Tyrrell & Tyrrell
[2023] FedCFamC2F 1604
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tyrrell & Tyrrell [2023] FedCFamC2F 1604
File number(s): MLC 14240 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – final parenting orders – equal shared parental responsibility – dispute over time with father – where both parties seek to relocate – mother seeking week about arrangement – father seeking two out of three weekends – father rely upon family report recommendations – where parties agreed upon children’s education prior hearing – where parties agreed on children’s extracurricular activities prior to hearing Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA Cases cited: MRR v GR 240 CLR 461 Division: Division 2 Family Law Number of paragraphs: 96 Date of hearing: 28-29 November 2023 Place: Bendigo Solicitor for the Applicant: Cathryn Shiels Lawyers Counsel for the Respondent: Mr Gelzakos Solicitor for the Respondent: Cosgriff Lawyers ORDERS
MLC 14240 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TYRRELL
Applicant
AND: MS TYRRELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children of the marriage:
(a)X born in 2012 (“X”); and
(b)Y born in 2014 (“Y”)
(“the children”).
Care Arrangements
2.The children live with the Mother.
AND THE COURT ORDERS THAT:
3.The children spend time with the Father:
(a)During school terms, each alternate week from the conclusion of school (or 3.30pm if not a school day) Thursday until the commencement of school (or 9.00am if not a school day) Monday;
AND THE COURT ORDERS BY CONSENT THAT:
(a)For one half of the school term holidays by agreement, or failing agreement, for the first half;
(b)For one half of the long summer holidays by agreement, or failing agreement on an alternating ‘week-about’ basis, commencing in the first week;
(c)For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(d)During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in even numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
(e)Should Father’s Day fall on a weekend when the children are not in the Father’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Father’s Day weekend; and
(f)At such further and other times as may be agreed between the parties.
4.The children’s time with the Father pursuant to Order 3 hereof be suspended:
(a)For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
(b)During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in odd numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
(c)Should Mother’s Day fall on a weekend when the children are not in the Mother’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Mother’s Day weekend.
5.Despite anything to the contrary herein the children will spend up to two hours with each parent on the children’s respective birthdays by agreement.
6.If NAIDOC week falls during a period the children are with the Father, his time will be suspended for that period and he shall be afforded make-up time by agreement between the parties.
Changeovers
7.Changeovers are to be at the children’s school/s on school days or if it is a non-school day, at B Park in Town C, or otherwise by written agreement between the parties.
Communication
8.The parties each facilitate the children communicating with the other parent by electronic means (including by telephone, videocall, social media or messaging platforms) whilst in their respective care at all reasonable times requested by the children.
9.Each of the parties be permitted to communicate with the children by electronic means (including by telephone or videocall) on Tuesdays and Fridays by placing a call to the other parent’s nominated telephone number by no later than 6.00pm on such days.
10.The parties shall communicate with respect to the children directly by either text message or telephone call with such communication to be via the parents' nominated telephone numbers only.
Travel
11.Each party be permitted to take the children on a holiday for up to 14 days each year and that each party provide to the other party with at least 30 days’ notice in writing:
(a)Of their intention to go on a holiday;
(b)A detailed itinerary including flight details if applicable and accommodations for the duration of travel; and
(c)Contact details for the children for the duration of travel.
12.Upon the written request of either parent the parties will do all things required and sign all documents to cause the children to obtain passports, with the Father to pay for the costs of the passports and any renewal thereof, and once issued the passports will be held by the Father save for the purpose of any travel with the Mother, with the Mother to be provided with a colour copy thereof forthwith upon receipt of passports by the Father.
13.In the event that the Mother intends to travel internationally with the children, the Father shall provide the children’s passports to the Mother not less than 21 days prior to such travel and the Mother shall return them to the Father within 14 days of the children’s return to Australia.
Schooling and Extra Curricular Activities
14.Both parties do all acts and things so as to enrol:
(a)X to commence year 7 at D School, Town C in 2024;
(b)Y to commence grade 4 at E School, Town C in 2024; and
(c)Y to commence year 7 at D School, Town C in 2027, or such other year as she may commence secondary school.
15.Neither party enrol either of the children in any school save as provided for at Order 14 hereof, save and except with the express written consent of the other party.
16.Unless otherwise agreed by the parties in writing, the parties do all such acts and things and sign all documents necessary for the children to participate in one extra-curricular sporting activity in the Town C area, being, unless otherwise agreed by the parties, sports for X and for Y.
17.The parties be, and are hereby, restrained from enrolling the children in any extra-curricular activity which is to occur in the time the children are to spend with the other party without the written consent of the other party.
18.The parties shall each ensure any school the children may attend is authorised to provide school reports, newsletters and applications for school photographs to both parents.
19.Each party is at liberty to attend all school, sporting and extracurricular events it is usual for parents to attend.
Exchange of Information
20.The parties shall keep each other informed at all times of their respective residential addresses and contact telephone numbers.
21.Each parent shall ensure that other, as soon as practicable, is notified of any injury, illness, hospital visits or medication prescribed for the children including in respect of mental health issues.
Restraints
22.Each party be and hereby is restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or their respective partners within the hearing or the presence of the children or any of them.
23.The parties be and are hereby restrained from permitting the children to have any communication or come into contact with Mr F.
24.All extant applications and responses thereto be otherwise dismissed.
AND THE COURT NOTES THAT:
A.It is the intention of the Mother to reside with the children in Town G.
B.It is the intention of the Father to reside in the City H/Town J/Town K area.
C.Pursuant to s62B and s65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore on the November 2023 City H Circuit sitting of the Court. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors and repetition have been corrected, heading, citations and/or passages of authorities and evidence added and an attempt has been made to make the orally delivered reasons easier to read. But the substance is unchanged.
