Tyson & Tyson

[2007] FamCA 304

FAMILY COURT OF AUSTRALIA

TYSON & TYSON [2007] FamCA 304

FAMILY LAW – CHILDREN - Spend time with in holidays

Family Law Act 1975 (Cth)

APPLICANT: MR TYSON

RESPONDENT: MRS TYSON

FILE NUMBER: MLF 1093 of 2006

DATE DELIVERED: 19 MARCH 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 MARCH 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR McGOWAN

SOLICITOR FOR THE APPLICANT: JULIE TAYLOR

COUNSEL FOR THE RESPONDENT: MS SMALLWOOD

SOLICITOR FOR THE RESPONDENT: SUSAN RUFFIN

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MS SMALLWOOD

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: VICTORIA LEGAL AID

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1093 of 2006

MR TYSON

Applicant

And

MRS TYSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Tyson is before me in the defended list of cases.  I have heard evidence on children and parenting issues and also on property and financial issues.  The case is part-heard at this stage but the parties and their legal practitioners have had discussion time out of court and have resolved, save for one issue, the children and parenting matters.  The property and financial issues remain in dispute and are ongoing.

2. Mr McGowan of counsel appears for the husband, Ms Smallwood of counsel for the wife and Ms McNamee is briefed by the Independent Children's Lawyer.  Their discussions have produced a minute of proposed order to the court whereby all current parenting orders are now to be discharged and the parents are to have ongoing equal shared parental responsibility for the three children of the marriage E, aged almost 17 years, R, 14 years, and L, 11 years.  The children are to live with their mother and spend time with their father. 

3. The times that the children are to spend with the father are largely agreed save one issue, and that is over the Christmas-January long school vacation period.  There is specific agreement that in the 2007‑2008 long school holiday the children are to be with their father and are to have available to them the opportunity to attend a camp, either residing in a caravan or tent as may be organised, at W between 6 and 21 January (inclusive).  The reality of that circumstance means that the children will then be with their mother from Boxing Day until 5 January 2008 and thereafter, on return from W, from 21 January pending resumption of school.

4. There is no agreement for the 2008-2009 long school holidays and thereafter, though it is clearly understood by both parents that the wife will have a meaningful holiday with the children in that time.  The minutes as presented provide for the parents to share half of school term holidays and I do not propose to amend or vary that agreement.  I refer to that issue because in submissions Ms Smallwood on behalf of the wife has put forward an alternate proposal whereby her client would have all of the September two-week break in this coming year and in years thereafter. 

5. There may be significant commonsense in that approach and it might afford the children a holiday at that time with their mother in lieu of the Christmas holiday.  That may otherwise have facilitated a more satisfactory Christmas holiday arrangement for the father.  Nevertheless, he instructs his counsel that he does not agree nor does he see logic in that holiday apportionment of time.  Given the orders that were presented to me by consent I do not propose to go behind the school term holidays and will not entertain an order for the whole of the September holidays in favour of the wife.

6. Returning to the Christmas school holiday period, there is much logic in ensuring that the children, or such of them as are then looking for a holiday with their respective parents, have time to enjoy such a holiday.  The orders that I make must be in the best interests of the children.  I am aware of their age.  The orders do not include in the eldest child.  R will soon be of an age where, because of studies or part-time employment to save money or teenage friends and other interests, she will be having thoughts of a different type of holiday, perhaps more based on her peer group than on family.  I do not necessarily make that finding as it would vary from child to child in reality.  L is now 11 and he would likely be more family orientated for the next four or five years.

7. Having said that, this court has to make a decision because there is an appalling lack of communication between the parents.  I have heard evidence in the case describing the parental contact and decision-making as disgraceful or appalling or non-existent.  That is no doubt accurate and reflects the inability of the parents to discuss simplistic issues.  The court must make a decision, and so I determine and will have orders drafted by counsel when the consent orders are prepared - though these orders will be on a not-by-consent basis - that for the long term December-January school holidays 2007 and 2008, the husband will have the 6th to the 21st inclusive in January, and the wife the periods of time both prior to the 6th and after the 21st, and save for the Christmas Eve and Christmas Day orders.

8. That situation can apply to the husband in each alternate year, so that in the year 2010‑2012 and ongoing, perhaps even into the children's adult years, if they wish they can attend with him at W and enjoy the delights of the camping ground.  In the 2008‑2009 year, my intent is to order that the wife has a continuous period of 16 nights with the children, R and L or one or other of them, of her choosing at a time in January or late December. 

9. The husband therefore will have, subject to the exclusion of Christmas Eve and Christmas Day as per the orders, a period of time from the break‑up of school prior to the wife's election of her 16 consecutive nights and/or then a period prior to school but always that the children are returned to their home to make ready for school at least two clear days prior to the resumption of school.  Likewise, that order will apply in the 2010‑2011 long-term school holiday period, though by then only L will be at school, and likewise ongoing into their adult years if the parents cannot otherwise decide.  I will have these reasons for judgment transcribed, placed upon the court file, and that will apply for the whole of the ongoing Christmas holiday period.

10. I think it would be appropriate on reflection that the wife would have to notify the husband of her period no later than 1 October in the prior year, so that on 1 October 2008, the wife must notify, in writing, the husband of the period that she has selected for her 16 consecutive nights, and that can fall at any time after Boxing Day and before the end of school.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 4 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TYSON & TYSON