Redmond & Redmond

[2022] FedCFamC1F 931

Federal Circuit and Family Court of Australia

(DIVISION 1)

Redmond & Redmond [2022] FedCFamC1F 931

File number(s):	SYC 1371 of 2020
Judgment of:	SCHONELL J
Date of judgment:	28 November 2022
Catchwords:	FAMILY LAW – PARENTING – Interim orders – Where the primary issue was which parent should do the travel for changeovers given that the father lives in Sydney and the mother lives in City B – Where the father sought for the parties to share the travel, whilst the mother sought for the father to do all the travelling – Where the mother’s evidence was lacking – Orders made for travel to be shared equally between the parties.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL, 102NA
Cases cited:	Goode & Goode (2006) FLC 93-286
Division:	Division 1 First Instance
Number of paragraphs:	47
Date of hearing:	28 November 2022
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Medcalf Grant Lawyers

ORDERS

SYC 1371 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR REDMOND

Applicant

AND:

MS REDMOND

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	28 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The orders made 9 September 2020 are discharged.

2.The father shall spend time with the children during school terms each alternate weekend, with the father to collect the children from school at 3.00 pm on a Friday and the mother to collect the children from the father’s residence by 5.00 pm on a Sunday.

3.The children shall spend time with the father from 8.00 am Saturday 17 December 2022 until 5.00 pm Sunday 1 January 2023, with the father collecting the children at 8.00 am from the mother’s residence at the commencement of time and the mother shall collect the children from the father’s residence at 5.00 pm at the conclusion of time.   

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 Redmond & Redmond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. These are proceedings in relation to parenting matters that relate to the parties’ two children X born 2013 and Y born 2016. Proceedings in relation to the children have been a live issue for coming up to three years.

2. On 29 June 2022, the Court made directions listing the matter for hearing for one day on 14 September 2022. On that day, the parties (who were unrepresented) and the Independent Children’s Lawyer (“the ICL”) informed the Court that the only issues between the parties was which of the parties should be doing the travelling to change over the children during alternate weekends and school holidays and the quantum of the father’s time with the children in school holidays.

3. The issue of travel arose in circumstances where the mother resides in City B and the father resides in Sydney. The children live in the mother’s primary care and attend school in City B.

4. Each of the parties informed the Court that they did not wish to cross-examine the report writer, and the mother indicated that she had no difficulty cross-examining her former partner. In the view of the ICL, the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) had no application.

5. The hearing date was subsequently changed at the request of the parties to 28 November 2022.

6. The mother subsequently contacted the Court by email on 9 November 2022, indicating that she could not cross-examine the father in light of the allegations of family violence and enquired whether she could obtain representation pursuant to s 102NA.

7. In light of the mother’s request, the matter was re-listed on 11 November 2022. On that date the mother advised the Court that she wanted to cross-examine the father but could not do so personally in light of the allegations of family violence, and that the issues as between the parties had broadened and now included parental responsibility, the father’s time with the children, non-denigration orders, overseas travel, passports and various other orders.

8. The father informed the Court that he was somewhat taken aback by the mother’s position and believed that the parties had resolved all issues at a mediation other than which parent would be doing the travel to changeover the children.

9. In circumstances where it was apparent that the matter would not be able to be resolved in one day on 28 November given the mother’s changed position, I indicated that I would hear and determine on an interim basis only the question of changeover location and travel and, at the conclusion of that hearing, determine when the balance of the matters could be heard by the Court, any necessary directions for trial and the appointment of legal representatives pursuant to s 102NA.

10. At the appearance today, the parties were able to, with the assistance of the ICL, reach agreement about many matters and orders by consent on a final basis were made. There remains outstanding for determination at a final hearing the issue of parental responsibility, which parent undertakes travel, and the father’s time in school holidays. There are also some specific issues about which the mother seeks injunctions. These have been listed in the Rolling List commencing 15 March 2023. There remained for determination today the issue of travel in school terms and in the Christmas school holidays.

11. At the hearing today, the father relied upon an affidavit filed 11 August 2022. The father proposed that the parties share what he described as equitably the travel arrangements such that one parent do the drop-off and the other parent do the collection. 

12. The mother for her part relied upon an affidavit filed 14 November 2022. She proposed that the father collect and return the children from the mother’s home and or their school. 

13. The ICL proposed that the parties share the travel, albeit not equally.

14. A Family Report had been prepared by Mr C, dated 22 July 2020. The contents of that report do not assist in determining this very narrow issue.

    Background

15. The parties were married in 2009.

16. In 2014, they moved to City B from regional NSW.

17. The mother and children have lived in City B since that date.

18. The parties separated in December 2018 when the father moved to Sydney.

19. The father has since separation lived with his partner in various locations around Sydney and the D Region. He currently lives in Suburb E.

20. On 9 September 2020, orders were made that provided for the children to live with the mother and spend increasing periods of time with the father, culminating in alternate weekends from after school Friday to Sunday at 5.00 pm and school holidays. Pursuant to those orders, the father does all of the travel. Those orders were only interlocutory.

21. Subsequent to the making of the orders the father has had two children, one born in 2021 and one born in 2022.

22. The father works full time at F Company as a manager.

23. The mother works for a company that is based in City G. Her work involves an hour’s travel each way. The children are in after school and before school care between 8.00 am and 6.00 pm. She says that she works on the weekends that the father has the children.

24. Each of the father and mother makes submissions and gives evidence that the other has sufficient flexibility in their work arrangements so that they can take part in the travel whilst asserting they do not. I am not in a position to make findings about these matters.

25. The mother submits that she is responsible for taking the children to all of the children’s other activities that fall outside of the father’s time.

    Applicable law

26. This is an interim hearing and there has been no cross-examination. 

27. By virtue of that fact, I am unable to make findings in relation to the disputed facts. Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.

28. Fortunately for these children there are no issues of risk that bear on the determination of this application. Whilst there have been historical allegations of family violence, the mother’s proposal is that the children are collected and/or returned from her home. In those circumstances, it seems to me that no issue of risk could arise in so far as who is to do the travel in circumstances where the father currently attends her home and/or the children’s school to collect and/or return the children.

29. Parenting proceedings are governed by Pt VII of the Act.

30. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII. One of the principles set out in s 60B(2)(c) is that “parents jointly share duties and responsibilities concerning the care, welfare and development of their children”.

31. In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.

32. The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.

    Primary and additional considerations

33. In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection.

34. The issue for consideration does not involve any matter that would otherwise impede the children having a meaningful relationship with either party nor are any questions of risk raised by the narrow issue about which the Court is to make a determination.

35. I know turn to the additional considerations. Not all of the additional considerations under s 60CC are relevant to a determination of this narrow issue. Primarily, the resolution of the dispute involves a consideration of s 60CC(3)(e). The practical difficulty relates to the fact that each of the parties have obligations that they are required to meet in respect of their daily life, which supports or inhibits the making of the order sought or opposed by each of them.

36. In that respect, the father gives evidence that he has, for the currency of the current orders which were made in September 2020, undertaken all of the travel with the children. He contends that there has been a change in circumstances since the making of those orders in that he is now the father of two young children. His evidence suggests that this impacts considerably on his capacity to do all of the travelling.

37. The mother for her part suggests that the father should do all of the travelling. She says she has helped with travel on four occasions. She also says that if she had to do the travel it would impact upon her capacity to earn an income. In that respect, she says in her affidavit:

    98. My circumstances do not make it possible for me to drive to Sydney or meet half way every fortnight to assist in changeover due to the impact this will have on my earning abilities, and associated expenses with the travel. I don’t have the financial capacity to be able to cover the cost of travel associated with the changeover.

38. Beyond this assertion, the mother has not provided any evidence as to her income or expenses other than an assertion that her mortgage payments have increased by a $1,000 per month due to an increase in interest rates as well as her other costs. Her failure to adduce such evidence inhibits the Court in making the findings she urges.

39. The mother says that the father has access to a work vehicle and petrol card and has family to assist with travel where she asserts she has neither. I also accept that the mother has the responsibility for the children’s attendance at other activities when the children are not in the father’s care. In that respect, she says:

    7. The children are enrolled in [several extra-curricular activities]. I take the children to all their [activities and events]. At times I ask for help from friends or other mothers from the same school to assist.

40. The difficulty I have with the mother’s evidence is that she has not provided any detail around this proposition. That is, when these activities take place. Are they after school, and if so, when, given she collects the children from after school care at 6.00 pm.

41. These parties live a considerable distance from each other. Whatever might have been the position as a consequence of the orders in September 2020, I accept that the father’s living arrangements have changed considerably. He is now the parent of four children

42. I am of the view that it is important for children to actively observe both parents taking part in the travel that ensures the children see both of their parents. It also reflects one of the principles that underpins the statutory considerations as set out in s 60B(2)(c).

43. There is no evidence before me for the reasons referred to above that establishes that the mother cannot engage in a sharing of the travel

44. It seems to me that the parents should share in the care of their children, one of which includes undertaking some of the travel to see the other parent.  I am also of the view that it is important that children perceive that their parents are supportive of the time arrangements with the other parent which is actively demonstrated by a sharing of travel.

45. I am only making interim orders in relation to these issues and the question of responsibility for travel can be revisited at a final hearing.

46. I am satisfied that in this case the best interests of the children are served by the parents sharing in the alternate weekend and school term travel. In circumstances where the mother says her work ends on a Friday at 6.00 pm, I will order the father to collect the children from school on a Friday and for the mother to collect the children from the father’s home on a Sunday at a time agreed upon by the parties and failing agreement by 5.00 pm on a Sunday.

47. The parties are in agreement that the children will spend time with their father between Saturday 17 December 2022 and Sunday 1 January 2023. They are not in agreement when it will start or end and who is to do the travel. The father proposes sharing and that it commence at 10.00 am on a Saturday and conclude at 3.00 pm on a Sunday. The mother proposes the father do the travel and that it commence at 8.00 am on the Saturday and conclude at 5.00 pm. For the reasons given above, I propose the parties share the travel. I will order the father to collect the children from the mother’s residence at 8.00 am and the mother to collect the children from the father’s residence by 5.00 pm on Sunday 1 January 2023.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       28 November 2022