Background
In the matter of Tyrrell, the parents of X born in 2012 and Y born in 2014 and collectively (“the children”) ask the Court to determine their children’s living arrangements on a final basis.
The applicant Father, Mr Tyrrell, is a 33-year-old self‑employed tradesman. Mr Tyrrell has re‑partnered with Ms M, and they have baby N, born in 2023.
The Respondent Mother, Ms Tyrrell, is 34 years old and works as an administration assistant. Ms Tyrrell has re‑partnered with a Mr P, and they have a child, baby Q, born in 2022. Ms Tyrrell also has a child from a prior relationship, R, and R is 14 years old.
The parents commenced cohabitation in about 2009. They married in 2013, after X’s birth and before Y ’s birth. The parties separated in September 2020. The parties agree that their separation was not marked by a “blow up” or controversy but that by a combination of events, including Mr Tyrrell’s necessity to work away from home to support the family and himself, and the existence of COVID, had generally caused the parties to grow apart. Ms Tyrrell re‑partnered with Mr P in about 2021, and it was roughly at that time that she commenced in her current employment.
Mr P works as a manager, and he has been able to obtain a residence close to where he works. That accommodation has been available for himself and Ms Tyrrell and their family since early 2023.
Mr Tyrrell lives between Town C and Town S. Town S is some three hours from Town C. The parties were living at the time of separation in a town nearby to Town C, where Ms Tyrrell’s parents currently live, in the town of Town T. At the time of separation, Mr Tyrrell went to reside with Ms Tyrrell’s parents in Town T for a short period.
Thereafter, the tragedy that befell the family as well as the sadness of the end of the marital relationship was the extraordinary weather event that hit the area where they lived in Town T and the surrounding region. The devastation to the town of Town T was very significant. This family was affected when their home was damaged and their personal belongings were damaged by the storms. The parties still own the property which had been the former matrimonial home in Town T, and, as a result of the storms, made a claim on their household insurance.
As a result of that insurance, accommodation was arranged for Mr Tyrrell in a not that close but not too distant area of Town J. Mr Tyrrell did not get much of a choice in where he lived at that point because this was dictated by the circumstances of the extraordinary scarcity of rental accommodation for the people whose homes had been affected by the storms. Mr Tyrrell then obtained, at the direction of the insurance company, accommodation in Town C after a couple of months. Ms Tyrrell then went to live with her parents in Town T, and she has remained there since.
It is common ground between the parties that, whilst the accommodation with Ms Tyrrell’s parents is suitable on a short‑term or emergency basis, that it is less than ideal in the long term, principally because of the limited accommodation for not only the family of Ms Tyrrell’s parents but herself and the four children that she cares for.
Mr Tyrrell’s partner, Ms M, resides at Town S and has resided at Town S for some time. She has a daughter, U, who is in grade 1 at V School. U is six years of age. U’s Father, Mr W, lives in the Suburb Z area. That is, opposite side of Melbourne to Town S/Town V area and some hours away. Mr W sees U by arrangement and agreement from time to time with Ms M.
Ms M and Mr Tyrrell do not cohabit together on a full‑time basis, though they are in a permanent and committed relationship. Ms M has her current life at Town S/Town V, and Mr Tyrrell has his current life living in Town C. His current Town C accommodation is, again, at the direction of the insurance company. The parties home in Town T is yet to sell, and the expected insurance payment has yet to be received. Sensibly, the parents have resolved how the proceeds of sale and how the insurance payment will be divided between them when that comes to pass.
The distances involved
Ms Tyrrell wants to live with her partner at Town G in the accommodation that he has secured. The distance between all parties via car are;
·Town C to Town G is approximately 50 minutes;
·Town G to Town T is approximately 1 hour;
·Town J to Town T is approximately 40 minutes;
·Town J to E School in Town C is approximately 1 hour; and
·Town J to D School (secondary school) in Town C is approximately 1 hour.
·Town T to Town C is approximately 30 minutes.
The practical reality of Mr Tyrrell’s life is that he has some flexibility as a self‑employed tradesman to work in both the Town C area and the Town S area. His life revolves around spending time with his partner and his child N, either at Town S or on the occasions that Ms M and N, X and Y are able to travel to Town C.
The Father’s current residence in Town C which is only firmly available until early 2024 but possibly may be extended, is only 10 minutes or so from what are now agreed to be the children’s schools in Town C. X and Y currently attend primary school in Town T, as they have their whole school lives. Their half-brother R attends secondary school in Town C at D School.
Ms Tyrrell works, and has worked since 2021, close to the children’s schools, both D School and E School. Those two schools are a few minutes apart by motor car travel.
From an urban perspective, cities like Town C are described as small but if you ever have to walk around such a “small” place, it is, in fact, a regional city of a very considerable size with a substantial population of itself and the surrounding area that it services. The tragedy of the weather event at Town T, and the grief that has accompanied that, and the uncertainty as to whether those events will occur again, are matters that combine in Mr Tyrrell’s mind to determine that he does not want to live at Town T. Notwithstanding that, until a few days ago, his position was that it was in the children’s best interests that they continue to be educated, at least at primary school, in Town T because that was where their peers, friends and connections were, including the maternal grandparents.
Ms Tyrrell has for some considerable time wanted to live with her partner in Town G. That is in the area near Town C and some considerable distance from Town T, where the children would go to school. The distance of this travel is recited previously in paragraph 13.
By the time this final hearing commenced, the contest between the parties was whether the children should live with Ms Tyrrell and spend time with the Father from the conclusion of school on a Thursday until the start of school on a Monday on each alternate weekend, plus special occasions and half of school holidays, or whether the children should live initially on two out of three weekends from after school Thursday until before school Monday with Mr Tyrrell, and then from 2027 (or the start of Y being in secondary school, whichever is the latter) the children living in a week about arrangement.
