TOPEL & TOPEL

[2018] FCCA 1621

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOPEL & TOPEL [2018] FCCA 1621

Catchwords:
FAMILY LAW – Parenting – discrete issues – time with father during school term and over Christmas – extracurricular activities.

Legislation:

Family Law Act 1975, s.65DAC

Applicant: MS TOPEL

Respondent: MR TOPEL

File Number: PAC 5737 of 2016

Judgment of: Judge Obradovic

Hearing date: 28 May 2018

Date of Last Submission: 28 May 2018

Delivered at: Parramatta

Delivered on: 25 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Dura

Solicitors for the Applicant: Sharon Payne Family Lawyers

Counsel for the Respondent: Mr Livingston

Solicitors for the Respondent: L P Alidenes & Co

ORDERS BY CONSENT

1. The parties shall have equal shared parental responsibility for the children [X] born 2009 and [Y] born 2011.

2. The children shall live with the mother.

3. The father shall spend time with the children as follows:

   (a)For one half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter;

   (b)From 1pm on Good Friday until 7pm on Easter Monday in each year ending in an odd number;

   (c)On Father’s Day from 9am until 6pm;

   (d)If the children are not already spending time with the father on the father’s birthday, the children shall spend time with the father for a period of three hours, such time to be agreed upon by the parties; and

   (e)If the children are not already spending time with the father on the children’s respective birthdays, the children shall spend time with the father for a period of three hours, such time to be agreed upon by the parties.

4. The Respondent father’s time pursuant to Order 3 above is suspended as agreed between the parties, but failing agreement as follows:

   (a)For one half of all gazetted school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter;

   (b)From 1pm Good Friday until 7pm Easter Monday in each year ending with an even number;

   (c)On Mother’s Day from 9am until 6pm;

   (d)If the children are not already spending time with the mother on the mother’s birthday, the children shall spend time with the mother for a period of three hours, such time to be agreed to between the parents; and

   (e)If the children are not already spending time with the mother on the children’s respective birthdays, the children shall spend time with the mother for a period of three hours, such time to be agreed to between the parents.

5. Changeover shall occur at the children’s schools on school days.

6. When changeover does not occur on a school day the father is to collect the children from the mother’s residence at the commencement of his time and the mother is to collect the children from the father’s residence at the conclusion of his time.

7. The parents shall inform the other, as soon as practicable, upon the happening of any of the following:

   (a)If any of the children are hospitalised;

   (b)If any of the children are seriously injured; and

   (c)If any of the children are placed on any ongoing medication.

8. The parents shall advise the other as soon as reasonably practicable of any major medical issues involving the children and each parent shall keep the other properly informed of any required treatment or medication required in relation to the children and the parents shall ensure the proper administration of such medications and treatment is performed by them.

9. The parents shall advise each other of medical treatment obtained for the children other than medical emergencies by text message on the day that the treatment is obtained.

10. The parties shall notify each other of any medical practitioner that the children attend with from time to time, including but not limited to General Practitioners, specialists, mental health practitioners, allied health professionals, including physiotherapists, speech therapists, occupational therapists and any other medical professionals.

11. Whilst the children are in their respective care, the parents shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each parent shall keep the other properly informed of any required treatment or medication required in relation to the children and the parents shall ensure the proper administration of such medications and treatments is performed by them.

12. Each party shall be at liberty to attend the children’s respective sporting and extra-curricular activities as a parent spectator whether the children are in that parties’ care or not at the time of the activity.

13. The parties shall each do all acts and things, sign all such documents as may be necessary, attend all Government offices, provide all such necessary documents and pay, equally all such necessary fees as may be required by the Australian Passport Office within 14 days of being requested to do so either by the father, the mother or an authorised government officer for the purpose of renewing and/or applying for passports for the children.

14. Either party is hereby permitted to take the children interstate or out of Australia for holidays and in relation to such travel:

    (a)So far as practical, the travel is to coincide with school holidays;

    (b)The party intending to travel with the children (“the travelling party”) shall give the other party (“non-travelling party) as much notification as possible of his or her intention, and in any event will give not less than 45 days’ written notice of such intention;

    (c)The travelling party shall furnish to the non-travelling party not less than 30 days prior to the proposed departure an accurate itinerary to include the following:

    (i)A copy of the travelling party’s and the children’s airline tickets (if available);

    (ii)The departure date and return date;

    (iii)The Australian State or Territory, or the country or countries the travelling party and the children will be travelling to;

    (iv)The approximate dates on which the travelling party and the children will arrive and depart each Australian state or territory, or country ; and

    (v)A telephone number and address at which the travelling party and the children can be contacted in each Australian State or Territory, or country.

