ALLMAN & ALLMAN
[2019] FCCA 909
•11 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLMAN & ALLMAN | [2019] FCCA 909 |
| Catchwords: FAMILY LAW – Parenting – interim parenting orders – where the Children live with the Mother – time spent between the Children and the Father – whether the Children should spend overnight midweek time with the Father – distance between the parties – interim application dismissed pending further evidence. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Eddington & Eddington (No 2) (2007) FLC 93-349 |
| Applicant: | MR ALLMAN |
| Respondent: | MS ALLMAN |
| File Number: | MLC 1730 of 2019 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 27 March 2019 |
| Date of Last Submission: | 27 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schmidt |
| Solicitors for the Applicant: | KCL Law |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | Peter Szabo Family Law |
ORDERS
The Father's application for the interim Orders in paragraph 4.1 of the Initiating Application filed on 20 February 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Allman & Allman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1730 of 2019
| MR ALLMAN |
Applicant
and
| MS ALLMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a decision in relation to interim parenting proceedings concerning two children, [X] ([X]), born … 2005 and [Y] ([Y]), born … 2012 (Children). The Applicant is the Father and the Respondent is the Mother of the Children.
Issues to be Determined
The parties have been unable to agree on the extent of time that the Father should spend with the Children during school term time, pending the final hearing of this proceeding. On 27 March 2019 interim consent orders were made ordering that the Children spend time and communicate with the Father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (Term Time Order).
The Father seeks the following interim order in lieu of the Term Time Order (Proposed Order):
The children live with the Father as follows:
a) during school term as follows:
i) In week 1, from the conclusion of school on Thursday (or 3:00pm on a non-school day) until the commencement of school on Friday (or 3:00pm on a non-school day); and
ii)In week 2, from the conclusion of school on Thursday (or 3:00pm on a non-school day) until the commencement of school on Monday (or 3:00pm on a non-school day)[1].
[1] Initiating Application, filed 20 February 2019, Interim Orders, at [4.1].
The Court has therefore been requested to determine whether the Term Time Order should be replaced with the Proposed Order.
Synopsis
I have determined that the Proposed Order should not replace the Term Time Order.
Background
The Father was born on … 1976 and is 42 years of age. He works as a tradesman. The Wife was born in Country A on … 1982 and is 37 years of age. The Mother came to Australia in 1995. She is self-employed in her own business “Business”, which she established in 2010[2].
[2] Mother's Affidavit, filed 27 March 2019, at [4].
The Mother and Father married on … 2004 and [X] was born on … 2005. The parties separated in 2007 and subsequently divorced. The Mother and Father then reconciled and [Y] was born on … 2012. The parties remarried again on … 2014, however they separated on a final basis on 27 July 2015. A Divorce Order was made on 30 December 2018[3].
[3] Father's Affidavit, filed 20.2.19, at [4].
After separation the parties lived together under the same roof until they sold their home in Suburb B in late 2015. In early 2016 the Father moved to live with his parents at their home in Suburb C and the Mother moved to rental accommodation in Suburb D.
After the Mother moved to Suburb D the Children spent every weekend with the Father, who would collect them on Friday and return them on Sunday. At that time the Father was living in Suburb B. This arrangement continued for about six months and then the parties agreed that the Children would spend alternate weekends with the Father and one night during the week. Initially the overnight during the week was on Wednesdays and then it was changed to Thursdays because it accommodated [X]'s training with the Sports team and [Y]’s sports[4].
[4] Mother's Affidavit, filed 27.3.19, at [12].
In 2017 the Mother enrolled [X] in Grade 6 at School E and [Y] was enrolled at kindergarten/childcare at the Suburb F Childcare Centre.
In … 2017 the Mother moved to Suburb G with the Children and then in … 2018 she moved to Suburb H[5], where she now lives with her partner Mr J. Mr J has two children from a previous relationship, who live with their mother and with whom he spends time with pursuant to Court Orders. The Father remains living in Suburb C with his parents.
[5] Loc.cit.
[X] is currently attending School K and is in year 8 and [Y] attends Suburb G Primary School and is in grade 1.
Prior to the Father commencing this proceeding there were no orders in place formalising the arrangements for the care of the Children. The Father deposed that up until late November 2018 the Children were spending five nights each fortnight during the school term with him, as well as school holidays and special occasions[6]. The Wife deposed that in 2018 the Children spent every second weekend with the Husband and overnight on Thursdays with him taking them to school in Suburb K and Suburb G from Suburb C in peak hour traffic (2018 Arrangements). The Wife describe 2018 as a “difficult” year and said that this arrangement did not work[7].