The parties cases
By the time the trial commenced, the parties had reached agreement about many things. The matters that they had been apart on were the living arrangements. That difference is set out within the minute that was sent through to chambers by counsel for the respondent and marked as exhibit C1.
The Father’s proposal was;
3. The children spend time with the Father:
a.During school terms from the date of these Orders until the beginning of term one of the school yar in 2027 for two consecutive weekends out of every three from the conclusion of school (or 3.30pm if not a school day) Thursday until the commencement of school (or 9.00am if not a school da) Monday;
b.During school terms beginning in Term One of the school year in 2027, or whenever [Y] starts secondary school which is the later, on a ‘week-about’ basis with each parent from the conclusion of school (or 3.30pm if not a school day) Monday until following Monday at that time.
The Mother proposed;
3. The children spend time with the Father
c.During school terms each alternate week from the conclusion of school (or 3.30pm if not a school day) Thursday until the commencement of school (or 9.00am if not a school day) Monday. .
Ms Tyrrell did not seek to restrain where Mr Tyrrell would live; however, by the time the trial started, the parties had agreed that the children would change schools to go to school in Town C, for X at D School and for Y at E School. It is also worth noting that by the time the trial commenced, Mr Tyrrell had conceded that Ms Tyrrell could live where she wants to live. That is, in Town G.
The parties place considerable weight on the observations in the Family Report. One difficulty with the practical observations and recommendations of the family report is that at the time of the report interview, the interviews proceeded with Ms Tyrrell not being aware of that long‑term plan of Mr Tyrrell until she read the family report.
The family report occurred quite recently on 2 October 2023, and Mr Tyrrell, I find, was frank with Mr AA about his future intentions. Hence, from my perspective, on either party’s case, there are to be some considerable changes for the children in the circumstances of their lives. Their lives experienced the upheaval of their parents separating and the change of residence of each of their parents and the damage of their home.
I am satisfied that the parents’ decision at that time, though in reality that decision may well have been simply acquiescence, of the children having the continuity of remaining at the same school in Town T and continuing to be involved in Town T‑based sports was sensible.
The practical reality for Ms Tyrrell since separation or soon after separation is that she has travelled within Town T to accommodate the children’s schooling but then travelled to Town C for work. The proposal that the children would remain at school in Town T if the Mother was to live where she wanted to live would mean that she would travel from Town G through Town C, down to Town T to drop the children, and then turn around and travel back to Town C for work, and then reverse the journey at the end of the day.
The significant plank of the Father’s case is that because he is familiar with country miles and regularly drives large distances or, at least, what would be regarded for urban dwellers as large distances, is that the significant travel for the children of his proposals are not an issue. Whether it is from Town T or Town C to Town S on a weekend and back or from the Town J area to school, I consider that a long amount time for children to school travel.
It is important that I acknowledge the extent to which the parties have been able to reach agreement. By the start of the trial, court Exhibit C1 was produced to the Court which set out orders by consent from both parties, they are as follows:
1.The parties have equal shared parental responsibility for the children of the marriage:
a.[X] born [in] 2012; and
b.[Y] born [in] 2014
(“the children”).
Care Arrangements
2. The children live with the Mother.
3. The children spend time with the Father:
[the dispute]
…
d.For one half of the school term holidays by agreement, or failing agreement, for the first half;
e.For one half of the long summer holidays by agreement, or failing agreement on an alternating ‘week-about’ basis, commencing in the first week;
f.For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
g.During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in even numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
h.Should Father’s Day fall on a weekend when the children are not in the Father’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Father’s Day weekend; and
i. At such further and other times as may be agreed between the parties.
4. The children’s time with the Father pursuant to Order 3 hereof be suspended:
a.For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
b.During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in odd numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
c.Should Mother’s Day fall on a weekend when the children are not in the Mother’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Mother’s Day weekend.
5.Despite anything to the contrary herein the children will spend up to two hours with each parent on the children’s respective birthdays by agreement.
6.If NAIDOC week falls during a period the children are with the Father, his time will be suspended for that period and he shall be afforded make-up time by agreement between the parties.
Changeovers
7.Changeovers are to be at the children’s school/s on school days or if it is a non-school day, at [B Park] in [Town C], or otherwise by written agreement between the parties.
Communication
8.The parties each facilitate the children communicating with the other parent by electronic means (including by telephone, videocall, social media or messaging platforms) whilst in their respective care at all reasonable times requested by the children.
9.Each of the parties be permitted to communicate with the children by electronic means (including by telephone or videocall) on Tuesdays and Fridays by placing a call to the other parent’s nominated telephone number by no later than 6.00pm on such days.
10.The parties shall communicate with respect to the children directly by either text message or telephone call with such communication to be via the parents' nominated telephone numbers only.
Travel
11.Each party be permitted to take the children on a holiday for up to 14 days each year and that each party provide to the other party with at least 30 days’ notice in writing:
a. Of their intention to go on a holiday;
b.A detailed itinerary including flight details if applicable and accommodations for the duration of travel; and
c. Contact details for the children for the duration of travel.
12.Upon the written request of either parent the parties will do all things required and sign all documents to cause the children to obtain passports, with the Father to pay for the costs of the passports and any renewal thereof, and once issued the passports will be held by the Father save for the purpose of any travel with the Mother, with the Mother to be provided with a colour copy thereof forthwith upon receipt of passports by the Father.
13.In the event that the Mother intends to travel internationally with the children, the Father shall provide the children’s passports to the Mother not less than 21 days prior to such travel and the Mother shall return them to the Father within 14 days of the children’s return to Australia.
Schooling and Extra Curricular Activities
14. Both parties do all acts and things so as to enrol:
a. [X] to commence year 7 at [D School] [Town C] in 2024;
b.[Y] to commence grade 4 at [E School] [Town C] in 2024; and
c.[Y] to commence year 7 at [D School] [Town C] in 2027, or such other year as she may commence secondary school.