    (d)On the occasions that either of the parties proposes to travel with the children in accordance with these orders, and it is necessary for the purpose of this travel that the children be in possession of their passports, the party who is in possession of the passport shall release the children’s passport to the travelling party for the purpose of such travel not less than 21 days prior to the proposed departure date and the father shall return the children’s passport to the mother within 7 days from his travel.

    (e)In the event that either party wishes to take the children away on holidays during time which would usually be spent with the non-travelling party, the travelling party may suspend the non-travelling party entitlement to spend time with the children during that time, but may do so on no more than one occasion per year, and shall suspend no more than eight days of the other party’s specified time with the children and in relation to the parties’ suspension entitlement pursuant to this Order, the following shall apply:

    (i)The travelling party may not, by this order, suspend the other party’s time with the children for Fathers’ Day or Mother’s Day (context permitting), Christmas Day, Boxing Day, Easter or Good Friday;

    (ii)It is a condition precedent that the travelling party shall give the other party no less than six weeks written notice that he/she is activating suspension entitlement pursuant to this order; and

    (iii)If by this order the non-travelling party is deprived of time with the children, the time forgone shall be made up at times nominated by that party. It is a condition precedent that the non-travelling party gives the travelling party six weeks written notice of his/her nominated make up times and that the times nominated do not deprive the children spending time with the travelling party on Mother’s Day, Father’s Day (context permitting), Christmas Day, Boxing Day, Easter or Good Friday.

15. In the event that the children’s passports or either of them are lost, damaged or stolen, the party who was in possession of the passport/s at the time that it was/they were lost, damaged or stolen shall be solely responsible for the cost of replacing the passport/s, and he/she shall do all acts and things and sign all documents necessary to replace the said passport/s within 14 days of discovering that they were lost, damaged or stolen.

16. The mother shall retain in her possession for safekeeping all and any of the children’s passports other than for the purpose of the children’s travel pursuant to these orders.

17. Each party is hereby authorised to obtain from the children’s schools all notices, letters, school reports and invitations and such other documents to which parents are ordinarily invited.

18. Each party is permitted to attend all school activities to which parents are ordinarily invited regardless of who the children are spending time with when those events occur.

19. Each party is restrained from denigrating the other in the presence or hearing of the children, and each party shall use all reasonable efforts to ensure that anyone they have influence or control over does not denigrate the other party in the presence or hearing of the children.

20. Each party shall inform the other of any change in their residential address, landline telephone or mobile telephone number within 48 hours of such notice occurring.

THE COURT FURTHER ORDERS

1. The children shall spend time with the father each alternate week from after school on Friday to before school on Tuesday commencing on 27 July 2018.

2. The children shall spend time with the father from 10pm on Christmas Eve until 11am on Christmas Day in even numbered years. 

3. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Topel & Topel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5737 of 2016

MS TOPEL

Applicant

And

MR TOPEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings relating to two children of the parties.  Prior to the hearing commencing the parties were able to reach agreement in relation to much of the dispute between them. Three issues required determination by the Court.

2. The first and major issue the parents could not reach agreement on was the time that the children should spend with the father. The parties agreed that the children should live with the mother and that they should spend significant and substantial time with the father. What they could not agree on was what that substantial and significant time looked like.

3. Two other peripheral issues which remained for determination, were what time the children would spend with the father on Christmas each year and lastly, how enrolment of the children into extra-curricular activities should be managed.

Relevant Findings

1. The parties were married on 2008. They have two children together, [X] born on 2009, currently aged 9, and [Y] born on 2011, who is about to turn 7 years old.

2. The mother has a child from a previous relationship, [A], who was born on 2006. The children have lived with [A] their whole lives.

3. The parties separated on 29 June 2014.

4. Upon separation, the father left the former matrimonial home located in Suburb A and moved in with his parents at Suburb B.

5. Between June 2014 and December 2017 the children were spending every weekend with the father. This started with Friday to Saturday, then Friday to Sunday and after no more than 12 months, Friday to Monday. Indeed the parenting arrangements for the children were akin to an equal time arrangement and were for six nights each fortnight for at least two years. The children lived with the mother from Monday after school to Friday before school. After finishing school on a Friday afternoon, the children would live with the father for the weekend and he would return them to school on Monday morning.