[6] Father's Affidavit, filed 20.2.19, at [6].
[7] Mother's Affidavit, filed 27.3.17, at [13].
The Father deposed that the last occasion that he spent time with the Children was on 4 January 2019 and since that time the Mother ceased to allow the Children to spend time with the Father and failed to provide a reason for not allowing him to see the Children[8].
[8] Father’s Affidavit, filed 20.2.19, at [8].
Procedural History
The Father commenced this proceeding for parenting orders on 20 February 2019. The Father sought an abridgment of time and that the Initiating Application be heard on an urgent basis, however the request for an urgent listing was refused by a Registrar of the Court.
In the Initiating Application the Father sought orders that pursuant to s.11F of the Family Law Act 1975 (Cth) (Act) the parties and the Children attend upon a Family Consultant of the Court for the purposes of the preparation of a parent and child issues assessment.
The Initiating Application also sought interim orders that until further order:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Father as follows:
i)During the school term in accordance with the Proposed Order.
ii)For one half of the three Victorian school term holidays as follows:
A.In odd years in the first half of the school holidays from the conclusion of school on the last day of term until 5:00 pm on the middle day of the school holiday period;
B.In even years in the second half of the school holidays from 5:00 pm on the middle day of the school holiday period until the commencement of the following school term;
iii)For one half of the long summer school holidays, on a week about basis with the Father’s time commencing at the conclusion of the last day of the school term;
iv)At specified times on special occasions, including Father’s Day, the Children’s birthdays, Christmas and New Year’s Eve.
c)The Children otherwise live with the Mother.
d)The Father’s time with the Children be suspended at specified times on Mother’s Day, the Children’s birthdays, the Mother’s birthday, and at Christmas.
e)Where changeovers coincide with school, the changeover take place at school. Otherwise changeovers take place as follows:
i)The Mother deliver the Children to the Father’s residence at the commencement of the Father’s time; and
ii)The Father deliver the Children to the Mother’s residence at the commencement of the Mother’s time.
f)Each party to facilitate telephone communication between the Children and the other party while the Children are in their care at times requested by the Children.
g)The parties advise each other of any medical health issues relating to the Children.
h)The parties notify each other of any changes to their telephone numbers, email addresses or residential addresses within 24 hours of any change.
i)The parties keep each other informed as soon as practicable of any significant injury or medical condition suffered or treatment undergone by the Children while they are in their respective care and the parties be each permitted to liaise directly with the Children’s treating medical practitioner, dental or other health specialist in relation to the Children’s health and welfare.
j)Each party be at liberty to attend the Children’s school and extracurricular activities that parents would ordinarily be invited to attend.
k)The parties be authorised to receive directly from the school, copies of all school notices, copies of school photographs and order forms and any information which is relevant to the Children’s education at the requesting party's expense.
l)The Mother pay the costs of and incidental to the Father’s application.
The final orders the Father seeks in the Initiating Application are that the parties have equal shared parental responsibility for the Children. The Father otherwise seeks to be excused from particularising the orders he seeks on a final basis pending the preparation of a report pursuant to s.11 of the Act.
The Initiating Application was supported by an affidavit filed by the Father on 20 February 2019 (Father's First Affidavit) and an affidavit filed on 27 March 2019 (Father's Second Affidavit). The Father also filed a Notice of Risk on 20 February 2019 which made no allegations of risk with respect to the Children.
The Wife filed a Response to Initiating Application on 27 March 2019 (Response). The Response sought interim orders in accordance with paragraph 17(f) to (l) above. No other interim orders were otherwise sought.