15.Neither party enrol either of the children in any school save as provided for at Order 15 hereof, save and except with the express written consent of the other party.
16.Unless otherwise agreed by the parties in writing, the parties do all such acts and things and sign all documents necessary for the children to participate in one extra-curricular sporting activity in the [Town C] area, being, unless otherwise agreed by the parties, [sports] for [X] and [Y].
17.The parties be, and are hereby, restrained from enrolling the children in any extra-curricular activity which is to occur in the time the children are to spend with the other party without the written consent of the other party.
18.The parties shall each ensure any school the children may attend is authorised to provide school reports, newsletters and applications for school photographs to both parents.
19.Each party is at liberty to attend all school, sporting and extracurricular events it is usual for parents to attend.
Exchange of Information
20.The parties shall keep each other informed at all times of their respective residential addresses and contact telephone numbers.
21.Each parent shall ensure that other, as soon as practicable, is notified of any injury, illness, hospital visits or medication prescribed for the children including in respect of mental health issues.
Restraints
22.Each party be and hereby is restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or their respective partners within the hearing or the presence of the children or any of them.
23.The parties be and are hereby restrained from permitting the children to have any communication or come into contact with [Mr F]
24. All extant applications and responses thereto be otherwise dismissed.
It is also significant that the parents have agreed that the children’s sporting activities will be centred around Town C leagues and accommodation. One incident heightened Mr Tyrrell’s fear and concern that Ms Tyrrell’s wish to move to Town G was a step on the road to Town BB which is a town further away. He had an apprehension that X had been enrolled at a Town BB sporting team by Ms Tyrrell under her maiden name, not her married name of Tyrrell.
He saw something on social media which caused him to have that concern. He did not pick up the phone and ask Ms Tyrrell what that was about, notwithstanding that his case is that the parties communicate very well about parenting matters and have an amicable parenting relationship. The other side of that coin is it did not occur to him to do so.
It did not occur to Ms Tyrrell to pick up the phone and tell him, “You might see something about X being at Town BB but he is not registered to play there and he is not going to be playing there”.
I accept Ms Tyrrell’s evidence that she did enrol X at Town BB or intend that he regularly play there, and that, for the club’s purposes, he being there that day anyway, he “sat on the bench.”
That is an example of how the parties or the parents not communicating about their anxieties and worries can lead to misunderstandings and unnecessary concerns.
Applicable Law
To determine this matter, I must apply the provisions of part 7 of the Family Law Act 1975 (Cth): Including,
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a curt must regard the best interests of the child as the paramount consideration.
Section 60CC
(1)Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a)the benefit of the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weigh it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfill, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficult or expense will substantially affect the child’s right to maintain persona and direct contact with bot parent son a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal or Torres Strait Islander child
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)that attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child o a member of the child’s family;
(k)if any family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Section 61DA
(1)When making a parenting order in relation to a child, the court mut apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child;
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that the other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The Father issued proceedings not long after separation and not long after the extreme weather event in 2022. On 8 March 2023, the matter was before the Court when significant orders were made by consent and also other Orders, determined by the Court.
The Court determined by consent the Father’s spend time arrangements with the children.
1.The parties have equal shared parental responsibility for the children of the marriage, namely [X] born [in] 2012 AND [Y] born [in] 2014 (“the children”).
2. The children live with the Mother.
3.The children shall spend time with the Father from the date of these Orders until the beginning of term four of the school year in 2023:
It is noted that 3(a) was by the Court;
[3](a)Every alternate week from Thursday 3.30pm (or the conclusion of school) until Monday 9.00am (or the beginning of school);
The effect of those orders by consent was that Mr Tyrrell was to live by paragraph 4 – that for the purpose of spending time, he will ensure that he lives in the Town T/Town C area;
4.For the purposes of the Father’s spend time as set out in Order 3(a) the Father will ensure that he lives in the [Town T/Town C] area until further order or unless otherwise agreed between the parties in writing.
Order 12 of those orders also restrained the Mother by injunction from relocating from the Town T area until further order.
12.The Mother is restrained by injunction from relocating from the [Town T] area until further order or as otherwise agreed between the parties in writing.
The Family Report interviews were on 4 October 2023. It is quite clear that shortly before the family report interviews, Mr Tyrrell had decided that he would, if he could and if he was able to, live permanently in the Town J area or the Town J/Town K area. The Mother’s counsel was critical of Mr Tyrrell for not informing the Mother that he had for a time actually already lived at Town J before being compelled to go back to Town C and not telling her that he proposed to live at Town J.
I can understand the pique or umbrage that Ms Tyrrell may feel about that, and, certainly, those advising her would feel as they prepare a case not knowing what his proposal was. However, I am not satisfied that Mr Tyrrell’s failure to disclose that was in any way malign or deceitful. It was entirely open as to where he lived. But true it is that he never picked up the phone and told the Mother of the children where he proposed to live.
It is also clear that Ms Tyrrell never picked up the phone and inquired of him, “Are you going to remain at least partly centred around Town C?” Her position was that most of the time he lived at Town S in any event. The parties did not communicate at all about the significant matter of where the Father would be.
I am also satisfied, having observed Ms Tyrrell in the witness box, that her personality is quite different to Mr Tyrrell’s. That is not intended to be a criticism of his personality but Ms Tyrrell’s personality is that of someone pragmatic, tolerant and flexible. I am satisfied Ms Tyrrell was far less irritated being compelled to live where she did not want to which prevented her from cohabiting at the accommodation arranged by her partner and the Father of her baby, that many people would be.
That very equanimous or flexible and tolerant personality of Ms Tyrrell would be the parent that Mr Tyrrell had come to know I am satisfied that it just never occurred to him to contact her and let Ms Tyrrell know, “This is what I am seriously contemplating”.
