Timmons and Egan

[2017] FamCA 1060

FAMILY COURT OF AUSTRALIA

TIMMONS & EGAN [2017] FamCA 1060

FAMILY LAW – CHILDREN – where the children did not spend time with the father during holidays pursuant to orders – where the mother acknowledges the children were not provided to the father during the school holidays – where the mother misunderstood the orders – orders for make-up time.

Family Law Act 1975 (Cth)

APPLICANT: Mr Timmons

RESPONDENT: Ms Egan

FILE NUMBER: MLC 10105 of 2008

DATE DELIVERED: 8 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 November 2017

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That the father’s time with the children during the 2017 long summer holiday period pursuant to Order 2(d)(ii) of the Orders dated 14 October 2016 be varied such that the father spend time with the children Z born … 2006 and Y born … 2008 as follows:-

   (a)In the first week commencing 22 December 2017 for three consecutive days from 10.00 am to 5.00 pm each day on days to be agreed and failing agreement, commencing 27 December 2017;

   (b)In the second week commencing 1 January 2018 for five consecutive days from 10.00 am to 5.00 pm each day;

   (c)In the third week commencing 8 January 2018 for three consecutive days from 10.00 am to 5.00 pm each day; and

   (d)       From 10.00 am to 5.00 pm on 13 January 2018.

2. That the husband’s Application – Contravention filed 28 September 2017 be otherwise dismissed.

3. That 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 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.

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 Timmons & Egan 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 10105 of 2008

Mr Timmons

Applicant

And

Ms Egan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Timmons & Egan comes before the Court today in a Judicial Duty List upon the filing by the father of an Application Contravention on 28 September 2017.  The father’s application is supported by his affidavit filed the same date.

2. The background to the proceedings is as follows. 

3. The parties are the father, Mr Timmons who is aged 52 years and is employed as a consultant. 

4. The mother is Ms Egan, who is aged 45 years and is engaged in casual employment in retail. 

5. The parties commenced cohabitation in 2005 and separated in 2008. 

6. There are two children of the relationship:  Z, who is aged 11 years, and Y, who is aged nine years. 

7. The question of parenting arrangements for the two children has had a long history in this Court, with proceedings originally having been commenced in 2008.  A trial was conducted before me with respect to parenting matters and I delivered a judgment in 2015.  Further proceedings were instituted which culminated in a judgment of Hannam J, which was delivered on 14 October 2016. 

8. The matter comes before the Court today upon an allegation made by the father in his Application Contravention that the mother has breached paragraph (2)(d)(i) of the orders of 14 October 2016 (“the Orders”), insofar as the children were not made available to him for time on 21 September and 22 September 2017, being days to which he was entitled to spend time during the recent September school holidays.  To her credit, the mother acknowledges that time was not provided to the father on that occasion.  The mother submitted, and I accept, that she misread and misunderstood the terms of the orders as provided by Hannam J.  The Orders, as drafted by her Honour, provided for a staged increase of the father’s time with the children. 

9. Paragraph (2)(a) of the Orders made provision for the father to spend supervised time with the children for a period of six months on each alternate Saturday or Sunday, with supervision to be provided by a contact centre or a professional paid supervisor. 

10. Paragraph (2)(b) of the Orders provided that, upon the completion of the six months supervised time provided in order (2)(a) for a period of three months, the children spend time each alternate Saturday for two hours, with another adult to be substantially present during the father’s time during that three month period.

11. It is common ground between the parties that that three month period had commenced prior to the commencement of the September 2017 school holiday period.  Paragraph (2)(d) of the October 2016 orders provides as follows:

    Upon the father commencing to spend time with the children in accordance with paragraph (2)(b) hereof he spend time with the children on the following occasions:

    i)Commencing Term 3 2017, each school term holiday, for a period of three consecutive days from 10:00 am until 5:00 pm each day on days to be agreed and, failing agreement commencing on the first Saturday after the commencement of the said holiday period.

12. It is that time that the father complains was not provided to him in accordance with the orders.  The mother’s submission was that she believed that that time was not to commence until after the completion of the three month period provided in paragraph (2)(b) of the Orders.

13. It is clear, on a careful reading of the Orders, that, in fact, the time was to commence in the school holiday periods upon the commencement of the time in paragraph (2)(b).  Accordingly, I accept and, as I have noted, it was agreed by the parties during the course of the hearing that the father should have had time during the September 2017 holiday period in accordance with order s(d) of the Orders. 

14. The matter was stood down during the course of the morning to enable the mother to obtain advice once she had come to the realisation that, in fact, she had misinterpreted the meaning of the October 2016 orders.  Sensibly, she conceded that it was appropriate that there be orders for make-up time to compensate the father for the time not spent during the September 2017 holiday period. 

15. Sadly for these parties they have been unable to reach agreement as to when that make-up time should occur.  Whilst it is agreed that the father should spend three additional days with the children there is no agreement as to when that time should occur.  The mother submits that such time should not occur on weekends.  She cites her work commitments as posing an impediment to her being able to facilitate time on Saturdays and Sundays.  She further submits in circumstances where the father has significant arrears of Child Support, to make arrangements that coincide and disrupt her work is to visit further hardship upon herself and, importantly, the children of the relationship. 

16. The father too submits that he works and, as a consequence, from his perspective, it is preferable that his time occur during weekend periods when he is not otherwise occupied by work.  He made no submission in response to the allegation that there are significant arrears of Child Support. 

17. I am not asked to make any determination or deal with those matters, but I can say that it is of concern to the Court if there are such arrears, particularly in circumstances where the submission made by him in support of spending time on weekends is his pressing work commitments during the week.  There seems to be an inconsistency with a submission citing work as a reason not to spend time during midweek periods and a position where, seemingly, there are unpaid Child Support obligations.

18. During the course of the discussion, the father proposed that his time in the second week of the long summer holidays be extended so that he spend time with the children between 1 to 5 January 2018; that is a Monday to Friday period.  The mother ultimately agreed to that timeframe as it did not intervene with her work commitments on weekends.  The real dispute centred around the additional day.  The father proposed two Saturdays:  either 16 December 2017 or 13 January 2018.  I offered the mother the opportunity to have the matter stood down so that she could make inquiries of her employer as to which of those two dates would be more convenient.  Alternatively, it would also have provided her with the opportunity to make inquiries of family or friends to see if she could make appropriate childcare arrangements during those days to ensure that her work is not disrupted by that additional time.  The mother declined that invitation.

19. Doing the best I can, I am satisfied that it is appropriate that the additional time occur on 13 January 2018.  It is after the commencement of the school holiday period and the later date I consider will provide the mother with additional time to make appropriate arrangements to ensure that her work is not disrupted and will enable her to facilitate that time for the father to spend with the children.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 November 2017.

Associate:

Date:  8 November 2017