The Wife sought in the Response the following final orders:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Mother.
c)The Children spend time with the Father as follows:
i)Every second weekend from 29 March 2019 from after school on Friday until 4.00 pm on Sunday, or 7.00 pm Monday should the weekend be a long public holiday weekend, or from after school on Thursday for the AFL Grand Final long weekend;
ii)For half of the school term holidays by agreement and in default of agreement for the first half of the school term holidays in even numbered years and for the second half in odd numbered years;
iii)For the purposes of school term holidays, the commencement of the first half of the holidays will be from 5.00 pm (with collection of the Children from the Mother’s residence) on the last day of school to 7.00 pm on the middle Saturday, and for the second half of the holidays from 10.00 am on the middle Saturday to 7.00 pm on the Sunday prior to the resumption of school;
iv)During the long summer holiday for two non-consecutive weeks during January from 10.00 am on Saturday to 10.00 am the following Saturday with the parties to agree on which two weeks no later than the 15th of December in the previous year;
v)For the avoidance of doubt as to the application of subparagraph (i), the Father’s weekend time shall continue as if the school term or long summer holidays had not occurred;
vi)At specified times on special occasions, including Father’s Day, the Children’s birthdays, Christmas and Easter;
d)That for the purposes of changeovers:
i)All school changeovers shall occur at each child’s school should they attend different schools or the one school if they attend the same school;
ii)The Mother will deliver the Children to the Father’s residence at the commencement of the Father's time;
iii)The Father will deliver the Children to the Mother’s residence at the conclusion of his time;
iv)The Father will not approach the Mother’s car when delivering or collecting the Children and the Mother will text the Father on arrival alerting him to the Children’s arrival, and the Children will walk to the Father's front door from her car;
e)The Father not to denigrate or demean, or verbally harangue or abuse the Mother in the presence of the Children or any other person in any circumstances and be restrained from naming the Mother, or making any reference to her on social media;
f)The Father be restrained from sharing any photographs of himself and the Mother, and himself with the Children, by text or on any social media platform;
g)The Father take such steps as are necessary to ensure that members of his family do not attempt to contact the Children, by any means including by text phone or through social media including WhatsApp, whilst they are with the Mother;
h)The Father undertake and attend reputable parenting and men’s behaviour change courses;
i)The Father be restrained from attending any of the Children’s school or sporting activities until such time as he has undertaken and completed the courses referred to in subparagraph (h);
j)The Father be restrained from contacting the Children whilst they are with the Mother by any means including but not limited to texting and messaging [X];
k)In the event that either party wishes to travel overseas with the Children, notification of such travel including a detailed itinerary shall be provided to the other party not less than six weeks before the anticipated travel date.
The Mother’s Response was supported by an affidavit filed on 27 March 2019 (Mother’s Affidavit) and also a Notice of Risk filed the same day.
The matter first came before the Court in the Duty List on 27 March 2019. The parties had agreed upon interim consent orders and submitted a minute of consent orders (Minute of Consent Orders), which provided that until further order:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Mother.
c)The Children spend time and communicate with the Father:
i)In accordance with the Term Time Order;
ii)For half of all school term holidays by agreement but in default of agreement the second half;
iii)Otherwise as agreed in writing, including text message;
iv)By telephone and social media at all reasonable times but in any case no later than 10.00 pm;
d)For the purpose of weekend changeover the Father shall collect and return the Children to and from school and for school holiday changeover, the Mother shall deliver the Children to the Father’s residence and the Father shall return the Children to the Mother’s residence.
On 27 March 2019 I made the following Orders:
a)There be interim orders by consent in accordance with the Minute of Consent orders and the Respondent's solicitors engross the orders within 7 days (Consent Orders).
b)Pursuant to s.11F of the Act the parties and the Children attend upon a Family Consultant of the Court for the purposes of a Child Inclusive Conference on 15 July 2019.
c)The Family Consultant shall provide a written memorandum to the Court and to the parties as soon as practicable.
d)The matter be adjourned to 1 August 2019 at 9.30 am for mention.
e)The matter be listed for final hearing on 31 August 2020 at 10.00 am with an estimate of 2 days.
f)Trial directions.
The Proposals of the Parties
On 27 March 2019 the parties were unable to agree on the extent of time that the Father should spend with the Children during school term time, pending the final hearing of this matter.
The Father deposed in his Second Affidavit that the Mother had since 10 January 2019 “unilaterally suspended my time with the children”[9]. Since that time, with the assistance of his lawyers, the Father had been able to negotiate with the Mother to spend time with the Children on the following occasions:
a)Sunday 17 February 2019 from 10.00 am until 5.00 pm, with both Children.
b)On Sunday 3 March 2019 from 2.00 pm until 7.00 pm, with both Children.
c)On Wednesday 6 March 2019 from 5.00 pm until 11.00 pm, with [X] only.
d)From the conclusion of school on Friday 15 March 2019 until Monday morning 18 March 2019 with both Children[10].
[9] Father’s Second Affidavit, at [3].
