SYMON & SYMON

[2016] FamCA 980

FAMILY COURT OF AUSTRALIA

SYMON & SYMON [2016] FamCA 980

FAMILY LAW – CHILDREN – Substantial and Significant time – Where it was agreed the parents have equal shared parental responsibility for the child, the child would live with the father, and the child would spend substantial and significant time with the mother – Where the parties live about 90 minutes apart – Question whether the child’s alternate weekend visits with the mother should end on Sunday afternoon or Monday morning before school – Where the mother agrees to submit to an order requiring her and the child to stay at a home closer to the child’s school – Ordered the mother and child stay in that home on some nights during the child’s visits – Where parties do not agree on time arrangements around Easter – Where there is no evidence adduced on the issue – No order made – Where the mother seeks to take the child on international holidays and extend the child’s time with her for that purpose – Where the extension of time will interfere with the child’s education – Where the evidence does not suggest such an order is in the child’s best interest

Family Law 1975 (Cth) ss, 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA

APPLICANT: Mr Symon

RESPONDENT: Ms Symon

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston

FILE NUMBER: BRC 8374 of 2010

DATE DELIVERED: 14 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Austin J

HEARING DATE: 14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Matthew Love Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sorenson

SOLICITOR FOR THE RESPONDENT: Munro Legal Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston Lawyers

Orders

1. All previous parenting orders relating to the child B, born … 2008 (“the child”) are discharged.

2. The parents have equal shared parental responsibility for the child.

1. Until 9am on 27 December 2016:

1. The child shall live with the Mother;

2. The child shall spend time with the Father at all times as the parents may agree and failing agreement as follows;

i.Until 5 December 2016 each alternate weekend between after school Friday until 4.00pm Sunday with changeovers to occur at the C Town BP Service Centre.

1. From 9am on 27 December 2016 and thereafter the child shall live with the Father and spend time with the Mother during the child’s school term as follows:

   1. In each fortnightly period:

i.In the first week from after school Friday to before school Monday (and in the event that either Friday or Monday are public holidays or pupil free days at the child’s school from after school Thursday to before school Tuesday as the case may be); and

ii.In the second week from after school Wednesday to before school Thursday.

1. The child shall spend special days with the parents as follows:

   1. With the parent with whom the child is not living on the child’s birthday as follows:

   i.From after school until 7.00 pm if the birthday falls on a school day;

   ii.If the birthday falls on a non-school day  then from 4.00 pm on the birthday until 4.00 pm the following day;

   2. On the Mother’s Day weekend with the Mother from after school Friday until before school on Monday;
   3. On the Father’s Day weekend with the Father from after school Friday until before school on Monday;
   4. That the child shall spend time/live with their parents for school holiday periods as follows:

   i.being the first half of the Autumn, Winter, Spring and Summer gazetted school holidays in even numbered years with the Father and in odd numbered years with the Mother; and

   ii.the second half of the Autumn, Winter, Spring and Summer gazetted school holidays in odd numbered years with the Father and in even numbered years with the Mother.

2. Unless otherwise provided in these Orders, for the purposes of these Orders a school holiday period will be calculated as follows:

   1. The holiday period commences at the conclusion of the last school day prior to the holiday period and concludes at 4.00 pm on the day prior to the first school day;
   2. the duration of a school holiday periods is to be calculated by reference to the number of nights in the period;
   3. when there are an uneven number of nights the extra night the child shall spend that night with the mother;
   4. the second half of the holiday period commences at 9.00 am on the first day of the second half; and
   5. alternate weekend time is suspended during a school holiday period and recommences following a holiday period as if it had not been interrupted.

3. In relation to Order 4 (a), the Mother is to spend time with the child and the child and the Mother shall sleep at the property within 40 minutes drive of the child’s school such property to include a place for the child to do his homework and the child to have his own bedroom, on the Sunday night pursuant to Order 4 (a) (i), the Wednesday night pursuant to Order 4 (a) (ii) and on the Friday night pursuant to Order 4 (a) (i) during the child’s football season.

4. Unless otherwise agreed, all changeovers shall occur at the child’s school and when the child is not attending school changeover shall occur at the C Town BP Service Centre.

