Sherrill and Pinkerton

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERRILL & PINKERTON

[2019] FCCA 3052

Catchwords:
FAMILY LAW – Ex tempore judgment – confined issues – whether children should live with parents 7/7 or 8/6 – whether overseas travel should be permitted – telephone time – orders made as recommended by family report.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MS SHERRILL

Respondent:

MS PINKERTON

File Number:

DGC 485 of 2019

Judgment of:

Judge Burchardt

Hearing date:

11 October 2019

Date of Last Submission:

11 October 2019

Delivered at:

Dandenong

Delivered on:

11 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Johnston

Solicitors for the Applicant:

Guthrie & Associates

Counsel for the Respondent:

Mr Weerappah

Solicitors for the Respondent:

Carroll Goldsmith Lawyers

ORDERS

Parental Responsibility

The Applicant and Respondent have equal shared parental responsibility for the children X born … 2007 (X) and Y born … 2010 (Y) (collectively, the children).

Term time arrangements

The children live with the Applicant and the Respondent on a fortnightly cycle as follows:
(a)in week 1:
(i)with the Respondent, from Wednesday after school (or 9.00am on a non-school day) to the start of school on Monday (or 9.00am on a non-school day); and
(ii)with the Applicant, from the conclusion of school on Monday (or 9.00am on a non-school day) to the start of school on Wednesday (or 9.00am on a non-school day); and
(b)in week 2:
(i)with the Respondent, from after school on Wednesday (or 9.00am on a non-school day) to the start of school on Friday (or 9.00am on a non-school day); and
(ii)with the Applicant, from after school on Friday (or 9.00am on a non-school day) to the start of school on Wednesday (or 9.00am on a non-school day).
In week 3 of the fortnightly arrangement in order 2, the weekend time be interrupted so that:
(a)X spends the weekend with the Respondent (from after school on Friday to the start of school on Monday); and
(b)Y spends the weekend with the Applicant (from after school on Friday to the start of school on Monday).
In week 6 of the fortnightly arrangement in order 2, the weekend time be interrupted so that:
(a)Y spends the weekend with the Respondent (from after school on Friday to the start of school on Monday); and
(b)X spends the weekend with the Applicant (from after school on Friday to the start of school on Monday).
That for the purposes of paragraph 2 to 4, in the event that changeover is to take place on a day:
(a)that the children (or either of them) are sick so as to not attend school; or
(b)that is a non-school day (including a public holiday or curriculum day)
the parent who is responsible for returning the children to school that day will retain the care of the children until 9.00am that day.

School holidays

The fortnightly cycle in order 2-4 hereof be suspended during school term holidays (being defined as the last day of school to the start of the next school term) and during all school term holidays the children live with the parties as follows:
(a)in odd-numbered years:
(i)with the Applicant for the first half, from after school on the last day of the school term to 5.00pm on the middle day of the holidays; and
(ii)with the Respondent for the second half, from 5.00pm on the middle day of the holidays to the start of school on the first day of the new school term; and
(b)in even-numbered years:
(i)with the Respondent for the first half, from after school on the last day of the school term to 5.00pm on the middle day of the holidays; and
(ii)with the Applicant for the second half, from 5.00pm on the middle day of the holidays to the start of school on the first day of the new school term; and
with the fortnightly arrangement in Order 2-4 hereof to resume at the start of the new school term as if it had not been interrupted by the school holidays.
The fortnightly cycle in order 2-4 hereof be suspended for the long summer holidays between 1 January and the start of school, and during that period the children live with the parties as follows:
(a)in even years:
(i)with the Respondent, from 12.00pm noon on 1 January to 5.00pm on 14 January; and
(ii)with the Applicant, from 5.00pm on 14 January to the commencement of school; and
(b)in odd years:
(i)with the Applicant, from 12.00pm noon on 1 January to 5.00pm on 14 January; and
(ii)with the Respondent, from 5.00pm on 14 January to the commencement of school
with the fortnightly arrangement in Order 2-4 hereof to resume at the start of the new school term as if it had not been interrupted by the school holidays.