The family report
In any event, he had only come to that view shortly before the family report, and then it was not very long after the family report interviews that his plan or intention was clearly set out in the family report of 9 November 2023. The relevant paragraphs are recited below:
It is worth noting that the report writer, at places in the report, treated City H as synonymous with Town J. They are nearby but different places. Similarly, the report writer in places treated City CC as synonymous with Town S. They are nearby but different places.
2.Post-separation, the children remained with [Ms Tyrrell] and [Mr Tyrrell] spent time with them on alternate weekends Friday to Sunday, and later a Wednesday evening visit for dinner and such arrangements continued until February 2023. [Ms Tyrrell] saw that overall, these earlier parenting arrangements worked well until [Mr Tyrrell] allegedly elected to drop the Wednesday visits. On [Mr Tyrrell’s] account, he attempted to negotiate with [Ms Tyrrell] additional time with the children, but she would not agree.
…
13.The predominant issue in dispute between the parties is the future parenting arrangements of the children, whether they should live in an equal-time arrangement or primarily live with one parent and spend time with the other parent.
14.Whether there would be an adverse impact upon the children of enduring extensive travel to facilitate any parenting arrangements, particularly if a week-about arrangement was considered.
15.Each parent is seeking/planning to relocate further from one another, and they remain in dispute as to whether the children should be enrolled at a new school or remain at their current school in [Town T].
…
21.[Mr Tyrrell] is 33 years of age … [Mr Tyrrell] said that he and his partner do not cohabitate. He explained that he has constructed his business where he operates one week in [City CC] whilst staying with his partner and the other week each fortnight he works in [Town C], which supports his time with the children each fortnight.
…
28.[Mr Tyrrell] stated that his residence in [Town C] has been provided via the parties’ insurance company due to serious [storm damage] that demolished the former family home, and he will remain in this property until [early] 2024. Afterwards, he is proposing to move to [City H] with his partner. He advised the former family home is on the market for sale, and it has been agreed between the parties they will share any proceeds upon sale.
…
30.[Mr Tyrrell] stated that he is wanting to move to [City H], whilst [Ms Tyrrell] is seeking to relocate to [Town G], [50] minutes [away] with her partner, whose house comes with his employment role at a local [enterprise]. Whilst he took no issue with [Ms Tyrrell] wanting to relocate, he was of the view the children should remain attending the same Primary School in [Town T] where they are presently enrolled. However, [Ms Tyrrell] would like to change the children’s enrolment to a school in [Town C], which is a half an hour drive and that little bit closer for her. He added that [X] will be transitioning to High School in 2024, and [Ms Tyrrell] is proposing he attends [Town C] High School, but this is a large school, whereas the High School in [Town T] is much smaller, being his preference. Given the totality of such issues, he is considering moving to [Town J], just out of [City H], and he would drive the children to school each morning to [Town T] only [50] minutes away. If [Ms Tyrrell] was to agree to this plan, he would then support her position to move and live with her partner, provided the children remain attending their current school. [Mr Tyrrell] said [Ms Tyrrell] has been prohibited via Court orders from relocating at this stage, but believes she already has a lot of her belongings at her partner’s home, and once again, he has no plans to move until after [early] 2024.
…
33.As to the parties’ dealings with one another within the parameters of the status quo, [Mr Tyrrell] saw that both are getting along with one another reasonably well, they keep in touch, send one another photos of the children if they are participating in some activity, and overall, he did not see that there are many problems or issues in the parenting relationship.
…
41.[Ms Tyrrell] was asked to reflect upon the status quo, and advised that, “to a point” parenting arrangements are working… Notwithstanding such issues, [Ms Tyrrell] rated the status quo as an 8/10 to indicate the extent to which she was satisfied with such.
42.[Ms Tyrrell] advised that whilst considering any future parenting arrangements, she would like to ensure the children maintain a relationship with their father… To this end, [Ms Tyrrell] stated that she disagreed with an equal-time parenting arrangement, as it appears in her view, [Mr Tyrrell] picks and choose when he would like to spend time with the children after he elected to drop the Wednesday visits.
…
56.[Ms Tyrrell] elaborated that because she is seeking to relocate and change the children’s school enrolment, it would not be realistic to maintain a week-about parenting arrangement in such circumstances…
…
59.[X] said he misses each parent when he is at the home of the other, and did not see that he missed either parent more than the other, and confirmed he has never been frightened of either parent.
…
67.[Y] said she would like to spend one additional day with her father to have five overnights in his care. She saw the lengthy drive to school in her father’s care as uneventful, advising that she plays on her iPad during the journey and does not see that such is too lengthy. However, whilst exploring her father’s proposal, [Y] said that in reference to a week-about arrangement, “that’d be okay”.
68.[Y] said she misses each parent when she is at the home of the other and has never been frightened or scared whilst with either parent. When asked how she saw that each parent looked after her, [Y] said they make sure she is safe, particularly if she has ever been injured.
…
76.The observations of the interactions between [Ms Tyrrell] and both children appeared positive and no issues of concern were identified. Such observations were suggestive of the notion that a close, warm and loving relationship exists between the children and their mother. Moreover, there are appeared to be a positive relationship between the children and [Mr P].
…
82.The observations of the interactions between [Mr Tyrrell] and both children appeared equally positive and no issues of concern were noted. Such observations were also indicative of the notion that a loving, close and warm relationship exists between the children and their father. Moreover, [Ms M] also appeared to have a positive and familiar relationship with the children.
…
84.The terms of [Mr Tyrrell] and [Ms Tyrrell]’s relationship are detailed above and it was relatively common ground the relationship between the parties was not riddled with high conflict or substantial marital struggles, but more that through the years their marriage slowly dissolved and they grew apart. [Ms Tyrrell]’s employment, which took him away from the family for lengthy periods of time, did little to assist in solidifying family.