5. The child shall be allowed to travel internationally with either parent for the purpose of taking a holiday provided that:

   1. Unless otherwise ordered or agreed, such travel occur within the time that the parent would ordinarily spend with the child pursuant to these orders;
   2. The travelling parent gives the non-travelling parent at least three (3) month’s written notice of their intention to travel abroad with the children;
   3. The travelling parent provides the non-travelling parent with clear legible photocopies of their and the child’s itineraries, return airline tickets, telephone and address contact details;
   4. The travelling parent shall ensure that the child communicates with the non-travelling parent by telephone, by telephone or electronic communication via internet, email, Skype or any other form of on-line communication at least once per week whilst overseas;
   5. Both parents shall be equally responsible for organising and doing all such things and signing all such documents as are required to arrange for passports for the child and the fees and costs of same shall be paid for by the parents equally; and
   6. When not required for the purposes of this order the child’s passport shall be held in safe custody at the offices of the Mother’s solicitors, to be released with both parent’s written consent, and the passport will then be returned to safe custody at the conclusion of the travel.

6. Both parents shall be at liberty to communicate with the child by telephone or electronic communication via internet, email, Skype and any other form of on-line communication at all reasonable times and in that regard:

1. Both parents will facilitate any wish of the child wish to communicate with the other parent at all reasonable times; and

2. Neither parent shall monitor, record, or supervise the child’s communications with the other parent and shall afford the child privacy to do so.

1. The parents will communicate with each other only in regard to the operation of these orders or other issues concerning the child, via email or in the case of emergency via text message or telephone, and all communications shall be polite and concise.

2. Each parent shall do all such things and sign all such documents as may be necessary or required to:

   1. Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the child consults, failing which this order shall, of itself, constitute such authority;
   2. To speak to, and receive oral or written communication from, any school or other educational institution attended by the child, failing which this order shall, of itself, constitute such authority;
   3. Keep the other parent informed of their residential address and telephone contact number;
   4. Notify the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care; and
   5. For the purpose of allowing a parent to attend if they wish to do so, each parent will notify the other of any appointments with medical or health practitioners and counsellors that they propose to attend with the child.

3. Unless otherwise agreed between the parents the child shall attend D School at Suburb E commencing in Term 1, 2017.

4. Both parents are at liberty to attend at school events in accordance with the school’s policies. 

5. The parents are at liberty to attend at the child’s extracurricular, religious and sporting activities in accordance with the policies of the entities providing such activities.

6. Neither parent shall denigrate the other in the presence of the child nor allow any other person to do so.

7. Neither parent shall discuss these proceedings or orders or future parenting arrangements for the child either with the child or in his hearing or presence.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

9. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

1. Save as to costs, any and all other outstanding applications are dismissed.

1. No order as to costs. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8374 of 2010

Mr Symon

Applicant

And

Ms Symon

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These reasons mark the culmination of a long and bitter dispute between the parties which has been litigated in episodes since 2010.  Their dispute concerns their only child, who is now eight years of age. 

2. The current proceedings were commenced by the father in November 2014.  After numerous interim hearings and swathes of lay and expert evidence, the parties eventually agreed on some fundamental propositions:  first, they should have equal shared parental responsibility for the child; secondly, the child’s residence should be reversed, with him moving to live with the father from 27 December 2016; and thirdly, the child should spend substantial time with the non-residential parent, both before and after 27 December 2016.

3. There was some residual dispute over the details of the proposed orders that would regulate the child’s expenditure of time with the mother after he moves to live with the father.  Those disputes pertained to: 

   (1)whether the child’s alternate weekend visits with the mother should conclude on Sunday afternoons or Monday mornings before school;

   (2)whether, on alternate weekends during football season, the child’s visits with the mother should start on Friday afternoon or only after his football games end on Saturday;

   (3)whether the child’s visits with the mother on Mother’s Day weekends should conclude on Sunday afternoons or Monday mornings before school;

   (4)whether special provision should be made for Easter holidays; and

   (5)whether special provision should be made for overseas holidays with the child.

Proposals and Evidence

1. At the commencement of the trial, the Independent Children’s Lawyer tended a minute of the orders he proposed, which document became Exhibit ICL1. 

2. The parties’ respective proposals were, effectively, minor variants of the template orders proposed by the Independent Children’s Lawyer. 