6. Towards the end of 2017, those long standing arrangements were changed, and since then the children have only been spending alternate weekends with the father and living for the rest of the time with the mother. The parties had agreed to share the school holidays, and have on a final basis agreed about that issue as well.

7. The father seeks an order for the children to spend seven nights per fortnight with him. The mother seeks an order that the children spend five nights per fortnight with the father, but broken up over a two week period, such that they are not away from their mother or their father for too long.

8. In all of the circumstances, the Court finds that it is in the children’s best interest to spend time with the father from after school each alternate Friday to before school on Tuesday. The Court finds that this is so for the following reasons:

   a)The children have strong relationships with both of their parents. There is no evidence to suggest that they do not enjoy the time they spend with each of their parents, or that their care has been compromised by a lack of capacity by either of the parents.

   b)The children have a half-sibling in the mother’s household with whom they have always lived. While there is no direct evidence, the Court infers that the children’s relationship with their half-sister is strong and loving and that they benefit from such a relationship.

   c)While the father has not had the opportunity of spending much time with them during the school week due to the arrangements which had been in place until November 2017, this does not mean that he is in any way incapable of doing so. Indeed, the father’s evidence is that he will look after them the same way during the week as he does on weekends, except that the things he will have to do may change but not the way that he deals with the children, speaks of his capacity and insight.

   d)The parties submit to the Court that it should make an order for equal shared parental responsibility, an order the Court will make. The evidence supports such an order. However, the parties’ relationship is not one of close co-operation, or rather not to the extent where the children would benefit from transitioning between houses mid-week. In the Court’s view such an arrangement would be too disruptive for the children, and while on the one hand it would provide for them to see both parents during every week, on balance it is in their best interest if there is a longer block period in one week with the parent with whom they do not live on a full-time basis, rather than splitting the weeks.

   e)Likewise, a period longer than five days per fortnight is almost a shared care arrangement, and the evidence does not support a finding of a relationship of close co-operation between parents such that equal time would be in the children’s best interest.

   f)The children will get the benefit of spending significant and substantial time with the father while primarily living with the mother and having a primary residence.  There will be fewer changeovers.

   g)A change in the children’s living and spend time with arrangements to a five-nine fortnight during the school week would see them returning to spending significant time in their fathers household, something that they had the benefit of for approximately three years post separation, except that this way they will get the benefit of spending down time with their mother and the benefit of spending busy time during the school week with their father. Indeed, the father will have to get them to school on a Monday and Tuesday morning every fortnight and he will have to ensure that homework is done on at least one school night per week. As the children grow older, the burden of school work during the time the children spend with the father will no doubt increase. This will be something which the children have not experienced to date.

9. In respect of the time the children spend with the father on Christmas, the evidence is that the mother’s extended family has a function every year on Christmas Eve which the children have attended their whole lives. Such a function finishes in the late evening. The mother’s evidence is that it would be pragmatic for the father to pick the children up at around 10pm every alternate year on Christmas Eve, so that the children then get to spend time with the maternal family each year during the celebrations that family has, and to wake up in the father’s household on Christmas Day each alternate year – something which the children have not had the benefit of since separation.    While the father would prefer to have the children earlier on Christmas Eve, with his evidence that his family makes arrangements around the children, an order which sees the children spending each alternate Christmas Eve with the father from 10pm is workable in the circumstances of these children. Therefore such an order will be made.

10. Lastly, in respect of the children’s extra-curricular activities. The parents each seek an order for equal shared parental responsibility. In making such an order the Court is mindful of the effect of a parenting order that provides for shared parental responsibility as set out in s65DAC. The Court finds that the parents have the capacity to fulfil their obligations to make a genuine effort to come to a joint decision as required by the legislation.

11. In saying this, what extra-curricular activities the children are enrolled in from time to time is not a decision which one would normally classify as a decision relating to major long-term issues, although it might well turn out to be such a decision. The evidence does not lead this Court to a finding that the parties have not been able to co-operatively, to date, manage their children’s extra-curricular activities, nor that there should be a special burden placed on one parent in respect of notification and decision making regarding those extra-curricular activities. This particular issue seems to be a bit of a storm in a teacup.

12. The Court has found that these parents are sensible people, who will act in their children’s best interest going forward. There will be no-order made as sought by the mother in respect of decision making regarding extra-curricular activities. It is up to the parents to make joint decisions regarding their children’s extra-curricular activities if such a need arises, and to work co-operatively while listening to the children’s wishes and also being mindful of the other parent’s time with the children and the other parent’s obligations.

13. For all of those reasons, orders as set out at the forefront of these reasons shall be made.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 25 July 2018