[10] Loc.cit.
In these circumstances the Father was prepared to agree to the Minute of Consent Orders, to ensure that from 27 March 2019 there were orders in place enabling him to spend some time with the Children. The Father nevertheless continued to pursue his interim application for the Proposed Order to be able to spend more time with the Children during term time.
At the hearing in the Duty List on 27 March 2019 the submissions of Counsel for each of the parties focussed on the issue of the Father’s time with the Children during school term time and the interim orders that should be made. There were no submissions made in relation to orders for special occasion time or any of the other orders sought on an interim basis by the Father and the Mother. If these additional matters remain in dispute at the next mention date on 1 August 2019, the parties should address the Court specifically in submissions in relation to the Orders sought and file further affidavits, if considered appropriate. Otherwise if there is agreement as to these interim orders they may be made by consent orders signed by both parties and forwarded to chambers or at the next mention date on 1 August 2019.
Father’s Proposal
The Father pursues his application for the Proposed Order. Pursuant to the Term Time Order the Father spends three nights with the Children each alternate fortnight (Friday to Monday). Pursuant to the Proposed Order during term time, the Father would spend one week night (Thursday) with the Children each alternate week and four nights (Thursday to Sunday) with the Children each other alternate week. Therefore pursuant to the Proposed Order the Father would spend five nights each fortnight with the Children.
Mother’s Proposal
The Mother proposes that the Term Time Order remains in place on an interim basis.
The Law
The Court in determining this application must consider what orders are in the Children's best interests: s.60CA of the Act. In determining what is in the Children's best interests the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the Children. Each of those matters where relevant must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the Children's best interests.
The Court is not bound by the parties’ respective proposals (AMS v AIF[11] and U v U[12]).
[11] (1999) 199 CLR 160.
[12] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b ): s.60CC(2A).
The Full Court in Goode v Goode[13] mandated that the legislative pathway must be followed in all parenting cases and set out the procedural steps to be followed in interim proceedings[14]. It was noted by the Full Court that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place[15].
[13] (2006) 36 Fam LR 422.
[14] Ibid., 445, at [81]-[82].
[15] Ibid., 445, at [82].
In Marvel v Marvel[16] the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing[17].
[16] (2010) 43 Fam LR 348.
[17] Ibid., at [120].
In Keats & Keats[18] the Full Court held in respect of interim proceedings:
[. ..] that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected[19].
[18] [2016] FamCAFC 156.
[19] Ibid., at [9].
An interim hearing is therefore by its very nature a curtailed hearing. Evidence is limited and the matter is decided on the papers.
I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The Consent Orders provide that the Mother and the Father have equal shared parental responsibility for the Children. They also provide for the Children to spend time and communicate with the Father three nights each fortnight and for half of all school term holidays.
The Father's Initiating Application sought an order that the parties and the Children attend a s.11F Child Inclusive Conference[20]. An order was made for a non-urgent s.11F Child Inclusive Conference on the first available date, being 15 July 2019. It was also ordered that the Family Consultant provide a written memorandum (Section 11F Memorandum) to the Court and to the parties as soon as practicable. It is intended that the Section 11F Memorandum will assist the Court in determining the nature of the relationship that each of the Children has with each of the parents.
[20] Initiating Application, filed 20.2.19, Interim Orders, at [2].
It was not disputed at the hearing that the Children should have a meaningful relationship with both parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Each of the parents have made allegations about the other parent mistreating and causing psychological distress to the Children. The Father deposed that:
a)In mid-2017 [X] attempted to harm himself at school by cutting himself five times with a sharp object. The parents met with the school staff and it was arranged for [X] to attend upon the school psychologist. The Father attributed [X]'s behaviour to distress caused by the Mother moving him from Suburb B to Suburb D in 2016 and then in 2017 the Mother changing [X]'s school from School L to School E Primary School[21].
b)In 2018 [X] was tearful and upset and told him that the Mother had "belted" him because he did not want to eat the dinner that she had prepared[22].
[21] Father's First Affidavit, at [17] and [23].
[22] Ibid., at [24].
