Pawson & Saetang (No 2)
[2022] FedCFamC1F 979
Federal Circuit and Family Court of Australia
(DIVISION 1)
Pawson & Saetang (No 2) [2022] FedCFamC1F 979
File number(s): SYC 4040 of 2021 Judgment of: CHRISTIE J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – where interim parenting orders were made but did not detail where the children would spend Term 4 Christmas holidays 2022 – where the father places emphasis on religious observance – where the parents agree to equal holiday time but do not agree on when time should occur. Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 8 December 2022 Place: Sydney Solicitor for the Applicant: Ms Daher, Sexton Family Law Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Mr Neville, Atkinson Vinden Lawyers Independent Children’s Lawyer: Mr Bourne, Medcalf Grant Lawyers ORDERS
SYC 4040 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAWSON
Applicant
AND: MS SAETANG
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.The children X born in 2014, Y born in 2014 and Z born in 2016, spend time with the parents during the Term 4 school holiday period in 2022 for approximately half each as follows:
(a)From the commencement of the school holidays on 15 December 2022 until 3.00 pm on 23 December 2022 with the father;
(b)From 3.00 pm on 23 December 2022 until 5.00 pm on 30 December 2022 with the mother;
(c)From 5.00 pm on 30 December 2022 until 9.00 am on 6 January 2023 with the father;
(d)From 9.00 am on 6 January 2023 until 9.00 am on 13 January 2023 with the mother;
(e)From 9.00 am on 13 January 2023 until 9.00 am on 20 January 2023 with the father;
(f)From 9.00 am on 20 January 2023 until 9.00 am on 27 January 2023 with the mother;
(g)From 9.00 am on 27 January 2023 until 9.00 am on 29 January 2023 with the father; and
(h)From 9.00 am on 29 January 2023 until the commencement of school with the mother.
2.The mother’s time with the children is suspended from noon on 24 December 2022 until after Mass on 24 December 2022, with changeover to occur after Mass and for that period the children shall spend time with the father.
3.The parents are restrained from discussing any aspect of this proceeding or their parenting or family property dispute while attending in person, before, during and after Mass on 24 December 2022.
4.The mother shall be free to attend Mass provided the children spend that time with their father.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pawson & Saetang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are interim parenting proceedings. The issue is what time the children, X, Y and Z, should spend with each parent during the Christmas holidays and in particular where they will be on the morning of 25 December this year.
On 10 October 2022 (amended 11 November 2022) the father filed an Application in a Proceeding seeking interim property and parenting orders.
On 24 November 2022 interim property orders were made by consent. The parenting issue remained outstanding. It is of limited compass. The father sought the following orders:
9.That the children spend time with the parents during the Term 4, 2022 Christmas school holiday period on a week about basis as follows:
a. Weeks 1, 3 and 5 of the Christmas school holidays with the father; and
b. Weeks 2, 4 and 6 of the Christmas school holidays with the mother
subject to order 10 below and the orders dated 2 December 2021.
10.That for the purpose of order 9 above, the Term 4 Christmas school holiday period will commence on Monday, 19 December 2022 at 9.30am and conclude at the commencement of school on Tuesday, 31 January 2023.
(As per the original)
On 24 November 2022 orders were made for the mother to file her Response to the father’s Application by 30 November 2022. She did not file by that date.
On 6 December 2022 the mother filed a Response to the Father’s Application in a Proceeding. She sought orders as follows:
That the children spend time with the parents during the Term 4 School Holiday period in 2022 on a week about basis as follows:
(a)From the commencement of the school holidays on 15 December 2022 until 3.00pm 22 December 2022 with the father.
(b)From 3.00pm 24 December 2022 until 9.00am 2 January 2023with the mother.
(c)From 9.00am Monday 2 January 2023 until 9.00am Monday 9 January 2021 with the father.
(d)From 9.00am Monday 9 January 2023 until 9.00am Monday 16 January 2021 with the mother.
(e)From 9.00am Monday 16 January 2023 until 9.00am Monday 23 January 2021 with the father.
(f)From 9.00am Monday 23 January 2023 until the commencement of school with the mother.
(As per the original)
The mother prepared a new Minute of Order which was handed up at the hearing. It provided:
1. That the children spend time with the parents:
a. From 15 December 2022 until 3pm on 23 December with the father.
b.From 3pm 22 December 2023 until 9am 2 January 2023 with the mother.
c.From 9am Monday 2 January 2023 until 9am Monday 9 January 2023 with the father.
d.From 9am Monday 9 January 2023 until 9am Monday 16 January 2023 with the mother.
e.From 9am Monday 16 January 2023 until 9am Monday 23 January 2023 with the father.
f.From 9am Monday 23 January 2023 until the commencement of school with the mother.