Special occasions

The time in orders 2-4 and 6-7 be suspended on the following special occasions and the children spend time with the parties on the said special occasions as follows:
(a)for Christmas in odd-numbered years:
(i)with the Applicant from 3.00pm on Christmas Eve to 3.00pm on Christmas Day; and
(ii)with the Respondent from 3.00pm on Christmas Day to 3.00pm on Boxing Day; and
(b)for Christmas in even-numbered years:
(i)with the Respondent from 3.00pm on Christmas Eve to 3.00pm on Christmas Day; and
(ii)with the Applicant from 3.00pm on Christmas Day to 3.00pm on Boxing Day; and
(c)for Mother’s Day, in the event that the children are not already in the care of the Respondent then the children spend time with the Respondent from 5.00pm on the Saturday immediately prior to Mother’s Day to the start of school on the Monday immediately following Mother’s Day;
(d)for Father’s Day, in the event that the children are not already in the care of the Applicant then the children spend time with the Applicant from 5.00pm on the Saturday immediately prior to Father’s Day to the start of school on the Monday immediately following Father’s Day;
(e)on each of the children’s birthdays, the children spend time with the party with whom they are not already living with pursuant to these orders:
(i)on a school day, from after school until 6.00pm; and
(ii)on a non-school day, from 10.00am to 2.00pm; and
(f)on the Applicant’s birthday, in the event that the children are not already in the care of the Applicant then the children spend time with the Applicant:
(i)on a school day, from after school until 7.00pm; and
(ii)on a non-school day, from 12.00pm noon to 4.00pm; and
(g)on the Respondent’s birthday, in the event that the children are not already in the care of the Respondent then the children spend time with the Respondent:
(i)on a school day, from after school until 7.00pm; and
(ii)on a non-school day, from 12.00pm noon to 4.00pm.

Changeover

That all changeovers that are expressed to take place at the conclusion of school or the commencement of school, take place at the children’s school.
Any changeovers that do not take place at school take place at Suburb A McDonalds unless otherwise agreed between the parties in writing.

Education

The children attend Suburb A Primary School for their primary education, save as otherwise agreed in writing between the parties.
The children attend Suburb A Secondary College for their secondary education, save as otherwise agreed in writing between the parties.
Each party ensure that the children attend school on time and shall obtain a medical certificate in the event that either child is unable to attend school due to illness.

Other

That the parties be restrained personally and via their servants and agents from denigrating, criticising, demeaning, abusing, insulting or belittling the other parent or any member of the other parent’s family to the children or in their presence or hearing or posting any such material online or on social media.
In the event of interstate travel, the travelling parent provide the other parent with at least 30 days’ notice in writing of the travel including an itinerary and the address where the children will be staying.
That the parties:
(a)keep the other informed at all times of their respective residential addresses, email addresses, mobile telephone numbers and the name of any third party residing at the parties’ home;
(b)notify the other within 48 hours of any change to their mobile telephone number or email address;
(c)keep the other advised in writing of any proposed/intended change of residential address as soon as practicable and the name of any third party residing in the parties’ home;
(d)advise the other immediately in the event that the children (or either of them) suffer any medical or dental emergency injury or illness including the particulars of any treatments and the name and address of the treating practitioner;
(e)authorise any medical practitioner upon whom the children (or either of them) may attend from time-to-time to communicate with the other parent;
(f)authorise the children’s school/s to:
(i)provide each parent (at their respective cost) with a copy of all school reports, school notices and school photographs in relation to the children; and
(ii)communicate with each parent;
(g)be at liberty to attend any school event (including but not limited to parent teacher interviews) or extra-curricular activity;
(h)keep the other parent informed of any party or activity that either child has been invited to attend and whether the child will or will not be attending same; and
(i)be at liberty to provide a copy of these orders to:
(i)the principal or delegate of the principal of the children’s school/s; and
(ii)any medical practitioner and/or allied health professional upon whom the children (or either of them) attends;
(j)each ensure that the children are able to telephone the other parent at any reasonable time requested by the children.
The parties be permitted to travel overseas with the children on the following times and conditions: -
(a)Any overseas travel for the children only take place during time that the children are with that party pursuant to the terms of these orders;
(b)The travelling parent provide the non-travelling parent with 30 days notice of the intended travel and provide in writing:
(i)an itinerary including accommodation details and a contact number on which the children can be contacted; and
(ii)a copy of return airfares.
Upon the Respondent providing the Applicant with a passport application or passport renewal application, the Applicant shall complete the application and return it to the Respondent within 14 days of her having received it.
Subject to order 20 hereof:
(a)The Applicant retain passion of X’s passport; and
(b)The Respondent retain possession of Y’s passport.
Upon receiving notification of intended travel pursuant to order 17(b) hereof, the non-travelling parent provide the children’s (or either of them) passport to the other parent 14 days prior to the proposed travel and upon return from the ravel the travelling parent return the necessary passport so as to give effect to the order 19 hereof within 7 days of returning.
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 the 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 Sherrill & Pinkerton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 485 of 2019

