PENNINGS & SCHARDIN

[2020] FCCA 3067

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENNINGS & SCHARDIN [2020] FCCA 3067

Catchwords:
FAMILY LAW – Parenting – interim orders – time children to spend with father – best interests of children – practicality of orders.

Legislation:

Family Law Act 1975 (Cth), s.69ZL

Applicant: MR PENNINGS

Respondent: MS SCHARDIN

File Number: NCC 2729 of 2019

Judgment of: Judge Obradovic

Hearing date: 6 November 2020

Date of Last Submission: 6 November 2020

Delivered at: Parramatta

Delivered on: 13 November 2020

REPRESENTATION

Appearing for the Applicant: Mr Mannion

Solicitors for the Applicant: Mannion Lawyers

Counsel for the Respondent: Ms Druitt

Solicitors for the Respondent: Frank Law

PENDING FURTHER ORDER:

1. The Interim Orders made on 28 February 2020 be discharged.

2. The children X born in 2013 and Y born in 2014 (hereinafter referred to as “the children”) shall live with the mother.

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

   (a)During school term:

   (i)In week 1 from after school on Friday to 4pm on Sunday; and

   (ii)In week 2 from after school to 6pm on Tuesday.

   (b)During school holiday periods:

   (i)During the Terms 1, 2 and 3 NSW School Holiday period, from 3pm on the last Friday of school term until 3pm on the following Friday; and

   (ii)During the Term 4 NSW School Holiday period in odd numbered years, from 4pm on 8 January 2020 until 4pm on the last Friday of the school holiday period, and in even numbered years, from 12pm on Christmas Eve until 4pm on 8 January.

   (c)On special occasions:

   (i)For Easter holidays that do not fall during the NSW School holiday period, in the event that the father did not spend time with the children during Easter in the previous year, the father shall spend time with the children from after school on the Thursday immediately prior to Good Friday, until before school on the following Tuesday morning;

   (ii)In the event that the Easter holidays do not fall during the NSW School holiday period and the father had spent time with the children during Easter in the previous year, his time is suspended and the children shall spend time with the mother from after school on the Thursday immediately prior to Good Friday, until before school on the following Tuesday morning; and

   (iii)For the purposes of Father’s Day, the father shall spend time with the children from 2pm on Saturday immediately prior to Father’s Day, until before school on the Monday immediately following Father’s Day.

4. For all changeovers that occur at the start or end of school attendance, the father shall collect the children from school for the commencement of his time and shall return the children to school at the conclusion of his time. For all changeovers that do not occur at the start or end of school attendance, the mother and father shall attend Suburb C McDonald’s located at B Street, Suburb C NSW at the commencement and conclusion of the father’s time, except that:

   (a)The children shall be collected by the mother from Suburb D McDonald’s at the conclusion of the children’s time with the father in accordance with Order (3)(a)(ii).

5. If the father fails to attend changeover in accordance with these orders, (that is, by failing to be at changeover at the designated time on the designated day) on more than 2 occasions in any one month (which do not need to be sequential), then Order (3)(a) shall be immediately suspended pending further order.

6. The father is to notify the mother through ‘Our Family Wizard’ application or if that application is not available via text message if he is to be more than 10 minutes late to changeover on any occasion. Such notification does not deem the father as having arrived at changeover at the designated time.

7. If the father is not able to spend time with the children in accordance with these orders, he is to notify the mother through ‘Our Family Wizard’ application or if that application is not available via text message no less than 48 hours prior to such time, of his inability to spend time with the children, and time shall then not occur and there is to be no make-up time in lieu of the missed time.

8. If the father fails to spend time with the children on more than 2 occasions in a row as provided for in these Orders, then Order (3)(a) is immediately suspended pending further order.

9. Each parent shall have telephone time with the children as follows:

   (a)Every Tuesday, Thursday and Saturday at 6:30pm on the days that the children are not spending time with or residing with the parents in accordance with these Orders;

   (b)At any other reasonable times at the request by the children, with the parent with whom the children are being cared for at the time, to facilitate this request; and

   (c)For this purpose, the parent engaging in the call shall contact the children by telephoning the number nominated by the other parent, and the other parent shall ensure the children are provided with the telephone, and a reasonable private and quiet environment for the purposes of the children engaging in such telephone calls.

