SUTHERLAND & SUTHERLAND

[2017] FamCA 856

FAMILY COURT OF AUSTRALIA

SUTHERLAND & SUTHERLAND [2017] FamCA 856

FAMILY LAW – CHILDREN – Final orders – Where the parties have settled the substantial proceedings by consent – Where the matters outstanding relate to children’s handover and the duration of overseas travel and school holidays – Where orders made that resolve the outstanding matters with the paramount consideration the best interests of the children.

Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC and 65DAA
APPLICANT:	Mr Sutherland

RESPONDENT: Ms Sutherland

FILE NUMBER: MLC 3475 of 2016

DATE DELIVERED: 27 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 23 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Glezer Lanteri & Associates

IN ADDITION TO THE ORDERS MADE 23 OCTOBER 2017 IT IS ORDERED THAT

1. For the purposes of the children spending time with the husband in the school holiday periods:

   1.1.each school term holiday period is deemed to commence at the conclusion of school term and conclude at 6.00 pm on the last day before the school term will recommence in the same cycle as if the holidays had not occurred;

   1.2.the summer holiday period is deemed to:

   1.2.1 commence at the conclusion of the school term on the first day of the Victorian Gazetted school holidays and conclude at 9.00 am on the day before the commencement of the new school year, whereupon the school term time will recommence in the same cycle as if the holidays had not occurred; and the children shall be returned to the wife at 9.00 am before school commences if they are with the husband for the second half of the holidays;

   1.2.2 exclude 24, 25 and 26 December.

2. Each party be at liberty to travel with the children overseas for a period of three weeks each year on the following conditions:

   2.1.the travelling parent obtain the consent of the non-travelling parent not less than 28 days prior to the proposed travel;

   2.2.the children shall miss no more than one week of school term; and

   2.3.the non-travelling parent be at liberty to elect make up time with the children during the next school holiday period and/or period of care that is forgone due to the overseas travel.

3. Subject to any change in the residence of either the husband or the wife the handover of the children as between the parties on a non-school day shall occur at the husband’s residence.

4. In the event that either of the parties change their place of residence then and unless otherwise agreed between the parties in writing the husband shall collect the children form the wife’s residence at the commencement of all periods of time the children spend with him pursuant to the orders made on 23 October 2017 and the wife collect the children at the conclusion of such periods. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3475  of 2016

Mr Sutherland

Applicant

And

Ms Sutherland

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Further Amended Initiating Application filed 21 September 2017 Mr Sutherland (“the husband”) sought orders to determine the ongoing parenting arrangements in respect of B born … 2008 and C born … 2010 (“the children”) together with property settlement and a departure from the Administrative Assessment of Child Support.

2. By Further Amended Response filed 13 October 2017 Ms Sutherland (“the wife”) agreed with the husband that the parties should have equal shared parental responsibility for the children but did not agree as to the time that the children spend with the husband.

3. The matter came on for trial on 23 October 2017.

4. Counsel for the parties sought and were granted time to consider the extent to which the parties might be able to agree and the areas of dispute.  

5. To the significant advantage of the parties, agreement was reached in terms of parental responsibility, the substantive issues in respect of the living arrangements for the children, settlement of property and a notation that the parties intend to enter into a limited Child Support Agreement resolving child support issues for a period of three years.

6. The parties were not able to agree on the following matters:

   (a)when the husband’s time during school holidays would conclude;

   (b)the extent to which each of the parties would be able to travel with the children overseas in each year; and

   (c)the place of handover at the conclusion and commencement of the husband’s time with the children.

Legal Principles

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that the best interests of the children be the paramount consideration. That is met by the application of the objects of s 60B(1) of the Act. I bring to account the primary and additional considerations in respect of these matters as set out in s 60CC(2) and (3) of the Act.

2. The narrow focus of the matters in dispute does not require a consideration of the provisions of s 65DAA where the parties have agreed that the children are to live with the wife and spend time with the husband.

3. In determining the remaining issues in dispute I bring to account the matters raised in the affidavit material prepared in preparation for the trial and the helpful submissions of counsel.

School Holidays

1. The husband proposes that for the purposes of school holiday periods they shall be deemed to commence after school on the last day of the children’s attendance at school and conclude before school on the first day of the children’s attendance at school.

2. The wife seeks that the school holiday period conclude at 6.00 pm on the last day before the school term will commence.

3. In relation to the summer holiday period where the children are spending time with the husband in the second half of the holidays the wife seeks that the children be returned to her at 9.00 am on the day before the commencement of school.

4. The orders provide for the children to spend time with the husband during all school holidays periods as may be agreed between the parties but in the absence of agreement then for the first or second half of the holiday periods depending on the whether they fall in an even numbered or odd numbered year.

5. The argument is straight forward. The husband considered that while the parties agree as to the commencement of each holiday period that he should be able to share in the preparation of the children for the commencement of the new term.

6. For her part, the wife argues that she generally deals with the school uniforms, books and the more mundane aspects of the children’s preparation for school.

7. There is no significant jurisprudence that can be brought to bear in respect of the parties’ inability to agree the conclusion of the children’s time with the husband if they are with him in the second half of any school holiday period.

8. I consider that it is to the children’s advantage that they be relieved of any concern in terms of preparation for school and it seems sensible that they be returned to the wife prior to the commencement of the new term.

Overseas travel

1. The parties agree that they should each be at liberty to travel overseas with the children for an extended period each year. The parties are not agreed as to the duration of overseas travel. The husband seeks four weeks whereas the wife seeks three weeks.

2. The evidence is scant but the wife’s concerns centre upon the likelihood that if overseas travel is to occur it would be scheduled to coincide with the mid-year school holidays. On the husband’s application the children are likely to miss two weeks of school as opposed to one week on the wife’s proposal.

3. The potential for missed schooling is exacerbated if both parties take the children overseas in the same year but not during the Christmas holiday period. The consequence could see the children missing four weeks of school.

4. The husband’s principle focus for overseas travel is to spend time with his family.

5. In the absence of agreement I do not consider that overseas travel should take precedence over the children’s education to the extent that the parties at least agree a minimum of three weeks. The wife’s proposal is to be preferred.

Handover arrangements

1. The current arrangement is that handover occurs at the husband’s home.

2. The husband seeks to maintain the current arrangement whereas the wife seeks what she considers to be a more equitable arrangement namely that the husband collect the children from the wife’s residence at the commencement of the time, with the wife to collect the children from the husband’s residence at the conclusion of time.

3. There is uncertainty as to whether the parties will remain living within close proximity of each other.

4. The final orders provide for the husband to transfer his interest in the Suburb D property to the wife in consideration for the payment of a settlement sum.

5. If the wife fails to make payment in whole or in part within 120 days of the orders then the Suburb D property is to be sold.

6. For his part, the husband resides in rented accommodation.

7. The proximity of the parties is such that at present the difference between the parties is a matter of principle rather than logistics. If however either of the parties move from their current place of residence there exists the potential for prejudice to occur for one or other of them.

8. In order to minimise disruption to the children and to maintain at least some stability it is in the children’s interest that the arrangements remain as presently occurring until such time as either of the parties change their current residence where upon there is clearly merit in the wife’s proposal.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 October 2017.

Legal Associate:

Date:  26 October 2017