Swift and Swift
[2007] FMCAfam 1181
•10 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SWIFT & SWIFT | [2007] FMCAfam 1181 |
| FAMILY LAW – Parenting orders. |
| Family Law Act1975, ss.60CA, 60CC, 65DAA |
| Applicant: | MR SWIFT |
| Respondent: | MS SWIFT |
| File number: | DGC 4257 of 2007 |
| Judgment of: | Phipps FM |
| Hearing date: | 10 December 2007 |
| Date of last submission: | 10 December 2007 |
| Delivered at: | Dandenong |
| Delivered on: | 10 December 2007 |
REPRESENTATION
| Solicitor for the Applicant: | The Applicant appearing in person |
| Solicitor for the Respondent: | The Respondent appearing in person |
ORDERS
That until further order the orders made in the Magistrates Court Frankston on 4 July 2005 are varied as follows:
(a)paragraphs 4(b) and (c) are suspended and are replaced with:
i)"for the first half of school term holidays with the wife and the second with the husband; for the first half of the summer holidays 2007-2008 with the wife and the second with the husband, and the first half of the summer holidays 2008‑2009 with the husband and the second with the wife, and alternating thereafter,"
ii)"the children spend time with the husband from 3.00pm Christmas Eve, 24 December 2007 until 3.00pm Christmas Day, 25 December 2007".
I make an order for a family report.
Until further order, the children spend time with the husband from after school Wednesday to before school Thursday on alternate weeks, commencing with the second Wednesday of the first term 2008.
This matter is fixed for a one‑day hearing on 16 May 2008.
I order that each party file and serve any further affidavits 14 days before the hearing.
IT IS NOTED that publication of this judgment under the pseudonym Swift & Swift is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 4257 of 2007
| MR SWIFT |
Applicant
And
| MS SWIFT |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This application concerns some aspects of the living arrangements for B born in June 1999 and J born in October 2000.
Current orders were made on 4 July 2005. The two children live with their mother and they provide for the children to spend time with their father on alternate weekends; Friday afternoon to Sunday afternoon, and school holidays, Christmas Day and at Easter.
This application now brought by the children's father is for some variations to that. The parties have attended some family dispute resolutions and have achieved some measure of agreement but not on others. When the children commenced school they agreed to extend the alternate weekend times to Monday morning; Tuesday morning if Monday is a public holiday.
They have agreed that for school holidays their first week should be with their mother and the second week with their father. They have agreed to alternate so the children spend half of each summer holidays with each parent and alternate the first and second weeks. They have agreed that the first half of this year will be with their mother.
An immediate dispute is what happens at Christmas and there is also an issue about Wednesday nights. Mr Swift, in his material, says that by agreement the children have been spending overnight on Wednesday nights with him after school; after school Wednesday and before school Thursday. That has now been Thursdays but to suit his commitments it has changed back to Wednesday. That is not in the current orders and Mr Swift seeks a formalisation of the Wednesday.
Ms Swift is opposed to it on the basis that it has not been consistent and she has, she says, concerns about the children's homework being attended to and otherwise their routine being attended to, all of which is disputed by Mr Swift. Ultimately that can only be resolved by a final hearing but an immediate problem is Christmas.
The parties separated in March 2004. They have been married since February 2001 and had lived together for some time prior to that. They separated in March 2004. Under the current orders Christmas mornings, with an overnight on Christmas, alternate and the parties propose that that should continue in the future.
The way the current orders are set up the children would spend overnight, Christmas Eve to Christmas morning; up until 3 pm on Christmas Day with the parent that they are spending the first half of the holidays with. Now, what has happened is that in 2004 they spent it together. Obviously they had reached an arrangement about that. In 2005 they were with their father and in 2006 they were with their mother.
Under the current agreement for them to spend the first half of the school holidays with their mother they would then spend overnight on Christmas Eve to Christmas morning with their mother, which
Mr Swift is opposed to because of the importance of Christmas morning; waking up with presents, and that ritual celebration that is involved with that occasion.
So in deciding this on an interim basis I am deciding what is in the best interests of the children. The issue is between them having two successive Christmas mornings with their mother, or else, given the agreement about holidays, having the Christmas mornings out of kilter with what has been happening, in the future, and the children, if there is a benefit, having a break in their times being 3.00pm on Christmas afternoon instead of there being a break on the previous evening.
The basis of an interim application has to be decided in accordance with the relevant provisions of the Family Law Act1975 and presumptions about equal parental responsibility and what flows from that are set out here in s.60CA; the best interests of the children, and s.60CC; how the court determines that. It all comes down to, in any event, that the children are in an equal relationship with each parent.
On an interim basis I see that, given that the arrangements with the children going backwards and forwards between their parents are working, the difference to the children going from mother to father at, say, 3.00pm on Christmas Eve and back to their mother at 3.00pm Christmas Day, and then staying there until the middle of the holidays as opposed to going to their father on Christmas Day and coming back to their mother at 5.00pm Boxing Day, balanced against alternating the Christmases - the balance in terms of a meaningful relationship with parents - the balance comes in favour of them alternating the Christmases.
As I said, there is an issue between the parties about the Wednesdays and I have described the issue. I have to decide it again according to the sections of the Family Law Act1975 to which I have already referred. Section 65DAA does have relevance here and that is the question that the child spends substantial and significant time with a parent which is to include weekend time, school time, overnight time, that the parties cannot agree on - there has been, at least on some basis, midweek overnight time, and I have to achieve something in the meantime.
It is really a matter of meeting the need for the children to have a meaningful relationship with their father and spend significant time, but balance that against the concerns their mother has about their best interests, that these times are disruptive.
It could be that ultimately it may be decided that every week is disruptive, but every second week may establish some regularity but meet the need for the substantial and significant time and would give the parties the opportunity to see how well it is working. I think the children's best interests in the interim would be met by there being every second week overnight on Wednesdays.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM.
Associate: Jan Smith
Date: 20 February 2008
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