10. Except in the event of an emergency involving the children, the parents shall communicate with one another through ‘Our Family Wizard’ application, with each parent to pay equal half of the annual subscription fee for the continued use of the application, with the monies to be paid directly to the service within 7 days of the date of renewal of the subscription.

11. In the event of any emergency involving the children, the parent with care of the children at the time of such emergency, shall, as soon as reasonably practicable, notify the other parent via telephone call of the nature of the emergency or injury befallen to the children or any of them, and such notification is to include details of any hospital or treating medical practitioner that the child is taken to for treatment. The parent with care of the children at the time shall also authorise the hospital or medical practitioner to communicate with the other parent in relation to said emergency or injury.

12. The mother and father shall keep one another informed of their current contact details, including their mobile phone number and residential address. Each parent shall ensure that they provide the other parent with updated information in the event that their contact details change, no more than twenty-four hours after the change in said contact details.

13. The mother is to inform the father no less than seventy-two hours prior to any specialist medical appointment scheduled for the children, details of any such appointment, and the father is at liberty to attend such appointments.

14. Parties shall do all things and sign all documents necessary to enable X to continue to attend upon Dr F for ongoing treatment as recommended by Dr F, or by X’s treating medical practitioner.

15. Parties shall do all things and sign all documents necessary to enable X to attend upon any specialist appointment as recommended by her treating practitioner.

16. The father is restrained from leaving the children unsupervised in the care of any unrelated male who lives with him from time to time, unless the mother provides written consent for the children to be left in the care of such person/s.

17. Each of the parents are restrained by injunction from denigrating, insulting or speaking offensively to the other parent or behaving in a manner which may be distressing to the children, in front of, or in the presence of the children.

18. Each of the parents are restrained by injunction from speaking to the children about these court proceedings, and from discussing these proceedings or any part of them in the presence or hearing of the children, save and expect for as may be necessary to facilitate compliance with these Orders, or for the children’s attendance for any court ordered appointment, or appointment with the Independent Children’s Lawyer.

19. Each of the parents shall ensure that the children are not present in the event that any third person denigrates the other parent and shall take such reasonable steps to ensure that the children are removed from the immediate vicinity.

20. The father shall, within fourteen days of the Orders being made, enrol into a Parenting After Separation course and/ or Keeping Kids in Mind, as run by G Families, or any alternative course recommended by G Families in the event that these courses are unavailable, and shall provide the Independent Children’s Lawyer with confirmation of enrolment within 7 days of receipt of same. The father, upon completion of the courses, shall provide the Independent Children’s Lawyer and solicitor for the mother with a copy of the Certificate of Completion within seven days of being provided with a copy of same.

21. The mother, within seven days of the Orders being made, shall provide a copy of the certificates of completion for her engagement in parenting courses Parenting After Separation and Keeping Kids in Focus to the Independent Children’s Lawyer and to the father’s solicitors via email.

22. The matter is listed for directions at 10am on 22 February 2021.

23. The parties are to file and serve a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter to final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 2729 of 2019

MR PENNINGS

Applicant

And

MS SCHARDIN

Respondent

REASONS FOR JUDGMENT

1. These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth).

2. The proceedings concern the parties’ two children X, born in 2013 and Y, born in 2014.

3. The issues for determination are narrow, and may be summarised as follows:

   a)Whether the children spend time with the father each alternate weekend or each third weekend;

   b)Whether the children spend time with the father each alternate week on a Tuesday afternoon;

   c)Where changeovers are to occur; and

   d)Whether the children speak to the father on the telephone each night they are not spending time with him.

4. There are a few agreed facts:

   a)The parents separated in 2012;

   b)The father moved from Sydney to the Region H post separation;

   c)The father has re-partnered and lives with his new partner and her two children in Suburb J;

   d)The mother lives and works in Sydney, and the children remain living with the mother and attending their local primary school, D School;

   e)The father is in arrears for child support. He does not provide any financial support for the children while they are in the mother’s care; and

   f)The parents have a high conflict relationship.

5. The main difficulty in this matter arises due to the distance between the parents’ residences. In addition, the mother says that the father has been inconsistent with the children’s time in the past, that is prior to orders being in place, and that this has caused the children significant distress. In addition, the mother says that the children are very tired after spending time with the father.

