application on either parent’s behalf.

2. That, when the children are not travelling overseas, their passports remain in the possession of the mother.

3. That the children’s passports must be given to the father within 10 days of the father’s written request, provided the mother has agreed to the father’s travel.

Communication

1. That each parent will immediately advise the other parent of any medical or other emergency related to the health and welfare of the child/ren.

2. That each parent will advise the other parent of their respective telephone numbers (including mobile and landline numbers), Skype username and residential addresses and each parent shall, within 48 hours of any change of either their telephone number or residential address, advise the other parent of that change.

Other matters

1. That each parent be entitled to obtain directly from any school attended by the child/ren, copies of any school reports, school photos or any other verbal or written information relevant to the child’s education, and for this purpose, the mother shall immediately notify the father of the names and contact details of any school attended by the child/ren.

2. That each of the parents be entitled to obtain directly from any health or welfare professional or any other professional attended by the child/ren, copies of any reports, notices of other relevant verbal or written advice relating to the health and welfare of the child/ren and for this purpose, each of the parties shall immediately notify the other party of the names and contact details of any relevant health or welfare professional and keep the other so informed within one week of any change.

3. That in the event that a child requires emergency medical treatment, the parent caring for the child is to immediately advise the other parent via phone, or SMS message within 24 hours of the emergency treatment being received.

4. That both parents are entitled to attend school or extracurricular events.

5. That within six months of these orders the mother is to complete a post-separation parenting course such as “parenting program C” within the next 6 months and the mother is to notify the father upon completion of this.

Injunctions

1. That each parent be restrained by injunction and an injunction issue restraining each parent from:

   (a)Denigrating the other parent or members of the other parents’ family to the child/ren or in the child/ren’s hearing or presence, or allowing anybody else to do so.

   (b)Consuming any illicit drugs within 48 hours before seeing the child/ren, or while the child is/ children are in their respective care.

   (c)Allowing the child/ren to be in the presence of any other person who is consuming, or under the influence of, illicit drugs.

   (d)Being under the influence of excessive alcohol while the child is/ children are in their respective care.

   (e)Allowing the child to be in the presence of any other person who is under the influence of excessive alcohol.

   (f)Exposing the child/ren to abuse (including verbal abuse) or family violence, and that each parent will take all measures necessary to remove the child/ren from an incident of family violence should such circumstances arise.

   (g)Physically disciplining the child/ren.

   (h)The parents be restrained and an injunction issue restraining the parents from:-

   (i)questioning the child/ren about the other parent/parent’s household;

   (ii)discussing inappropriate adult issues with the child/ren;

   (iii)discussing or otherwise exposing the child/ren to particulars of the family law proceedings.

2. That all outstanding applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Palamaris & Falberg (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 115 of 2014

MR PALAMARIS

Applicant

And

MS FALBERG

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting dispute between the mother and the father of three children: Y who is 17 and a half and who is apparently living independently in New South Wales some 20 minutes or so away from her mother's home; X who is 15 and a half approximately and who after a stint last year and earlier this year living with her father in Darwin, has returned to live with her mother in New South Wales; and Z who is 12 and a half and who relocated along with X last year to live with his father in Darwin.  Z remains living with this father in Darwin.

3. This matter has been fraught with a great deal of hostility and conflict between the parents.  Some of it, in my view, quite unnecessary, because, when I acted effectively as a mediator between the parents, they are capable of agreement in a reasonably sensible and rational way, but as I say, that is when I act as a mediator.

4. The history of the matter, I think, is largely irrelevant and I do not propose to canvass that apart from saying that I considered some of the issues between the parties in an earlier ex tempore interim judgment given on 13 May 2020 about X returning to live in New South Wales with her mother. 

5. The mother suggests that X really should live where she wishes.  I am not sure that I heard a submission from the father about that particular aspect. While I am somewhat reluctant to make orders about X, given fact that she is 15 and a half and ordinarily you would expect that she could make her own mature decisions, I think given the history of distrust and conflict between the parties I do need to make an order about X.  Further having seen some of what X had written about her family situation and dealt with it on 13 May 2020, I concluded that X was a child of some maturity, intelligence and sensitivity, and that she was quite capable of expressing her own wishes and was not, in my view, showing any signs of being subject to coercion or manipulation.  Nevertheless, I think for the sake of certainty, orders should be made about X.

6. Nobody is seeking an order about Y.  Also I propose to make orders about Z.

7. The central issue today was about holiday time between the parties, and the mother was effectively seeking to maximise the time that the children spent in New South Wales with her.  She pointed out, quite reasonably, that the children have step-siblings as a result of her re-partnering who are aged six and five.  That I concede is a valid consideration.

8. Mr Palamaris not surprisingly wants to maximise the time the children spend with him in Darwin and he suggested something approaching equality would be appropriate.  Doing the best I can, and it is not easy to fit all of those competing demands into time orders, after discussion with the parents today there is in substance agreement about what I propose to do which is make orders that would see Z and X each spending time in the household of the other parent.  That is Z and X spend time with the parent other then one with whom they are living with on two occasions in each year, and also making sure that Z and X are together on those occasions.  The scheme I set out is intended to do that.

9. In relation to parental responsibility, the mother is proposing that there be equal shared parental responsibility for all children.  The father suggests, as I understand it, that certainly in relation to Z who lives with him that he should have sole parental responsibility.  The father's affidavit really does not set out, in my view, any good reason why there should not be shared parental responsibility.

10. I am satisfied that both parents are heavily invested in their children and in their children's welfare.  I have seen nothing to suggest that Ms Falberg does not take her responsibilities as a parent seriously and discharges them responsibly.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 3 December 2020