3. In support of their positions, the father relied upon his affidavit filed on 4 November 2016 and the mother relied upon both her affidavit and the affidavit of her current partner, Mr G, filed on 4 November 2016. 

4. Both parties and the Independent Children’s Lawyer relied upon the Family Report of Ms F, which was annexed to her affidavit filed on 6 May 2016.

Parenting Law

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

6. Relevantly for present purposes, it is unnecessary to consider those preferred residential alternatives if the child’s residential arrangements are determined by orders which meet with the parties’ consent (s 65DAA(6)). In this instance, both parties and the Independent Children’s Lawyer contended it was in the child’s best interests for him to live with the father, to spend substantial and significant time with the mother, and for both parties to have equal shared parental responsibility for him. 

7. The ambit of their arguments over peripheral details was so narrow as to barely permit their judicial determination by application of the paramountcy principle. In one instance, the argument was not even a justiciable controversy because no evidence was adduced upon which to exercise judicial discretion to determine the dispute.

Alternate Weekends

1. It is uncontroversial that the parties live some considerable distance apart.  The father deposed that he lives at Suburb H and that the mother lives in Town I, the distance between their residences being measured at about 127 kilometres.  The father deposed that, in ordinary traffic, it takes at least one hour and 35 minutes and sometimes as much as one hour and 50 minutes to travel by car between the two homes. 

2. The father deposed to the reason for why he suggested that the child’s alternate weekend visits with the mother should end on Sunday afternoon rather than Monday morning.  He said it was to:

   …enable me to prepare the child for school the following day and ensure that he is fully rested for the start of the school week.  

3. He was concerned that, under the mother’s former proposal, the child would need to rise perhaps as early as 5 am on Monday mornings for him to be driven from the mother’s residence some 127 kilometres distance away to his school. 

4. The father’s concern was undercut by the mother’s willingness to submit to Order 7 proposed by the Independent Children’s Lawyer which, relevantly for present purposes, required the child to spend time with the mother at a residential property:

   …within 40 minutes drive of the child’s school.

5. The home at which the mother intends to spend time with the child for that purpose is the home of her foster parent, which residence is in suburban Brisbane and is familiar to the child. 

6. Accordingly, by reference to the proposed orders, to which the mother has indicated her agreement, the child would spend time with her on Sunday nights on alternate weekends in suburban Brisbane and would, thereby, avoid a long journey to school every alternate Monday morning.  

7. The father sought to manufacture another reason for the child to be returned to his care on Sunday afternoons, notwithstanding the effect of proposed Order 7, but it had no objective basis.  He is apparently concerned the child will not cope adequately with staying away for another night each fortnight with the mother.  His apprehension may be genuine, but that does not mean the basis for it is factually correct or that the Court should react to his subjective fear. No aspect of the evidence reasonably suggested the child would not cope with the extra night.

8. The Family Consultant’s past recommendation for the duration of the child’s alternate weekend visits with the mother was made in January 2016, at which time these proceedings still involved a dispute over the child’s primary residence. The mother has since conceded the child’s residence to the father and agreed to spend several nights each fortnight with the child at the familiar home in suburban Brisbane to which I have referred. Consequently, the evidence has shifted from beneath the Family Consultant’s past recommendation.  On balance, alternate weekend visits with the mother should conclude on Monday mornings by her conveying the child to school.

Saturday Mornings in Football Season

1. The mother deposed that, if she is only able to collect the child after he completes his football games at around lunchtime on Saturdays, his time with her on alternate weekends would be reduced considerably. She envisaged they would spend a considerable amount of their time together travelling the 90 minutes journey to or from her residence. 

2. The tyranny of distance was also the primary concern of the father. He deposed he understood the mother’s proposal would entail her taking the child to football games early on Saturday mornings and returning to her home with him after the conclusion of such games. He considered that would result in:

   …up to four hours of the child’s weekend being spent in travel

   and so he was not in agreement with the mother’s proposal to start the alternate weekend visits on Friday afternoons.

3. The father’s alternate concern was confined to the child being housed appropriately if he remained with the mother in suburban Brisbane on Friday nights so as to avoid the long journey on Saturday mornings before the football games.  In that respect, he asserted his concern was:

   In the past, the mother has not always provided appropriate housing for the child

   which concern he then proceeded to elaborate. 