The Mother deposed that:
a)In relation to the Children “[...] I concede I do yell, scream and have slapped only as a last resort when nothing else has worked to get the children to do their homework, their chores and to stop playing PS4”[23].
b)The Husband has behaved violently and aggressively towards the Children, including “throwing [X] against a wall” and
[...] yelling at [Y] so hard she turned white with fear, telling the children he'll jump of (sic) the Westgate Bridge if he can't see them, and pumping them for information, they tell me, about what happens in our household[24].
c)In 2018 [X] stayed with the Father in December 2018 for about 3 weeks after an argument with the Mother. The Mother deposed that the Father would drop [X] at the Sports Centre at 5.30 am and from there [X] would walk to School K for school at 8.45 am. The Mother found Snapchats of [X]:
[…] all over the place before and after school including one in a girl's bedroom at 7:30pm which was very concerning. After school [X] had to make his way by tram to Flinders St Station and catch the train to Suburb M to be picked up by his father which he told me he found frightening. He had no structure, no routine and was permanently exhausted[25].
[23] Mother's Affidavit, at [11].
[24] Loc.cit.
[25] Ibid., at [15].
The additional considerations are set out in s.60CC(3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(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 weight it should give to the child's views;
[X] is currently aged 13 and [Y] is aged 6.
The Children’s views are relevant in relation to the extra-curricular activities that they enjoy and participate in. At present the Children’s independent views are not before the Court.
The Children at present have the following extra-curricular activities:
a)For [X]:
i)Monday and Wednesday morning before school for School K at Sports Centre and Wednesday evening sports training for under 18s from 8.00 pm to 9.30 pm at School N;
ii)Friday night working for pocket money at Sports Centre from 3.50 pm to 6.00 pm;
iii)Saturday sports games at Sports Centre usually between 1.00pm and 4.00 pm; and
iv)Sunday morning sports training at School N from 9.00 am to 11.00 am.
b)For [Y]:
i)Monday sports from 4.00 pm to 5.00 pm;
ii)Wednesday sports from 4.45 pm to 5.30 pm;
iii)Thursday sports from 4.45 pm to 5.30 pm; and
iv)Saturday sports from noon to 1.00 pm[26].
[26] Ibid., at [16].
The Father deposed that there had been a long-standing arrangement in place that [X] played sports in Suburb B and that [X] was the team captain. The season commenced on … 2019 and training is on Thursday nights. The Father deposed that he had received numerous text and voice messages from [X] expressing his disappointment about missing out on his sports training this season and wanting to know when he could resume training and play with the team[27].
[27] Father's Second Affidavit, at [10].
The Father expressed concerns that:
a)The Mother did not discuss enrolling the Children in these extra curricular activities or seek his prior agreement.
b)The Children have too many activities and in respect to [X], he does not have enough time for homework.
c)The extra-curricular activities are being prioritised over spending time with him[28].
[28] Ibid., at [8].
The Mother deposed that in 2018 [Y] found the travelling between Suburb H and Suburb C too much and that she:
[...] got to the stage where she would cry every Thursday saying she didn't want to stay overnight and preferred to see her father at weekends, and otherwise stay home with me and Mr J[29].
[29] Mother's Affidavit, at [13].
The Mother also deposed that [X] has expressed a "keen interest" in playing sports this season, which is close to his home and school[30]. The Mother also deposed that:
[The Husband] and I have had an informal arrangement for him to spend time with the children but it has become apparent that as the children have got older, they have their own choices, friends, and their commitments to school and their various activities which need to be founded in routine and certainty. Since this school year commenced there have been minimal disruptions and [X] especially is up to date with school work and they are no longer exhausted from lengthy midweek travel[31].
[30] Ibid., at [17].
[31] Ibid., at [16].
[X] is 13 years old and is old enough to be able to express a view about what sports he would like to play as extra-curricular activities. It is expected that the Section 11F Memorandum will provide information to the Court as to [X]'s views in relation to the extra-curricular activities he enjoys and where he would prefer to participate in them. It is also expected that the Section 11F Memorandum will also provide information as to which extra-curricular activities [Y] enjoys participating in.
The Section 11F Memorandum will also provide information to the Court about how the 2018 Arrangements worked from the Children’s perspective, particularly in relation to the amount of travelling between Suburb C and their schools and also their home in Suburb H. At present the Court only has the competing perspectives of the Mother and the Father.
Section 60CC(3)(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);
Each of the child's parents
As discussed in relation to s.60CC(2)(b) each of the parents have made allegations about the other mistreating and causing distress to the Children.
The Father has deposed that during the marriage the Mother was primarily responsible for caring for the Children and the Father worked full time supporting the family[32]. The Children have lived with the Mother since the parents separated and the former matrimonial home at Suburb B was sold in late 2015.
