SPURLING & SPURLING

[2015] FamCAFC 113

FAMILY COURT OF AUSTRALIA

SPURLING & SPURLING [2015] FamCAFC 113

FAMILY LAW – APPEAL – CHILDREN – Transport – Where the parties live about two hours apart and orders were made for the father to spend time with the children on alternate weekends – Where the mother appealed against an order requiring the father to collect the children at the commencement of his time and the mother to undertake the return trip, whereas she proposed that the arrangements be reversed – The Magistrate erred by failing to consider the fact that the children would arrive home quite late on the Sundays – The Magistrate erred by failing to consider the impact of the travel arrangements on the mother’s work – Appeal allowed – Remitted for rehearing.

APPELLANT: Ms Spurling

RESPONDENT: Mr Spurling

FILE NUMBER: PTW 2917 of 2013

APPEAL NUMBER: WA 29 of 2014

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Thackray J

HEARING DATE: 22 May 2015

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 31 October 2014

LOWER COURT MNC: [2014] FCWAM 251

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person

Orders

1. The appeal be allowed.

2. The matter be remitted for rehearing before a magistrate in the Magistrates Court of Western Australia, other than Magistrate Sutherland.

3. Paragraph 2(a) of the orders made on 31 October 2014 is discharged.

4. Pending the rehearing, in order to facilitate the father’s time with the children pursuant to the orders of 8 August 2014:

   (a)the mother shall deliver the children to the father’s residence in Perth at the commencement of the weekend time; and

   (b)the father shall deliver the children to the mother’s residence at the completion of the weekend time.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spurling & Spurling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 29 of 2014
File Number: 2917 of 2013

Ms Spurling

Appellant

And

Mr Spurling

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Court is today dealing with the Notice of Appeal filed by Ms Spurling (“the mother”) on 14 November 2014.  The appeal is opposed by Mr Spurling (“the father”). 

2. The appeal deals with a very narrow issue in relation to the parties’ two young children: J, born in 2007; and A, born in 2010.

3. To their credit, the parties were able to reach agreement about the other issues concerning their children at a conference on 8 August 2014.  Consent orders were made for the children to live with the mother, and spend time with the father during the school term each alternate weekend from the conclusion of school on Friday (or if Friday is not a school day, from the conclusion of school on Thursday) until 5.30 pm on Sunday (or 5.30 pm on Monday, if Monday is not a school day).  The parties also agreed about what is to happen during holidays, but that order is not relevant to this appeal.  The only issue they could not resolve was the transportation arrangement for the weekend visits. 

4. In order to understand the importance of this dispute, it needs to be stated that the mother lives with her family in the South-West; whereas the father lives in the Perth metropolitan area, having moved here following the separation.  It is common ground the father was originally undertaking all of the transport necessary to ensure that the children continued to see him, and that the dispute arose because he proposed that the travel be shared equally.

5. The father’s proposal was set out in paragraph 5 of his minute filed on 18 July 2014.  He proposed to collect the children from the South-West at the commencement of his time, with the mother to collect the children in Perth at the end of the weekend.  The mother’s proposal was set out in paragraph 5 of her minute filed on 21 July 2014.  Although her proposal was a little complicated, she essentially sought that the father undertake all the travelling.

6. The parties were both self-represented in this appeal.  They could have prepared the matter a little better, but they managed to present their arguments in a satisfactory way today.  The mother filed a summary of argument on 16 April 2015, but there was some dispute as to whether the father received a copy of it.  In any event, I have not taken it into account because it contains material that I cannot consider on the hearing of an appeal.  The father did not file a summary of argument, but he made oral submissions today.

7. I have identified what documents I understood to be before the Magistrate at the hearing, and the parties have agreed that those documents were available to her Honour.  The material includes the father’s affidavit filed on 4 August 2014 and the mother’s filed on 5 August 2014.  These affidavits deal with many issues that were then in dispute, but there was not a great deal of evidence in relation to the transportation arrangements.  On 8 August 2014, the parties were given an opportunity to file further affidavits, but they did not.

8. The mother appeared by telephone at the hearing before Magistrate Sutherland on 17 October 2014.  Her Honour expressed some surprise that the matter had been listed that day, noting that she already had many other matters to deal with.  Each party made brief submissions and the Magistrate reserved her decision, which was delivered on 31 October 2014. 

9. Her Honour decided it would be appropriate for the travel to be shared equally, and the mother has not challenged that decision.  Instead, she challenges the decision to accept the father’s proposal that he transport the children to Perth at the commencement of his time, with the mother to undertake the return trip.  The mother’s submits that the arrangement should have been reversed, with her to transport the children to Perth and the father to return them. 

10. The primary issue before the Magistrate was whether the travel should be shared, as opposed to which part of the travel each parent should undertake.  Her Honour’s reasons on the latter topic were therefore very brief:

    22… Both parties agreed that [the father] should travel to the [South-West] region to collect the children at the commencement of his time.  This will have the ongoing benefit of enabling [the father] to have some interaction with the children’s school.  In my view, [the mother] should be responsible for collecting the children from Perth at the conclusion of their time with the father.

11. In considering her Honour’s reasons, it needs to be understood that she was bound by the parties’ earlier agreement about the timing of the handovers. 

Return time

1. The mother submitted today that because she is obliged to collect the children in Perth at 5.30 pm on Sunday, they do not get home until at least 7.30 pm, which she says is too late for them and disruptive to their routine.  When the appeal came before me for directions on 27 February 2015, the father agreed that pending the hearing of the appeal, the handovers could take place at 4.30 pm rather than 5.30 pm, so the children could get home earlier.  However, the order the subject of this appeal was made on the basis that the handover occurs at 5.30 pm, and that is the time that I need to consider, rather than the earlier time agreed by the father at the directions hearing. 