2.That the father be at liberty to attend Christmas Eve mass with the mother and children.
(As per the original)
It purported to be a week about arrangement but not all the periods were exactly a week. As I understand the evidence, the periods had been selected to fit the plans the mother had made.
When this matter was before me on 24 November 2022 I indicated to the parties that, given their agreement that it was appropriate to share the school holidays approximately equally, the issue of how that equal arrangement was to be configured was in a category of cases where legal principle may not assist.
The children, the parties and the Court have the benefit of an independent children’s lawyer. He has filed a Proposed Minute of Order. He agreed that the issues were limited and his Minute (exhibit 1) was shared with the parties at my request in an effort to play the “honest broker role”. He has, in the true spirit of that role, discharged that duty. The matter did not however resolve.
The independent children’s lawyer sought orders as follows:
1.In relation to the school holiday period at the end of term 4 2022, the children [X] born [in] 2014, [Y] born [in] 2014, and [Z] born [in] 2016 shall be in the care of the parents as follows:
a. With the father:
(i)From 12.30pm on 19.12.2022 to 12.30pm on 25.12.2022, with the children attending Mass with both parents on Christmas Eve 24 December 2022, but remaining overnight with father, then going to the mother at 12.30pm on Christmas Day.
(ii)From 12.30pm on 2.1.2023 to 12.30pm on 9.1.2023.
(iii) From 12.30pm on 16.1.2023 to 12.30pm on 23.1.2023.
b. With the mother:
(i) From 12.30pm on 25.12.2022 to 12.30pm on 2.1.2023.
(ii) From 12.30pm on 9.1.2023 to 12.30pm on 16.1.2023.
(iii)From 12.30pm on 23.1.2023 until school recommences in 2023.
2.Existing orders in relation to the children’s time with the father are suspended from 12.30pm on 19 December 2022 until school recommences in 2023.
3.Changeovers from 12.30pm on 19 December 2022 until school recommences in 2023 shall occur in the manner prescribed by Order 4 of 2 December 2021.
4.The parents are each restrained by injunction from discussing any aspect of this proceeding or their parenting or family property dispute while attending in person before, during and after Mass on 24.12.2022.
(As per the original)
At the hearing, the father abandoned his original application and instead sought orders in line with the independent children’s lawyer’s Minute.
Consideration
I am obliged to make an order that is in the best interests of the children. I am obliged to take into account any relevant statutory considerations. As this is a limited issue and in the context of a broad agreement that the children spend the school holidays equally with mother and father the matters for consideration are accordingly curtailed.
The mother contends that the children should spend the time equally in the care of each parent but that they should be in her care for Christmas Day. Her argument is that the children spent last Christmas Day with their father. In fact, she says they have spent both Christmas Day 2020 and Christmas Day 2021 with their father.
It is not a matter of fairness as between the parents. I must consider the position of the children.
I take into account the ages of the children. The children X and Y are eight years old and twins. Their sister Z is six. They are young children who it may be assumed would enjoy the opportunity to celebrate the Christmas holiday with each of their parents.
The father’s original orders sought (as is common) defined the school holiday period. But those orders did so without reference to the actual school holiday period of the school which the children attend. The mother’s evidence establishes that the last day of the school term is actually 15 December 2022 (and not 19 December 2022 which was the date the father’s original proposal adopted).
The father contends that as he is Catholic, and Christmas is a celebration of the birth of Christ in the Catholic faith, then the children should be in his care for this holiday. It is important that the children understand the father’s faith and have the opportunity to celebrate this important holiday with him. However, as the independent children’s lawyer submitted, the secular celebration of Christmas is enjoyed by many non-believers and the mother says she is and has been among them, both before the children’s birth and since. Focusing not on the parents’ needs and desires but on the children’s experiences, supports the conclusion that the Christmas morning period should alternate between the parents, to offer these young children the opportunity of memories waking up in the household of each parent on Christmas Day. I am only being asked to determine the situation for this year.
Further, the mother’s evidence suggests she has been involved in the support of the children’s Catholic faith and intends to do so in the future, with the assistance of her partner, who is Catholic. There is some dispute about this. Certainly the mother’s position at the interim hearing is that she intended to take the children to Mass. At the hearing it was apparent that both parties would agree to an order that facilitated the children having both parents present at Mass on Christmas Eve.
In the father’s affidavit material he talks about his desire to take the children to Christmas Eve Mass at QQ School, the local parish attached to the children’s primary school. The mother in her affidavit material disputes that the Christmas Eve Mass will be held at QQ School but, through her counsel, indicated that she had no difficulty with the father attending Mass.