[32] Father's First Affidavit, at [16].
The Husband has deposed that:
The relationship between [the Mother] and [X] can be strained at times. They both have "strong" personalities and can clash leading to heated arguments. Whilst [the Mother] is a loving and caring mother, at times, I have been concerned that [the Mother] lacks insight into [X]'s needs, is quick to anger, lashes out at [X] and does not offer him the emotional support and guidance that he needs[33].
[33] Ibid., at [22].
As discussed in paragraph 43(c) above, in December 2018 [X] went to live with the Father for about three weeks after an argument with the Mother. The Mother has deposed that the argument was about [X] bullying [Y] and that [X] had been told to stop this type of behaviour many times[34].
[34] Mother's Affidavit, at [14].
The Father also deposed that [X] stayed with him in about July 2018 for four days after an argument with the Mother[35].
[35] Father's First Affidavit, at [26].
It is intended that the Section 11F Memorandum will assist the Court in determining the nature of the relationship that each of the Children has with each of the parents.
Other persons (including any grandparent or other relative of the child)
The Children live with the Mother and her partner Mr J in Suburb H. The Mother is engaged to Mr J [36]. The Mother deposed that the Children have an excellent relationship with Mr J, that they have family dinners and that they have regular family holidays together.
[36] Mother's Affidavit, at [7].
There is otherwise presently no other information concerning the Children’s relationship with Mr J before the Court.
Section 60CC(3)(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;
Participation in making decisions about major long-term issues in relation to the Children
The Mother and the Father have equal shared parental responsibility pursuant to the Consent Orders. The parties also seek equal shared parental responsibility as final orders.
The Father deposed that the Mother removed [X] from his School L and enrolled him at School E to commence grade 6 in 2017, without consulting him. The Father said that he nevertheless accepted the Mother's choice[37].
[37] Father's First Affidavit, at [18].
Opportunity to spend time and communicate with the Children
Subsequent to separation both parties have sought to spend time with and to communicate with the Children.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
For the purposes of this interim single issue decision this is not a relevant consideration.
Section 60CC(3)(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 other person (including any grandparent or other relative of the child) with whom he or she has been living;
Either of his or her parents
For the purposes of this interim single issue decision this is not a relevant consideration.
Any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
For the purposes of this interim single issue decision this is not a relevant consideration.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The Mother said that in 2018 the Children spent every second weekend with the Father and overnights on Thursdays, with the Father taking the Children to school in Suburb K and Suburb G from Suburb C in peak morning traffic on Friday morning, getting up at 5.00 am to do so.
The Mother deposed that the arrangements in 2018:
[. ..] did not work, and the children began to get very angry with me, as they became more and more exhausted, telling me I knew nothing, talked too much and that I was weird. [...] They missed homework (and never had time to do homework when with [the Father] because of the travel followed by bed) and school activities, they told me they didn't need an education nor to play sport[38].
[38] Mother's Affidavit, at [13].
The Mother deposed that since this school year commenced [X] was up-to-date with his schoolwork and the Children were no longer exhausted from lengthy midweek travel. She also said the relationships between herself and [X], and [X] and [Y] had “improved markedly”[39].
[39] Ibid., at [16].
The Mother deposed that the orders that she seeks are intended to ensure that the Children see their Father on a regular basis, whilst balancing their work and sport commitments and:
[...]not spending an inordinate amount of time in vehicles travelling between their home in Suburb H or their schools in Suburb G and Suburb K, and [the Father’s] residence in Suburb C[40].
[40] Ibid., at [8].
The Mother estimates that the time to travel between Suburb H and Suburb C in peak hour traffic can take “up to 3 hours each way”[41].
[41] Ibid., at [18].
The Father did not agree with the Mother’s assertions that the Children had not been coping with the distance between his residence in Suburb C and their schools in Suburb G and Suburb K. The Father deposed that the trip from Suburb C to the Children's schools in Suburb K typically takes 45 minutes to an hour each way, although occasionally the trip may take longer due to unforeseen events such as an accident on the freeway[42].
[42] Father's Second Affidavit, at [5].