2. To his credit, the father readily accepts that the 5.30 pm handover is too late if the children are to be collected in Perth and that a 4.30 pm pickup would be better.   While the father believes that the mother might soon be moving closer to Perth, his concession that the 5.30 pm collection is too late effectively means the appeal must succeed. 

3. The mother had expressed her concern about the return time in the following paragraph of her affidavit (when she was proposing that the father undertake both legs of the travel):

   13I have proposed a return time of 5pm as the children require some down time and to relax and get ready for their meal time at 6 pm. Walking in the door and having dinner served is often too difficult as the children are far too tired and not eating their dinner as they are exhausted. I shower the children after dinner due to any mess made at meal time.

4. It is obvious from reading this that the mother would have had even greater concerns about the children returning home at 7.30 pm or even later.  It must also be borne in mind that the following day is a school day, and that the children would need to go to bed shortly after arriving home at that hour. 

5. With the greatest of respect, I have concluded that the Magistrate’s apparent failure to consider the time at which the children would return to their home in the South-West constitutes appealable error, and that the appeal must therefore be allowed.  However, it should be stressed that the circumstances in which this matter was heard were less than ideal, and that the return time was not the major subject of contention before her Honour. 

Mother’s work commitments

1. The mother also complains that the Magistrate overlooked her work commitments.  The mother works as an events coordinator and has arranged her hours around the children’s visiting routine.  She says it is important that she be able to work on the weekends, when most of the events take place. 

2. At the hearing before the Magistrate, the father submitted that the mother’s work commitments should not be taken into account because she assumed them while the matter was before the court.  In my view, this argument was not a strong one.  Even if it is accepted that the mother took on the work while the matter was before the court, it must be recognised that she is the primary carer of the children and that her work has to be arranged around their needs.  It is therefore not surprising that she sought work on weekends when the children are with the father. 

3. The appealable error that I see here is that while the issue was the subject of evidence and submissions, her Honour did not refer to it in her reasons.  In my view, the matter was of such importance that it needed to be considered.   

Agreement for father to collect

1. The mother also contends that the Magistrate erred by basing her decision on her finding at [22] that “both parties agreed” that the father would collect the children at the commencement of his time.  The mother only agreed to this in the context of submitting that the father should undertake all of the travel.  I therefore consider that her Honour erred by taking into account an “agreement” that was founded on an entirely different premise. 

Involvement with schooling

1. The father submitted that his collection of the children on Fridays gives him an opportunity to interact with their school, and he says this is beneficial for the children.  The mother disputes this and says that the father has not taken up other opportunities to be involved with the children’s school.  To a large extent, this submission seems to relate to matters that postdate the Magistrate’s orders.

2. I accept that the father’s argument has some merit, since collecting the children from school gives the father an opportunity to meet other parents and the children’s friends.  The father also deposed in his affidavit that the collection coincides with school assemblies.  In allowing this appeal, I do not want to be seen as suggesting that I disagree with the Magistrate’s finding about the “ongoing benefit of enabling [the father] to have some interaction with the children’s school”.  This is a relevant consideration, even if there are other ways such interaction could be achieved, and I therefore accept it should be balanced against the matters on which the mother relies.     

Re-exercise or remit

1. Understandably, neither party wants to have a rehearing.  They both seek that I make a decision today on the basis of the evidence before the Magistrate, even though neither of them has filed any updating evidence. 

2. There are a number of reasons why it would be not be appropriate for me to make the decision today.  First, the father believes that the mother and children might be moving to B Town, which is somewhat closer to Perth.  The mother said she has not made a decision yet, but did not deny the possibility of moving.  This issue could make some difference to the appropriate arrangements.  The house in B Town is nearing completion, so it is a matter that may be resolved in the near future.  There are also other matters that would be relevant to the re-exercise of the discretion, including the extent to which the father is actually interacting with the children’s school when he collects them, and the impact that the travel arrangements have had on the children. 

3. I consider that it would be unsafe for me to jump in and make a decision about this matter without all of those issues being properly explored.  I therefore intend to remit the matter for rehearing before a magistrate. 

4. Whilst I have no doubt that Magistrate Sutherland would consider the matter without any form of prejudgment if it was sent back to her, the normal course is to order a hearing in front of a different magistrate to ensure it has a fresh start.  I also note that her Honour has only heard the matter (very briefly) on one occasion, so there is no great benefit in the matter going back to her. 

5. The difficult question is what order to make pending the rehearing, which may not take place for some months.  The primary order requires the return of the children at 5.30 pm, and I am not inclined to interfere with this order, which was made by consent.  However, given the father’s concession that the 5.30 pm return time is too late if the mother collects the children at the end of the visit, I consider it is appropriate to reverse the current travel arrangements pending the rehearing.  Such an order would also take account of the evidence relating to the mother’s work commitments and the children’s routine. 

6. For those reasons, the orders of the Court are:

   (1)The appeal be allowed.

   (2)The matter be remitted for rehearing before a magistrate in the Magistrates Court of Western Australia, other than Magistrate Sutherland.

   (3)Paragraph 2(a) of the orders made on 31 October 2014 is discharged.

   (4)Pending the rehearing, in order to facilitate the father’s time with the children pursuant to the orders of 8 August 2014:

   a)the mother shall deliver the children to the father’s residence in Perth at the commencement of the weekend time; and

   b)the father shall deliver the children to the mother’s residence at the completion of the weekend time.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 22 May 2015, edited to correct grammatical errors and some infelicity of expression.

Associate:     

Date:              18 June 2015