Woodby and Joye

[2020] FCCA 2906

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODBY & JOYE [2020] FCCA 2906

Catchwords:
FAMILY LAW – Parenting – concerning children’s time spent with their father – where the children are 11, 10 and eight years old – where the children have expressed the view they prefer spending time with the father on weekends – where the father’s work roster does not always align with weekends – children to spend time with the father on weekends when the father is available.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS WOODBY

Respondent: MR JOYE

File Number: DNC 261 of 2020

Judgment of: Judge Young

Hearing date: 6 October 2020

Date of Last Submission: 6 October 2020

Delivered at: Darwin

Delivered on: 6 October 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

The Respondent: In person

ORDERS

UPON NOTING

That the matter is proceeding to a conciliation conference on 27 October 2020.

BY CONSENT UNTIL FURTHER ORDER:

1. That all previous parenting Orders be discharged.

2. That the parties have equal shared parental responsibility for X born 2009, Y born 2010 and Z born 2012 (‘the children’).

3. That the children live with the Mother.

4. That the children spend time with the Father during the school holidays at all times as agreed and in default of agreement as follows:

   (a)From 04 January 2021 to 22 January 2021;

   (b)From 05 July 2021 to 19 July 2021; and

   (c)From 04 October 2021 to 11 October 2021.

5. That within 48 hours of the Father receiving his roster, the Father shall provide to the Mother a copy of each work roster to the Mother’s email.  

6. That if the parties are in the same geographic location on the following days of significance, Orders 3 and 4 above shall be suspended and the children spend time with the parties as follows:

   (a)With the Mother from 9.00am to 5.00pm on Mother’s Day in each year;

   (b)With the Father from 9.00am to 5:00pm on Father’s Day each year;

   (c)With the Mother from 9.00am to 5.00pm on the Mother’s birthday in each year, being 13 December;

   (d)With the Father from 9.00am to 5.00pm on the Father’s birthday in each year, being 28 October;

   (e)For not less than three hours with the Father on the children’s birthdays;

   (f)In odd numbered years, the Father spend time with the children from 12:00pm Christmas Eve to 2:00pm Christmas Day, and in even numbered years the Father spend time with the children from 2:00pm Christmas Day to 2:00pm Boxing Day;

   (g)In even numbered years, the Mother may spend time with the children from 2:00pm Christmas Eve to 2:00pm Christmas Day, and in odd years the Mother may spend time with the children from 2:00pm Christmas Day to 2:00pm Boxing Day;

7. That for the purpose of changeovers, all changeovers on school days occur at school and on non-school days, school holidays and other public holidays, changeovers occur at the Mother’s residence or as otherwise agreed between the parties.

8. That the Father communicate with the children at all reasonable times by calling X’s mobile telephone or the Mother’s mobile telephone.

9. That a copy of these Orders authorises the children’s schools and medical practitioners to provide to each of the parties:

   (a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the children; and

   (b)Copy of medical reports including any referrals, information regarding any medical condition suffered by the children, including treatment and any other information or material concerning the health and wellbeing of the children.4

10. That the parties will:

    (a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

    (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change; and

    (c)Advise each other of any medical or other emergency involving the children whilst in their respective care.

11. That the children be permitted to travel intrastate, interstate and/or overseas with either of the parties provided that the party with whom the children are to travel provides to the other party not less than 14 days written notice and provides itineraries, contact addresses and telephone numbers for the children whilst they are interstate or overseas so that the children can communicate with the other party at all reasonable times.

12. That not less than seven (7) days prior to any notified overseas travel, the Mother provide to the Father, the children’s passports and the Father return the children’s passports to the Mother immediately upon the conclusion of the overseas travel, with the Mother to retain possession of the children’s passports.

13. That each parent be restrained from denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family.

14. That each parent be restrained and an injunction is granted restraining them from discussing the court proceedings with the children or allowing the children to read or view any court documents.

AND UNTIL FURTHER ORDER:

1. That the children spend time with the Father during school terms at all times agreed and in default of agreement as follows:

   (a)During any period between each Friday to Sunday inclusive the Father has a rostered day or days off; and

   (b)In the event the Father’s rostered day off includes a Saturday only, the time spent shall commence from after school Thursday and conclude at 6.00pm the night prior to the Father recommencing work.5

2. In the event the Father’s work concludes at 3.00am, the Father shall collect the children at 10.00am from the Mother’s residence if a weekend day or from after school if a weekday.

3. That changeovers occur at school on a school day and otherwise at the Mother’s residence.

4. That the proceedings are adjourned to the trial call-over list on 29 January 2021 at 2.15pm for further directions.

5. That the parties no less than seven (7) days prior to the call-over date provide to the Court:

   (a)a brief Summary of Argument including Minute of Orders sought; and

   (b)a trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

6. That pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. DNC 261 of 2020

MS WOODBY

Applicant

And

MR JOYE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application concerning the time that three children are to spend with their father.  The children are X, who is 11 and a half, Y, who is 10 and a half, and Z, who is eight and a half. 

3. The parents formerly lived in a rural area of Darwin and evidently had plenty of space.  After the parties separated the father moved into a two-bedroom unit in an inner Darwin suburb and the children have been spending time with him in that two-bedroom unit.  Apparently the arrangements are that the boys sleep in one bedroom and Z sleeps with her father in the other bedroom. 

4. A child inclusive report was prepared on 20 August 2020 to consider the time spending issues.  A principal difficulty arises from the fact that Mr Joye is a public servant who works on a four days on/four days off roster.  He has not provided me with a copy of the orders he seeks or provided me with a minute which sets out what he wants.  It has been, therefore, difficult to follow the arrangements that might apply if each proposal was adopted. 

5. In summary, the father told me that he seeks orders that the children spend time with him every second batch of his four days off, as I understood it, so as I understand it that would mean that on a four-day roster the children would spend four nights out of 16 with him, that is 25 per cent of the nights.

6. Of course, because his roster is four days on/four days off roster it is not coordinated with the school week, which would mean that sometimes the children would be spending time with the father on the weekend and sometimes the children would be spending time with him during the week, with the apparent disorganisation or inconvenience I am satisfied it would be of the children moving households during the school week.  That is notoriously a difficult arrangement to make work properly, even with parents who are fully cooperative, and in this case there is nothing to indicate to me that these parents are fully cooperative.

7. The other issue is that in the case of the older boys, X and Y, they both identified to the family consultant that they did not like the father’s apartment, particularly in contrast to where they had lived, which provided plenty of space for physical and outdoor activities.  X, for example, said that he would like to do more weekend activities with his father, such as camping and fishing; in other words, getting outdoors.  Y was somewhat of the same view.  He was reluctant to spend time with his father outside weekends but that appeared to have reflected his mother’s view.  In any event, Y was ambivalent about spending any midweek time with his father.  Z said that she enjoyed her weekend time with the father, particularly camping and fishing. 

8. I am not satisfied that the father’s proposal, which would see the children spending time with their father according to a reasonably complex revolving roster, sometimes on the weekends and sometimes during the week, is appropriate for these children or in their best interests.  It would appear to me that, if the father’s proposal was adopted, the children would be spending most of their time with the father during the week while they were going to school.  I am not satisfied that that is an arrangement that is in their best interest. 

9. I, therefore, propose to adopt the mother’s proposal, which will see the children spend time with the father on the weekends when he is not rostered to work.   

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 26 October 2020