The Father said that in 2018 on Thursday afternoons, after collecting the Children they had dinner with his parents and he helped the Children with their homework and reading and prepared them for school the next day[43]. He said that on Monday mornings when [X] had sports training at Sports Centre they left the house in Suburb C at 6.10 am and [X] ate his breakfast in the car en route. They arrived at Sports Centre at 7.00 am where [X] was dropped off and then the Father and [Y] went to a nearby cafe for breakfast. The Father then dropped [Y] off at school at about 8.30 am.
[43] Father’s First Affidavit, at [20].
The Father deposed that on Friday mornings they left the house in Suburb C at 7.30 am and he arrived at the Children's schools between 8.30 am and 8.45 am.
During submissions Counsel for both parties confirmed that the route the parties took to travel to and from Suburb C and the Children’s schools and their home in Suburb H, was the … Freeway and the … Freeway.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
To provide for the needs of the child, including the emotional and intellectual needs;
Each of the child’s parents
The Father has expressed the view in his affidavit material and also in his Counsel’s submissions, that the Children have too many activities and that these activities are being prioritised over the Children spending time with him[44]. In submissions by Counsel for the Father it was suggested that the Mother had deliberately enrolled the Children in these activities so that the Children did not spend time with the Father.
[44] Father's Second Affidavit, at [8].
By persisting with this application for the Proposed Order prior to receipt of the Section 11F Memorandum, the Father has demonstrated that he is unable to accept that there may be any substance in the Mother’s evidence that:
a)The Children became overtired with the 2018 Arrangements by reason of travelling long distances during the week[45].
b)[Y] would cry every Thursday and say that she did not want to stay overnight with the Father during the week[46].
c)Since the 2018 Arrangements ceased the relationships between herself and [X], and [X] and [Y] had “improved markedly”[47].
d)Since the commencement of school in 2019 when the 2018 arrangements ceased, [X] was up to date with his school work[48].
e)[X] has a “keen interest” in playing sports this season which is close to his home and school[49].
f)As the Children have got older they have their own choices, friends and commitments at school[50].
[45] Mother's Affidavit, at [13].
[46] Loc.cit.
[47] Ibid., at [16].
[48] Ibid., at [13].
[49] Ibid., at [17].
[50] Ibid., at [16].
The Court is concerned about each of these matters. The Father's failure to take a more measured approached to this proceeding and awaiting the receipt of the Section 11F Memorandum, indicates that he is not acting in a child focused manner.
Any other person (including any grandparent or other relative of the child)
This is not a relevant consideration.
Section 60CC(3)(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 that the court thinks are relevant;
[X] is aged 13 and [Y] is aged 6. [X] is in year 8 at School K and [Y] is in grade 1 at Suburb G Primary School. Any relevant factors have been discussed elsewhere in these reasons.
Section 60CC(3)(h) If the child is an Aboriginal child or a 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;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I refer to and adopt the discussion in relation to s. 60CC(2)(b), s.60CC(3)(b) and s.60CC(3)(f).
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I refer to the discussion in relation to s.60(2)(b).
The Mother has described her relationship with Father as being “tumultuous”, with the Father regularly verbally abusing her in front of the Children. In the Mother’s Affidavit she sets out examples of the sort of names the Father would call her in front of the Children[51].
[51] Ibid., at [9].
Section 60CC(3)(k) if a 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;
(i) – (v) above
The Father deposed that in 2007, when [X] was about two years of age an intervention order was made against him. At that time the Father was separated from the Mother and he had not seen [X] for about six months, as the Mother had not permitted him to do so. The Father said he went to the Mother’s house hoping to see [X] but instead he had an argument with Mother and she called the Police. The Police applied for an intervention order against the Father in favour of the Mother. The Father attended the hearing and was represented by Victoria Legal Aid, however the intervention order was made[52].
[52] Father’s First Affidavit, at [12].
The parties reconciled in 2008 during the period of the Intervention Order[53].
[53] Ibid., at [13].
There is no evidence of any further intervention orders being made with respect to either party.
Section 60CC(3)(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;
In this situation a request for interim orders has been made on the first return date of the proceeding in the Duty List. I have determined that it is preferable to wait until the Section 11F Memorandum is available to the Court before determining if any further interim orders are to be made in relation to the time the Father spends with the Children.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
All relevant facts and circumstances have been discussed elsewhere in this decision.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must 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 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.
The Consent Orders provide that the parties have equal shared parental responsibility for the Children. The Father and the Mother also seek final orders that they have equal shared parental responsibility for the Children.
Statutory Pathway
Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
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.
