WITHERS & RUSSELL

[2020] FamCA 847

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL [2020] FamCA 847

FAMILY LAW – CHILDREN – interpretation of orders – where orders provide for Mother to elect two one-week periods during the school term – interaction of that order with order for alternate weekend time.

Family Law Act 1975 (Cth)

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

INDEPENDENT CHILDREN’S LAWYER: Mrs Lloyd

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 2 October 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Mazengarb Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Notation

1. This judgment concerns Contravention Application filed by the Father on 4 September 2020 and 21 September 2020 and the proper construction of Order 13.6 of Justice Watts of 20 September 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 223 of 2015

Mr Withers

Applicant

And

Ms Russell

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern contravention application(s) filed by the Father against the Mother.  The parties have identified that the issue between them falls to be determined on the construction of the orders made by Watts J in relation to term time with the children when the Mother is present in Australia.  They each advance competing interpretations as to the operation of the orders in regard to the interaction between order 13.1 and order 13.6.  As a preliminary matter they have asked that I determine the interpretation of the orders.

2. Order 13 is in the following terms:

   If the wife is in Australia, the children are to spend time with their parents in Australia as follows:

   13.1With the wife on each alternate weekend from after school and preschool on a Friday (or 3pm if Friday is a non-school day) to before school and preschool on Monday (or 9am if Monday is a non-school day) with the wife to pick the children up from school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address) and deliver them back to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address);

   13.2With the wife on each alternate Tuesday night in the off week from after school and preschool on Tuesday (or 3pm if Tuesday is a non-school day) until before school and preschool on a Wednesday (or 9am if Wednesday is a non-school day) with the wife to pick the children up and drop them off from and to school and preschool (or if a non-school day, absent any other agreement, the husband’s residential address).

   13.3With the husband for the whole of the term 3 2016 school holidays;

   13.4From term 4 2016 school holidays and each other term 4 school holidays, with the husband for the first half of all school holiday periods commencing in years ending in an even  number and the second half of all school holiday periods commencing in years ending in an odd number;

   13.5From term 4 2016 school holidays and each other term 4 school holidays, with the wife for the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in an even number;

   13.6From term 1 2017 and upon the wife giving the husband 4 weeks notice in writing, for two one week periods during any school term, which weeks are not consecutive school weeks (but not to include the last week of term 4 or week one of term 1);

   13.7From term 1 2017 school holidays with the wife for the whole of term 1, 2 and 3 school holidays provided the wife gives to the husband 2 months notice of her intention to have the children with her during any particular school holiday period;

   13.8With the wife from 9am until 5pm each Mother’s Day and with the husband from 9am until 5pm each Father’s Day;

   13.9On the children’s birthdays each year with the parent with whom the child is living to make the children available to spend time with the other parent for a period of at least three hours at a time to be agreed between the parents but failing such agreement from 4pm to 7pm;

   13.10On each of the parent’s birthdays if the children are not with the parent who is having the birthday then the other parent will make the children available to spend time with that parent for at least three hours at a time to be agreed upon between the parents but failing such agreement from 4pm to 7pm.

   13.11On Christmas Eve, Christmas and Boxing Day the following orders apply to the time the children spend with the parents:

   13.11.1In even numbered years from 10am on Christmas Eve to 10am on Christmas Day with the wife and from 10am Christmas Day to 10am on Boxing Day with the husband;

   13.11.2In odd numbered years from 10am on Christmas Eve to 10am on Christmas Day with the husband and from 10am Christmas Day to 10am on Boxing Day with the wife;

   13.11.3Such further and other times as the parties might agree.

3. Order 13 is in the context that the children live with the Father.

4. The parties are agreed that the interpretation of the orders, insofar as it relates to the resetting of alternate weekends during each term is that where one parent has the children for the last weekend of the school holidays, the other has the children for the first weekend of the school term.

5. The parties have also agreed to modify the operation of orders 13.1 and 13.2 such that, rather than have a Tuesday evening in the off week, that night has been consolidated with the alternate weekend such that the children now spend from after school Friday to before school on Tuesday each alternate weekend with the Mother.

The contest between the parties

1. The Mother asserts that her ability to nominate two week periods each school term at order 13.6 does not displace the alternate weekend arrangement.

2. This has the practical effect that the Mother can nominate a week in a manner that means that she can have three weekends in a row, if the nominated week spans the Father’s usual weekend.  If the Mother then nominates another week on the next occasion that the Father is due to have the children across a weekend, then the Mother’s approach will result in her having the children for five weekends in a row across a term.

3. The Father’s position is that if the Mother nominates a week that incorporates a weekend, then the following weekend is no longer an alternate weekend, and the children are not therefore due to spend time with her on that weekend.  He says that there is an effective resetting of the alternate weekend time where the Mother nominates a week.  He asserts that any other construction defeats the alternate weekend pattern imposed at order 13.1.

4. There is sense in each of the positions advanced by the parties.  In circumstances where the Mother lives for extended periods in the United States of America, the Mother’s construction maximises the time that the children have with her for the periods that she is in Australia.  However, on the Mother’s construction the Father, who is charged with the primary care of the children, may not have the children with him for up to five weekends in a row during term time.

Interpretation of the orders

1. The orders are to be interpreted on the ordinary meaning of the language used, and to be interpreted in a manner so as to avoid defeating the provisions therein.

2. Order 13.6 is a provision of term time with the Mother additional to the time she will otherwise spend with the children, including additional to the alternate weekend time.  While the terms specifically restrict the Wife from nominating consecutive weeks or the last week of term 4 or first of term 1, no other restriction is placed on her nomination (other than as to the timing of the nomination and the requirement that the Mother be in Australia).

3. The additional weeks able to be nominated by the Mother should be seen as layering over the other order in relation to term time rather than implicitly amending its operation.  No provision is made to provide the Mother with makeup time in the event that her nominated week spans one of her alternate weekends.  No makeup time is provided for the Father in relation to time that he misses out on in relation to such weeks.  Order 13.6 should be seen as additional to order 13.1 in the time allocated to the Mother.

Conclusion

1. The Mother’s nomination of a week during the term does not effect a resetting of the alternate weekend regime.  The underlying pattern of alternate weekends is not affected by the nomination of a week by the Mother that includes a weekend that would otherwise be with the Father.  Alternate weekends continue undisturbed and unaltered by a week nomination made by the Mother.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 October 2020

Associate: 

Date:  2 October 2020