4. With that concern at the forefront of his mind, the father further deposed that if the Court was inclined to order that the child should begin alternate weekend visits with the mother during football season on Friday afternoons then:

   I seek the inclusion of a proviso such that her housing is suitable with the child to have his own room and a place to do his homework and it being in reasonable proximity, being 30 minutes drive from his school.

1. Those conditions posited by the father found themselves manifest in Order 7 proposed by the Independent Children’s Lawyer, to which the parties have already indicated their unconditional consent. As a consequence, there is no outstanding basis upon which the father can legitimately object to the child passing into the care of the mother on Friday afternoons rather than at Saturday lunchtimes during football seasons.

Mother's Day Weekends

1. For comity within the orders, the child should stay with the mother on Mother's Day weekends until the Monday morning before school, just as will be the case for alternate weekend visits.

Easter

1. Order 5(e) proposed by the Independent Children's Lawyer provides for the child to spend time alternately with the parties for certain periods of the Easter weekend each year. The parties could not agree upon the precise period defined within the proposed order. 

2. In the absence of their agreement, self-evidently, no consent order can be made.  The dispute can only, therefore, be judicially determined by application of the law to the evidence. However, neither party adduced a single word of evidence on the issue. Consequently, the issue is incapable of rational decision and I decline to toss a coin to decide it. I decline to make any order about Easter. 

3. The parties will be free to exercise their equal shared parental responsibility to reach agreement upon the issue in the future if they are so inclined. If they cannot agree, the child's expenditure of time with the parties, at or around Easter, will abide the other agreed orders regulating the child's residence with the father and his expenditure of time with the mother on alternate weekends, for half of school holidays, and on other agreed special occasions. Accordingly, there will be no Order 5(e) and no variant of it.

Overseas Travel

1. Order 9 proposed by the Independent Children's Lawyer purports to make arrangements for either party to take the child on international holidays, but the parties could not agree upon the terms of the order. The father wants any such holidays confined to school holiday periods, whereas the mother countenances international holidays that extend into school terms, perhaps for as much as weeks at a time. 

2. The mother deposed that she wished to take the child to the UK "if possible" once every second year, so that they are able to visit her "partner's family" who live in the United Kingdom. She deposed that travel to the UK takes around 30 hours, inclusive of airline layovers, which travel is often complicated by jetlag.  She said the reason she wanted to travel with the child for three to four weeks to the UK was so the child could overcome jetlag, spend time with her partner's family, experience activities in the UK, and not feel rushed. She further deposed that, since the northern hemisphere seasons are opposite to those in Australia, the optimal time to visit the UK with good weather was in July and August each year but, as would be apparent, the northern hemisphere summer does not readily coincide with the winter school holidays in Australia. She therefore envisaged that the child will "have to miss perhaps a week or two of school". Her plan was to organise with the school to take school work with her so the child may complete it while he was away, so as not to fall behind in his academic progress.

3. The father deposed he had no objection to the mother taking the child on overseas vacations so long as it was confined to the time the child would ordinarily spend with her. He was opposed to the child missing school for overseas trips, as he believed the child was:

   …at an age where his education is important and that he needs to be present and in attendance so as not to fall behind in his school work.

4. The father deposed, without challenge, that the child has no close relative or family in the UK and he understood the mother was simply desirous of the child spending time with her current partner's family. That seems to be entirely uncontroversial because of the way in which the mother phrased her evidence in her affidavit. Her partner, Mr G, confirmed in his affidavit that it was indeed his family in the UK with whom the child currently enjoys internet communication.

5. The mother understandably wants the child to meet and develop relationships with her current partner's family and to preferably do it in northern hemisphere summers but that would necessitate the child missing up to a couple of weeks of school each alternate year for that purpose. I am not satisfied by the paucity of evidence that it is in the child's best interests to do so. The other orders upon which the parties have already agreed would enable the mother to take the child overseas for several weeks every Australian summer school holiday period if she so desires. Accordingly, there will be no proposed Order 9 and no variant of it. 

6. For those reasons, save as to costs, I make the following orders. The orders replicate the template orders tendered by the Independent Children’s Lawyer, save for modifications explained in these orders.

ORDERS DELIVERED

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 14 November 2016.

Associate: 

Date:  18 November 2016