…
88.[Mr Tyrrell] presently resides in [Town T] with the maternal grandparents, where she has lived with both children since the time of separation three years ago, and she travels to [Town C] for work daily. She is proposing to relocate with the children to [Town G] and commence cohabitation with her partner... To better support the parenting arrangements from her perspective, she proposes to change the children’s school enrolment to [Town C], and school would be in the same town as her employment. She disagrees with [Ms Tyrrell]’s position that the children should remain attending their local school in [Town T] because it would be too far to travel each day, and she would have to drive through the town where she works and then return to work. As she starts work at 8:30 a.m., it would require the children to be dropped off at school much too early or potentially requiring before school care so she could return and arrive at work by 8:30 a.m. [Ms Tyrrell] proposes to maintain the current parenting arrangements so the children spend time with their father on alternate weekends.
89.[Mr Tyrrell] is presently residing in rental accommodation in [Town C] provided through the parties’ insurance company and he will remain until [early] 2024. He is self-employed and explained that he works one-week in the local [Town C] area and the other week in [City CC], where his partner and their young child resides, which is the week he does not spend time with the children. He is proposing to move to the [City H] area, likely after [early] 2024 when he must exit his rental accommodation, and then both he and his partner will commence cohabitation when she moves from [City CC]. As to parenting, he is seeking that the children continue attending their current school in [Town T] and the parties could then maintain a week-about arrangement, where in his view, the children would experience roughly a similar drive of a little more than an hour from his home and a similar distance from that of their mothers. [Mr Tyrrell] also appears to see that from a logistical perspective, there is little reason why he could not maintain a week-about arrangement as such is what he has actually been doing for some time, albeit slightly differently, as he spends one-week in [City CC] and the other week in [Town C].
90.Notwithstanding the above, it would appear in this report writer’s opinion that each parent holds steadfast to their respective position, attempting to prioritise what they purport to be the best interests of the children, but in actuality, such would appear to better meet their own personal needs… He would appear in this report writer’s opinion, to remain fixated upon one plan to move with his partner to [City H], keep the children in their current routine and current school, and commence a week-about parenting arrangement, without being prepared to even consider alternative options.
…
92.[Mr Tyrrell] and [Ms Tyrrell] present competing positions, where each seeks to highlight the merit of their respective views regarding the future parenting arrangements… This report writer has been concerned with both parent’s respective positions as either way, the children will be experiencing lengthy travel either between each parent’s respective homes or to/from school, but there would be less travel should the children remain primarily living with their mother and she relocates to [Town G].
93.Further, it is this report writer’s assessment that it would appear [Ms Tyrrell] has a greater need to stabilise her living arrangements, provide independence, and a move would also provide opportunity for the children to have more appropriate living arrangements in the new home she aims to establish with her partner…
97.Based upon the aforementioned and in the absence of any further information to the contrary, it is respectfully recommended [Mr Tyrrell] and [Ms Tyrrell] equally share parental responsibility regarding both subject children, [X] born [in] 2012 and [Y] born [in] 2014.
98.[X] and [Y] to remain living with their mother, [Ms Tyrrell].
99.[Ms Tyrrell] be permitted to relocate with both subject children to [Town G].
100.The parties to enrol [X] and [Y] at a new High School and Primary School respectively in [Town C] to commence the 2024 academic year at schools as agreed between the parties.
101.[Mr Tyrrell] to spend time with [X] and [Y] for two weekends out of every three from the conclusion of school on Friday to the commencement of same the following Monday morning.
…
In the meantime, and setting the context for the family report interviews, was the orders that I have recited in regard to 8 March. It is clear that the report writer did not regard the Thursday to Monday weekend arrangement as practical. He recommended against an equal time arrangement, and he recommended against a Thursday to Monday arrangement.
It is significant to me that Ms Tyrrell’s attitude to parenting was that, although not ideal from her point of view, the existing orders of 8 March 2023 had worked well enough, and that rather than leaping on the opportunity to trim back the Father’s time from a Friday to the Monday, she had maintained a position that his time should commence on the Thursday evening after school and continue until the Monday morning. That is, an extra day for the Father than what was previously recommended by the report writer.
That has within it the obligation on Mr Tyrrell to collect the children from school on a Thursday, get them back to school on a Friday, collect them from school on a Friday, and then get them back to school on a Monday morning.
Mr Tyrrell’s evidence, which was unchallenged and which I accept is that he would not, and had never contemplated, an arrangement whereby the children would be returned to school from Town S on a Monday morning, and that he would always return to the Town C area prior to school starting, so that the journey to school either on a Friday or a Monday was much shorter.
The report writer recommends two of three weekends of the Friday to Monday. That is, a more frequent weekend arrangement but for a shorter period. It also needs to be noted that early in the piece after separation, the parties had between themselves, or maybe with the assistance of lawyers, sorted out an alternate weekend arrangement for the children plus time of a Wednesday.
Notwithstanding that Ms Tyrrell was prepared for the Wednesday to continue, that did not continue simply because it was not practical for Mr Tyrrell, given the other demands on his life, including his life in Town S with Ms M, who was pregnant with N.
I am not critical at all of Mr Tyrrell for not continuing to, basically, stay in the Town C area to make the most of the Wednesday night when he had the other multiple demands on him.
It is important also to note that the parties, because of a long-shared life together, both have considerable personal connections to the Town S area and both have friends and acquaintances in common. It is significant and of the benefit to the children there is simply no antagonism or conflict either between the parents or between the parents and the new partner of the other or between the new partners, at all.
In that sense, this family (though, I suspect, they do not realise it) is a textbook lesson to many others of how to get on with life for the benefit not only of themselves in the absence of all the grief that unnecessary conflict would cause for the children, I am very grateful to the parents and to the new partners for their capacity to be able to get on with life, and, no doubt, from time to time have to hold their tongue and miss an opportunity to say something or communicate some irritation by body language. I am satisfied these families, have consciously tried not to do that, and sadly their maturity in being able to manage those personal relationships in that manner, is too rare.