As there is an interim order for equal shared parental responsibility, I am now required to address the statutory pathway as set out in s.65DAA(1) – (5).
Equal Time with Both Parents
Firstly I will address the Children spending equal time with both parents[54]. Neither party proposes that there should be orders that the Children spend equal time with both parents. I determine that in the circumstances of this case on the information before the Court that equal time with both parents is not in the best interests of the Children.
[54] Section 65DAA(1).
Substantial and Significant Time
The Court therefore must consider whether the Children spending substantial and significant time with each of the parents is:
a)In the best interests of the children: s.65DAA(2)(c); and
b)Reasonably practicable: s.65DAA(2)(d).
I will now consider the matters in s.65DAA(2)(c) and (d).
Section 65DAA(2)(c) whether the child spending substantial and significant time with each of the parents would be in the best interests of the child;
I refer to and adopt the discussion in relation to s.60CC(3)(a), s.60CC(3)(b), s.60CC(3)(f) and s.60CC(3)(1).
Section 65DAA(2)(d) whether the child spending substantial and significant time with each of the parents is reasonably practicable;
In determining whether it is reasonably practicable for the Children to spend substantial and significant time with each of the parents, the Court must have regard to the matters in s.65DAA(5)(a) – (e).
In Ulster & Viney[55] the Full Court considered the meaning of the phrase “substantial and significant time”[56]. The Full Court said:
[87] In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
[88] Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66])[57].
[55] [2016] FamCAFC 133.
[56] Ibid., at [84]-[88].
[57] Ibid., [87]-[88], (Strickland, Ainslie-Wallace and Ryan JJ).
I will now address the matters required to be considered by s.65DAA(2)(d) in s.65DAA(5)(a) – (e).
Section 65DAA(5)(a) how far apart the parents live from each other;
I refer to the discussion in paragraphs 11 and 68 to 76.
Section 65AA(5)(b) the parents’ current and future capacity to implement an arrangement for the children spending substantial and significant time with each of the parents;
I refer to and adopt the discussion in in relation to s.60CC(3)(e) and Section 65DAA(3)(f).
Section 65DAA(5)(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;
The Father deposed that after separation:
[…] [The Mother] and I came to an amicable agreement about the parenting arrangements for the children[58].
[58] Father’s First Affidavit, at [19].
Since separation in late 2015 the parents have cooperated in implementing parenting arrangements for the Children. It has only been in the latter part of 2018 that a serious disagreement started to develop concerning the time that the Children should spend with the Father.
Section 65DAA(5)(d) the impact that an arrangement of that kind will have on the child;
I refer to and adopt the discussion in paragraphs 49 and s.60CC(3)(e).
Conclusion Substantial and Significant Time
The parents live a significant distance apart from each other and much of the travelling takes place in peak hour along the congested …. Freeways. Whilst the parents have historically had a good capacity to communicate with each other and resolve difficulties that have arisen in relation to parenting arrangements, this capacity broke down in late 2018.
The impact of substantial and significant time with the Father on the Children is in dispute between the parents and the Court expects it will be assisted by the Section 11F Memorandum in this regard.
The Proposed Order does not comply with the test as set out in Eddington & Eddington (No 2)[59] and does not comply with each sub section of s.65DAA(3).
[59] (2007) FLC 93-349, at 81,997.
I am therefore unable to conclude that:
a)The Children spending substantial and significant time with the Father would be in the best interests of the Children[60].
b)The Children spending substantial and significant time with the Father is reasonably practicable[61].
[60] Section 65DAA(2)(c).
[61] Section 65DAA(2)(d) and s.65DAA(3).
Consideration and Conclusion Proposed Order
In considering this interim decision I have adopted a conservative approach that is not likely to cause harm to the Children, as suggested by the Full Court for interim matters in Marvel v Marvel[62].
[62] (2010) 43 Fam LR 348, at [120].
I have followed the legislative pathway as require by Goode v Goode[63], to the extent that I have been able, given that this is an interim case and a single issue decision.
[63] (2006) 36 Fam LR 422, 445, at [81]-[82].
I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to extent that they are relevant. The application for the Proposed Order has been made prematurely. The Court does not have the benefit of the Section 11F Memorandum. For the reasons set out herein, I determine that the Proposed Order is not in the best interests of the Children as required by s.60CA of the Act.
The Term Time Order will therefore remain in force and I dismiss the Father's application for the Proposed Order.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Date: 11 April 2019
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