ABDU LOFTEN & INNA

[2015] FamCA 176

FAMILY COURT OF AUSTRALIA

ABDU LOFTEN & INNA [2015] FamCA 176

FAMILY LAW – CHILDREN – interim parenting – where the court has very limited information – where the parents are in a highly conflictual relationship – where the father wants to minimise the children’s exposure to the conflict – where there are to be less changeovers – where the changeovers are to be in a public place – best interests of the children.

Family Law Act 1975 (Cth)

APPLICANT: Mr Abdu Loften

RESPONDENT: Ms Inna

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 2549 of 2014

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 March 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mitry Lawyers

SOLICITOR FOR THE RESPONDENT: Zali Burrows Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brooks Howick Law

Orders

1. Order 4(2.1) of orders dated 20 October 2014 is discharged and in lieu the children are to spend time with the father each alternate weekend from after school Friday until 6.00pm Sunday commencing 13 March 2015.

2. Changeover on the Friday afternoon is to occur at the children’s school and on Sunday afternoon at McDonald’s Suburb D

3. The matter is adjourned to 13 April 2015 at 9.00am for continuation of the Less Adversarial Trial.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2549 of 2014

Mr Abdu Loften

Applicant

And

Ms Inna

Respondent

REASONS FOR JUDGMENT

1. This is an application for short term interim orders in relation to B born in 2005 and C born in 2008 (“the children”) prior to the matter going to mediation being facilitated by the Independent Children’s Lawyer and returning to Court.

2. The current arrangements are that the children spend time with their father from 11:00 am Saturday to 4:00 pm Sunday on each weekend.

3. The father is concerned that from his perspective the children are exposed to a great deal of conflict between the parties and he feels that it would be in the best interests of the children that the changeover for their time with him should occur at school to reduce the children’s exposure to conflict. He also proposes the children’s time with him should occur ideally for a more extended period of time every second weekend, rather than every weekend.

4. The mother has agreed that the time together can occur every second weekend rather than each weekend and that it should commence after school on a Friday. The father proposed that the children’s time with him finish before school on a Monday and that he deliver the children to school.  However the mother does not agree with this proposal and the Court is not in a position at this time and in these circumstances to actually determine that issue.  In those circumstances, the father amended his Application to after school Friday until Sunday afternoon.

5. The only matters remaining in dispute are where changeovers should occur. The mother did indicate right at the very end of making some submissions that in fact she would prefer the time begin a little while after the end of school so that the children could come home first.

6. The Child Responsive Program memorandum refers to the level of conflict between the parents.  In the opinion of the Family Consultant the parents have an acrimonious post separation parenting relationship with very poor communication and limited trust.  He also says that neither parent indicated that they have had any significant understanding of the adverse impact that their conflict may have on the children, though it may be that the parents in recognising this new arrangement that is being contemplated have started to have a concept of the adverse impact of their conflict on the children.  However, I am concerned that the mother appears to think that unless the children are directly exposed to that conflict they are unaffected by it and that she does not appear to appreciate there are other subtle ways in which the children have been exposed to that conflict.

7. In my view, the proposal of the father which is supported by the Independent Children’s Lawyer that the changeover occur immediately after school and at school on a Friday is the arrangement that would be in the children’s best interests.  On the limited information available to me I am not in a position to go through all of the best interests considerations under the Family Law Act 1975 (Cth) (“the Act”) but I do rely on the Family Consultant’s assessment of these children being exposed to a very high level of conflict. The arrangement proposed by the father would at least reduce that conflict because there would be no need at all for the parents to come into contact with each other at changeover.

8. These children are, in my view, not so young that it is necessary for them to come home and have to be fed and washed immediately after school on a Friday afternoon before spending time with their father. In accordance with the type of arrangement that is envisaged under the Act that both parents participate in parenting that wind down at the end of the week and Friday afternoon and assisting in their care would be something entirely suitable for a father to be undertaking. For that reason, in my view, the Friday afternoon agreed commencement time should, in fact, occur immediately after school and at school.

9. In relation to the Sunday afternoon once again I think there is a risk if the children are brought to the mother’s home that the level of conflict to which the children will be exposed will be increased and the parents are more likely to engage in less conflictual behaviour if they are in a public place.  It seems that because the father is picking the children up from school that the mother, in my view, is the one who should travel to pick the children up and that should be from the McDonald’s Family Restaurant closest to the father’s home and that is in Suburb D.

10. I indicate that I am not necessarily of the view that these orders are in fact the best interim or even final orders for the children because they are made on limited information. I accept also the compromise that both the parties have made in their positions in that regard.

11. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 March 2015.

Legal Associate: 

Date:  13 March 2015