Application of the law
I must now turn to section 60CC of the Act. It is common ground that the children would benefit from a relationship with both parents. It is common ground that there are no issues of risk of psychological or physical harm to the children. The children’s views, given their ages, are not significant to determining the dispute but what their views tell me is that the children love and are devoted to both of their parents and recognise that each of their parents love and are devoted to them. The children have expressed to the report writer that they would be okay with greater time than currently, and Y would like “one more day” with the Father.
The Father has given evidence that the children have told him that they would like to spend more time with him, and I accept that evidence, however, it is in the context of the children being well aware of their Father’s love and devotion to them and his desire to be able to spend all the time that he practically can.
That would be an enormous influence on what the children tell their Father. Likewise, the children have not told Ms Tyrrell that they want to spend any more time with the Father. They would also be well aware of her position that she wants to spend as much time as she is able with them.
Turning then to 60CC(b), I refer to and repeat what to me are the most important parts of the family report, and that is his observations at paragraph 76 and 82 of the family report of the close and appropriate relationship the children have with each of their parents.
That is a credit to each of the parents to the extent that they have maintained that relationship themselves with their children but also a credit to each of Mr Tyrrell and Ms Tyrrell that they have enabled the children to have the emotional space and permission to have that close relationship with the other parent.
In terms of 60CC(3)(c), the extent to which anyone has failed to take an opportunity to spend time or make decisions with the children, I am satisfied that as far as practical, Mr Tyrrell has taken every opportunity to spend the time he can with the children and that Ms Tyrrell has done likewise.
The reality is, for the sake of the children’s welfare, Ms Tyrrell has put her life’s plans of living with Mr P in Town G on hold, and, likewise, Mr Tyrrell has cut and pasted his life around his obligations or desire to spend time with the children and has from time-to-time sacrificed time with his partner and his child N and his business to enable that to happen.
So, I am satisfied that both parents have, as far as realistically practical, taken every opportunity to spend time with the children.
Section 60CC(3)(ca) is the extent to which each party has fulfilled their obligations to support the children. It is not disputed that currently Mr Tyrrell’s child support obligation is minimal but has previously been more. That did not turn out to be any significant part of Ms Tyrrell’s case and the financial circumstances of all that was not explored further, so I place little weight on it.
Section 60CC(3)(d) is the likely effect of changes in the children’s living arrangements and likely effect of separation from any person important to them. The issue of separation from any person important to them just does not arise on the evidence. No party proposes that they will be separated or fail to have time with anyone.
I refer to the significant changes that are going to happen later this year or early next year on either party’s case. They are going to change school. They are going to commence cohabitation in the Mother’s household with a man with whom they are familiar but with whom they have not actually lived on a permanent basis before. They are going to relatively soon live with not only their Father but Ms M and baby N. That circumstance is less certain and there is a significant uncertainty about when that will be and where, but will come to pass sooner or later, and that is one more change that the children will have deal with.
The evidence is that X has some significant anxiety which has manifested itself in some unhappiness at school. The parents, whatever I decide, are going to have the job of managing X’s anxiety along with these changes in the children’s arrangements and the significant unhappiness of whichever parent does not get their way in this decision before me.
There is no way around it. One of them, or possibly both of them, are going to be profoundly disappointed. One option is that I do not do what either parent wants but do what the report writer recommends, which is to have two out of three weekends with only the Friday to the Monday. I have considered that because the report writer has recommended it and he is a person of considerable expertise and experience in this area of children’ s welfare but I do not propose to accept the recommendation.
I do not accept it because the common sense, practical parents do not support it and, further, I am satisfied that when I have two working parents that each parent should have their own weekend: as opposed to one of them having double the weekends the other has because the other one would have more time with the children during the week.
The reality for both of these parents will be that during school term, it is very busy during the week and they will be flat out accommodating a little baby, significant travel to work and significant travel to school. For that reason, I am not satisfied that a two out of three-weekend regime is in the children’s best interests.
Further, I am not satisfied that the restriction on the Father’s time of involvement in school from, effectively, being four times each fortnight (Thursday evening, Friday morning, Friday afternoon and Monday morning) should be cut to half. So that instead of attending and being involved in the school changeover, seeing who the children’s school friends are, seeing the children’s teachers, the opportunity for the children’s teachers and peers to see the other parent, for them to mix with the other children’s parents at their school, should be reduced from that not huge number anyway of four back to two. On Mr Tyrrell’s proposal, that would be increased to an equal time arrangement.
The 60CC(3)(h) is to take into account if the child is an Aboriginal child or a Torres Strait Islander child. Ms Tyrrell is an Aboriginal woman of the DD People, which is of New South Wales. Ms Tyrrell’s affidavit material highlights from her perspective and her opinion the advantages of living in Town G and the children living with her, promoting connection to Aboriginal culture.
I am not satisfied that that is a significant matter in this case. On either party’s proposal, Ms Tyrrell will have sufficient time with the children to be able to maintain that important culture and, in addition, she works and is significantly involved in an Aboriginal welfare organisation.
In this case, the issue of family violence, coercive and controlling behaviour and intervention orders is not a factor of the case, as I have recited earlier.
Section 60CC(3)(m) is any other fact or circumstance that is relevant. That circumstance is, to my mind, the practicalities on a day-to-day basis of either parent’s proposal. There is a significant degree of uncertainty as to Mr Tyrrell’s proposal as to how and when those living arrangements will occur. In his mind, he is absolutely comfortable that by making whatever sacrifices to either work, career or his relationship with Ms M or time for travel on a daily basis, that he will make it work, and I am satisfied that he is genuine in that proposal.