I find that it is in the children’s interest, if both parents are willing, for both parents to attend Mass with the children on 24 December 2022. It seems appropriate that the children attend the Christmas Eve Mass at the church where other members of their school community will be present whether that is QQ School or, as the mother contends, UU Church at Suburb OO. It is not clear to me on the evidence which Mass the children will ultimately attend. The parents will need to agree.
As the Christmas Mass has greater personal significance to the father, it is my view that, during the Mass on 24 December 2022, the children should sit with and celebrate with their father, although the mother should not be prohibited from attending on that occasion, should she choose to do so. The mother’s attendance to facilitate the children’s attendance will, as a consequence of the orders I intend to make, be necessary.
The mother’s affidavit evidence raised an issue about her availability in the first week of the school holidays. Given the father had always been seeking the first week of the school holidays, it is perhaps unsurprising that the mother thought the children would be in his care and may have arranged a holiday. The father’s Application filed 11 November 2022 sought an order that he have week one of the school holiday period. The peculiarity of that was that order 10 sought that, for the purpose of defining the school holidays, such school holidays were to start on 19 December rather than 15 December 2022.
The mother says she has booked a holiday and indicated that documents were attached to her affidavit. When the mother filed her affidavit with the Court, very recently, those documents were not attached to the sealed court copy which was paginated and ended at page eight of eight – the annexure note. When the mother’s affidavit was served on the lawyers for the father and the independent children’s lawyer, documents purporting to be Annexure A were attached. Those documents were handed up to the Court. The documents are not entirely satisfactory as evidence of a booking for the mother during the requisite period but the solicitor who appeared on behalf of the father, appropriately in my view, indicated that her client accepted that the mother may well not be available in the first week of the school holidays and that in those circumstances, he would have the children in his care. It follows that it is appropriate that the first week of the school holidays be the week commencing 15 December 2022, when school concludes, as the mother sought in her application.
That makes the orders the independent children’s lawyer proposed (without knowledge of the mother’s proposed trip) unworkable.
On balance it seems appropriate that the children have the opportunity to wake up in the mother’s household on Christmas morning. I acknowledge that adopting the mother’s pattern may see the children miss the opportunity to wake up on Christmas morning with their father this year.
Where the parties evidence places a matter in issue at an interim hearing I cannot make a finding but I am able to take into account the agreed or uncontested facts:
(a)The children were with their father for Christmas 2021;
(b)The children were with their father for Christmas 2020;
(c)The parties entered into consent orders in December 2021 which provided for the long summer holidays that year to be divided between the parents such that the father had the first, third and fifth weeks’ of the holidays;
(d)Since separation the children have not woken up in their mother’s home on Christmas morning; and
(e)The father’s Catholic faith is important to him and he wishes to share it with his children.
The two factors which suggest that on balance the mother’s orders are in the best interests of the children are:
(a)The opportunity for the children to spend a significant holiday (in particular the morning) with each parent; and
(b)The greater clarity of a week about arrangement which commences with the conclusion of the children’s school term.
That said, the father says there is an event for his family on 24 December. The children will benefit from time spent with extended family. For that reason I will provide that the mother’s time is suspended to allow both the children time with the father, paternal family and to attend Mass.
This schedule also allows for the mother’s proposed trip to Melbourne and gives the children the opportunity to spend time with the extended maternal family.
Accordingly, I find that a modified version of mother’s proposal is in the best interests of the children.
I have taken into account the fact that the school holidays do not neatly fit into six weeks and, to honour the spirit of the parties’ agreement to share equally the remaining days in the school holidays, they have been divided evenly.
I recognise that this process must have been frustrating for the father. The mother, through her material, indicates that she understood the children would be with her on Christmas Day but she never made that understanding explicit to the father, or at least not so far as the evidence suggests. The father appropriately, through his lawyers, raised the issue of what was to happen in the school holidays with the mother and did not receive a response. Again, appropriately, the father brought an Application on the last day an Application could be brought to try and clarify what was happening in the school holidays. The matter came before the Court for mention and directions were made for this matter to be set down. The mother did not comply with those directions. As frustrating as this process is, those frustrations are not relevant to a determination of what time the children should spend with each parent. They do however bear upon the ultimate question of whether the parents can co-operate and communicate effectively. It is unfortunate that, notwithstanding the fact that they each agree that school holidays should be shared equally, the mother has not appropriately engaged in resolving these issues to prevent the matter having to be determined by the Court. Had the mother raised, at the first opportunity, her understanding that she expected to have time with the children as set out now in her application, the issue could have been clarified much earlier.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 9 December 2022
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