MS SHERRILL

Applicant

And

MS PINKERTON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter, we are concerned with the best interests of two young boys, X who is aged 12 and Y who is nine. It is, in a sense, a pity that a judgment is necessary. The matters in dispute are in very small compass. The fact that they have gone to final judgment reflects the determination of two very determined litigants, both of whom, as I would find, have a tendency to controlling behaviour, particularly perhaps on the part of the applicant.
The first issue is a dispute as to spend time. The competing positions can be described as eight/six and seven/seven. The issue, as a matter of practical politics, is whether the changeover in one week should be on a Friday after school or on a Saturday morning. I would observe, if I may, that there will be no likelihood of any observable difference in these children when they are adult, whichever of these two orders I make.
The applicant says that she finds Saturday’s changeovers stressful, and this is essentially because the two parents do not like each other. She complains that the respondent is often 10 and up to 30 minutes late. I would point out that is not that much in the scheme of things, even if it is true. She complains that the boys are in uniforms and unfed. While I found the respondent’s explanation slightly unconvincing, the fact is that since the applicant is proposing a seven/seven arrangement, any potential criticisms of the respondent’s care of the children has to be seen in that context.
The respondent, by way of contrast, says that the parents do not get out of their cars at changeover at Saturdays. She, likewise, does not want to interact directly with the applicant. She says the boys do not like after-school care. She says that everyone is stressed at the end of the week, and it would be preferable, in effect, for the children to relax with her first and to avoid after-school care, before going in a happier frame of mind to the applicant on the Saturday.
The first point I would make is, of course, that this is not really about the best interests of the children. It is a struggle between the adults. Ms B, the family consultant, favours an equal time regime. I accept the submission of Mr Weerappah that that view is not in any sense binding upon the Court.
But what X had to say about this is recorded at paragraph 49 of Ms B’s report, and there was no challenge to its accuracy. In relation to the current living arrangements, X stated that he was happy to continue to spend equal time with both parents. He advised that the added time with Ms Sherrill since May 2018 had not affected him, and he had not noticed much of a change. X stated that Ms Pinkerton would be unhappy if this occurred, as during the last time at Court, she did not like it. He stated that she was angry and sad, particularly at Ms Sherrill and had advised this to him.
What Y had to say is at paragraph 55 as follows:
In regards to the parenting arrangements, Y made clear at the beginning of the interview that he wanted to spend equal time with both parents. He said that they ‘deserve to have us’, and he knew that they both loved him and his brother. Y stated that if he had less time with Ms Sherrill, he would be ‘sad’ and ‘down’ in the dumps as he wanted to spend time with both parents equally.
So far as the question of time in after-school care is concerned, the children did not raise these matters with Ms B and, indeed, what they said is what I have just read out. Ms B is right that in many senses, after-school care is a fact of life for many children. True it is, of course that by Friday, everyone does tend to get somewhat tired, but if I may say as a matter of ordinary observation, so, too, people tend to get a bit of a lift at the end of the week when work finally does cease and we can get into the weekend. Friday evening is often thought of as a rather pleasant time.
There are no real concerns for the care of the children with either parent, as the two proposals plainly make clear. In my view, the critical factor is not perhaps so much that identified by Ms B, although I do note the views of the children and they do require to be given weight. But the main problem is that the parents really must not meet. Even if they remain in their cars and, I would infer, glaring somewhat at one another, there must be tension at changeover where they are in reasonably close proximity, even if they remain in their cars. In my view, while both proposals have merit, the preferable one is for a seven/seven arrangement.
The next matter I will deal with is the question of overseas travel. The applicant’s opposition to the respondent’s overseas travel, ultimately abandoned, was always totally misconceived. True it is that the respondent had an episode of ill health in 2017, but it is the applicant’s case that the children spend half their time with this person. There is absolutely no likelihood whatever that the respondent would improperly abscond or seek to spend excessive time with the children overseas. The respondent loves the children and would not damage their interests by taking them overseas in that way.
True it is that you can get visas for relatively extensive periods of time in some countries. I am aware through my direct recent experience that an Indian visa issues for six months from the date it is issued. Nonetheless, the chances of the respondent seeking to impose some dreadful outcome like that on children while they are in their school years is, in my view, nil. And likewise, the idea that she would deliberately take the children overseas when her own health was uncertain, given that she loves the children and that this would not be in their best interests, really only has to be articulated to be rejected.
So far as the passports are concerned, I think they should have one each. The applicant can have that of X, and the respondent can have that of Y. This has the advantage that they each have some measure of comfort in the notion that they keep an eye upon the other’s travel plans. These passports should be released forthwith upon request. The parties should give 30 days notice of any travel which gives time for any dispute to come back to Court, which, heaven forfend, should not be necessary.
So far as the long school holidays are concerned, I think that the applicant’s idea, leaving aside the necessity as there should be, for special time on Christmas Day and Christmas Eve and Boxing Day, is inherently sensible. It is the regime these children are, after all, familiar with. After 1 January, I think a span of two weeks each is a good idea, and the two weeks should alternate from year to year.