Nonetheless, the uncertainty of just what would be the children’s arrangements if they were to be, on Mr Tyrrell’s proposal, travelling to and from school on two out of three weekends plus two out of three Thursday and Friday mornings, is a significant matter that weighs on me.
That is not a criticism of Mr Tyrrell. In fact, he has a flexibility and an ability to simply cope with life and get on with things. That would be very much to his children’s advantage. That is, by way of his example, demonstrating his capacity for resilience. However, that is a significant matter.
The other significant matter is, as explained by the High Court in the decision of MRR v GR 240 CLR 461 is that a significant part of the scheme Part VII of the Family Law Act as it currently is, including section 61DA and 65DAA, is the issue of practicality, and the High Court points out that the Parliament has directed me to significantly consider and weigh up practicality.
Ms Tyrrell’s attitude to the proposal of the Thursday night, Friday morning, as well as the alternate weekend being a permanent and continuing arrangement is very much one of acquiescence and compromise, as opposed to what she sees as an ideal situation.
It is also significant that she trusts Mr Tyrrell, notwithstanding the disadvantages of that travel, to make the most of it and make it work. That attitude to parenting and to trust in the other parent is very significant to me. Nonetheless, I am not satisfied that Mr Tyrrell’s long‑term proposal of living in the Town J/Town K area (noting that Town K is on the DD Road and it is just that little bit further from the children’s school than Town J) that it is practical. There is, on one view, if your glass is half full, to say, “It is only an hour or so”, but it is a bit more than an hour.
There are many children all over Victoria who travel a bit more than an hour by public transport, ironically mostly in the major cities where many children travel more than an hour on public transport to get to school. Many children in regional areas travel in the order of half an hour to an hour by school bus or, certainly, by the combination of being driven to the school bus stop to wait for the school bus, get on the school bus and go to school. Many children travel that distance.
That does not mean that because many children are able to do that or have no alternative but to do that, that travel of that extent is practical. Hence, I am not satisfied that Mr Tyrrell’s proposal about the travel, either on the two out of three weekends with the Thursday to Monday or on the equal time from 2027, is practical.
I just want to turn to the issue of determining the practicalities, (under section 60CC(3)(m)) of the children’s ages. It is significant that Ms Tyrrell at the time when she was not aware of the proposal of the living in Town J but was contemplating Mr Tyrrell living permanently in Town C, or at least the Town C area, that she told the report writer that she would be open to considering equal time when Y was in secondary school.
At the start of the school year in 2027, provided X goes up a grade each year, and there is no indication that he will not, he will be 15 or having just turned 15 and be going into year 10. Y will be twelve and be going into year 7 and at a new school. I am not satisfied that it can be fairly described as a practical arrangement to lock that arrangement in place at this time when there is a significant degree of uncertainty as to two things. One, where Mr Tyrrell will be living; two, how the children would cope at that age with a different living arrangement in terms of their connection with peers, school friends and involvement with school activities, and the potential for significant additional travel.
Turning now to section 61DA, I must consider 61DA. As recited earlier, the presumption does not come into play in this case because the parents agree that there should be an order for equal shared parental responsibility. The parents are optimistic about their capacity to reach agreements, as it has only been in the last few days that they have reached agreement that the children will change schools. Nonetheless, I think that optimism is well founded but an order for equal shared parental responsibility compels me, as a matter of law, to consider an equal time arrangement, and if that is not suitable, a substantial and significant time arrangement. I refer to section 65DAA, which has recited earlier.
If there is to be an order for equal shared parental responsibility, I must consider whether the children spending equal time with the parents. I must consider.
(a)whether that is in the children’s best interests; and
(b)consider whether that is reasonably practicable.
At this point in time I must consider, and seriously consider, equal time.
The children’s relationship and the strength of that relationship with Mr Tyrrell is a good starting point to consider whether that is in their best interests, however, in all of the circumstances of this case, in particular, the findings I have made under section 60CC, I am not satisfied it is in the best interests of the children, and I am not satisfied that it is reasonably practicable, and hence the provisions of the section 65DAA do not come into play.
If I do not apply equal time, I must consider substantial and significant time, and substantial and significant time means more than time on weekends. It means time for a parent to be involved in the child’s daily routine. Both parents agree that the school term time –should be Thursday through to the Monday morning. That means that there would be substantial and significant time.
I want to make it clear that I regard Mr Tyrrell’s position to the report writer, rather than being transactional but simply being open, frank and open to compromise. However, Ms Tyrrell would experience those frank communications of him being open to considering alternatives and open to compromise, as controlling and/or transactional.
It is significant that she does not; that she simply regards it as, “Well, that is how he feels”. She does not like it but she simply gets on with life in the meantime.
My conclusion is that the orders pressed by the Mother are in the children’s best interests. That is that the controversial time will be alternate weekends, Thursday through to the Monday. The reasons why I make that decision are very much founded from the observations that I have otherwise made and very much founded from the position of the children have two very good and devoted parents.
Mr Tyrrell’s proposal is not practical for the children, and Ms Tyrrell’s proposal does support his relationship. She has demonstrated that she is able to support the children’s relationship with their Father and her decision to press those orders, which are the same as what has been in place since 8 March 2023, is motivated by her view of the welfare of the children as opposed to antipathy or anger towards Mr Tyrrell.
I am satisfied that the children have a very good relationship with both parents, and I am satisfied that the children maintaining their connection with their Father is in their interests. I am satisfied that he will be able to make the Thursday night and Monday morning work, to the extent to which the children are able to cope with that additional time on those occasions every second weekend. This will depend very much on the Father’s relationship with the children and the manner in which he deals with that travel that would otherwise be seen as significant travel.
They are the reasons why I make those orders. So, I will make the orders as set out at what is 3(c) of exhibit C1 (the Mother’s proposals), which will become 3(a), and the other orders will be renumbered accordingly.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 December 2023
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