6. The father says that the travel each alternate weekend is not onerous on the children, that they enjoy spending time with him, that more frequent time with the father would allow the mother some respite, that the father wants the opportunity of being involved in the children’s lives to a meaningful extent and that such meaningful involvement is in the children’s best interest.

7. The parents remain at loggerheads about most of the issues surrounding their two children. For example, until recently the father was sceptical about a medical diagnosis which the mother obtained after X was referred for assessment.

8. The father is self-employed and there was no evidence before the Court as to his working hours, however, it appears that they are flexible. The father wants to commence spending time with the children at 4.30pm on a Friday. This essentially means that the mother would need to pick them up from school, ready them for time with the father and then drive them to a half-way point where the father will meet her and take the children for the weekend.

9. The mother says she is not able to drive the children every second weekend due to health and financial reasons, and that due to the high conflict between the parties that face to face changeovers should be kept to a minimum if possible.

10. The father was adamant that it was important for the children for him to be involved in their schooling. Picking the children up from school would enable him to do so to a much greater extent than picking them up from a half-way point between the parents’ residences. There is no evidence to suggest that he is not able to do so, whether every second or every third weekend.

11. The mother’s evidence is that the children are very tired on a Monday morning and for the first half of the week when they return from the father. There is some evidence that X has some difficult behaviours which the mother says are exacerbated by lack of routine.

12. Choosing a changeover location should not necessarily be about convenience to the parents or some fairness argument, namely, that a half-way point is “fair”. This type of argument fails to appreciate that a geographical half-way point might not be convenient or indeed that it takes well over half the travel time for one of the parties to arrive at.

13. The mother proposes for changeover to occur at Suburb C McDonald’s, which is a restaurant located before one enters the motorways and freeways leading from Suburb D to Suburb J. It is a sensible proposal, which would see the mother travelling through Sydney traffic on an afternoon, and the father travelling mostly on the open roads to the changeover location on the weekends.

14. A sensible way forward for the children, which would be both practical for the parents and the children, which would allow the children to spend time with the father more frequently, still maintain a routine and allow the children sufficient time to rest before school on a Monday, is for the father to collect the children from their school on a Friday afternoon and to return them to the changeover location on a Sunday afternoon. It is in the children’s best interest for such time to occur each alternate weekend as this would allow them valuable and meaningful time with the father, while maintaining a routine which might be easier for the children to understand: three weeks between visits is too long for these children.

15. The children are still fairly young and it is better for them to spend more regular time with each of their parents and have both of their parents meaningfully involved in their lives. For this reason as well as reasons similar to why alternate weekends are better for the children than every third weekend, it is in the children’s best interest to spend time with the father each alternate Tuesday after school to early evening. The children are to be collected by the mother at 6pm from Suburb D McDonald’s. This will allow the children time to settle down for the evening and there is no onerous travel on a weeknight for them.

16. The difficulty which the mother says the children faced in the past by the father not attending changeover at agreed times or cancelling or changing times thus causing disappointment of the children, is to be dealt with by a guillotine order, that if the father fails to comply with orders for time (or is late to changeover on more than 2 occasions in a row) it will automatically result in the time between the father and the children stopping.

17. As for telephone communication, it is often onerous on young children to have to speak over the telephone regularly, and it appears that this is so for these children. With the orders for regular time on alternate Tuesdays and alternate weekends, the children will be spending more time with the father in a regular and predictable pattern. It will allow the father to be more involved in their daily lives and therefore the need for daily phone calls (as the father argues exists) is lessened. It is in the children’s best interest that they speak to the parent with whom they are otherwise not spending time with on Tuesdays, Thursdays and Saturdays. A reasonable time for this to occur is 6.30pm as it accords with their usual routine.

18. The school holiday time is largely agreed between the parents and it seems that the only difference in opinion between them is whether time starts straight after school on a Friday or on a Saturday morning. For reasons which have been explained in respect of time during school term, it is appropriate that time during school holidays start on the last day of school.

19. Otherwise orders as sought by the Independent Children’s Lawyer about courses, provision of information, restraints and similar are appropriate and in the children’s best interest.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 13 November 2020