RECORDED: NOT TRANSCRIBED

There is a dispute over the length of overseas travel. In my view, as a matter of ordinary principles, overseas travel should not be limited to one or two weeks, as the case might be. But given the measure of disputation with the parties, as it is exemplified by the necessity for this judgment, and given their rigid and entrenched view of one another and the desirability, pursuant to section 60CC(3)(l) to try and avoid further proceedings, I am going to order that overseas travel be limited to one week in the term holidays or two weeks in the long-term holidays. Make-up time and the like would just be a fertile ground for further disagreement.
That brings me finally to the question of telephone time. I have to confess I found the applicant’s evidence about her endeavours to control the children’s calls to the respondent when they were upset somewhat concerning. And indeed, it bothered me that she spoke quite readily about yelling at the children so much that they were reduced to tears, but I note that she has taken steps to address this. In my view, however, once again, in an endeavour to avoid further litigation, the order proposed by the applicant is appropriate, namely that the children should be enabled to speak with the other parents whenever they ask, provided it is reasonable.

The next issue which, in my view, is hardly likely to have any work whatever, if any, to do is the question of changeover on Wednesdays, if it is not a school day. As I say, I think it is highly unlikely this will ever actually come into operation. There is simply nothing in it, either way. In the end, I think 9 am changeover is best, simply because the applicant works.
I will require the parties to draw minutes to reflect these conclusions and then mention the matter.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 7 November 2019

[2019] FCCA 3052

11 October 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies