Almy and Almy
[2008] FMCAfam 1505
•19 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
ALMY & ALMY [2008] FMCAfam 1505
FAMILY LAW – Parenting – meaningful relationship – each parent’s time with the child – changeover.
Family Law Act 1975
Applicant: MR ALMY
Respondent: MS ALMY
File Number: WOC 509 of 2007
Judgment of: Altobelli FM
Hearing date: 19 May 2008
Date of Last Submission: 19 May 2008
Delivered at: Sydney
Delivered on: 19 May 2008 REPRESENTATION
Counsel for the Applicant: Mr Moss
Solicitors for the Applicant: Maguire & McInerney Lawyers
Solicitor-Advocate for the Respondent: Mr Capner
Solicitors for the Respondent: Ray Capner Solicitor ORDERS
1. The Mother and Father have equal shared parental responsibility in relation to their children namely:
1.1 [X] born in 2000; and
1.2 [Y] born in 2003.
2.That each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare, development, parental responsibility of the children on the day to day basis during periods when the children are living with either of them.
3. That the children of the marriage live with the mother.
4.That the children spend time with the father as follows:
4.1 Week 1
In 2008, for the child [X] the father is to collect that child at the conclusion of school on Friday and return that child at the commencement of school Monday.
In the year 2008, the Child [Y] shall spend time with his father by the father collecting him from the mother’s home immediately prior to the father collecting [X] upon the conclusion of school on Friday until the Monday at the commencement of [X]’s school when following delivery by the father of [X] to her school the father shall then deliver [Y] to the mother’s home.
4.2 Week 2
In the year 2008, on Sunday at 5.00 pm the mother shall deliver both children to the father’s home and on the Tuesday the father shall deliver the child [X] for the commencement of her school and immediately thereafter shall deliver the child [Y] to his mother’s home.
In the year 2009, at the commencement of the first school term on Sunday at 5.00 pm the mother shall deliver both children to the father’s home and the children shall spend time with their father until he delivers them to their school at commencement time on Wednesday.
Commencing in the 2009 school year the father shall collect and return both children to and from their school.
4.3 School holidays
For the first half of each of the 3 shorter school vacation periods.
Subject to in the week that the children are living with/spending time with the other parent then unless that parent and the children are holidaying away from the highlands region then the children are to be with the other parent on the Wednesday of that week commencing from 5.00 pm Wednesday until 9.00 am Thursday; the parent the children not then living with/spending time with shall collect and return the children to the other parent.
4.4In respect of the Christmas school holiday period on a “week about basis” that the children shall spend 7 continuous days alternating with each parent.
Subject to in the week that the children are living with/spending time with the other parent then unless that parent and the children are holidaying away from the Highlands region then the children are to be with the other parent on the Wednesday of that week commencing from 5.00 pm Wednesday until 9.00 am Thursday; the parent the children not then living with/spending time with shall collect and return the children to the other parent.
4.5With the Father in the year 2007 and each odd numbered year from 5.00 pm Christmas Eve until 3.00 pm Christmas Day and thereafter with the Mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day.
4.6In 2008 and each even numbered year with the Mother from 5.00 pm Christmas Eve until 3.00 pm Christmas Day and thereafter with the Father from 3.00 pm Christmas Day until 3.00 pm Boxing Day.
4.7In the year 2009 and each odd numbered year with the father from Easter Saturday at 5.00 pm until Easter Sunday at 3.00 pm and thereafter with the Mother until 3.00 pm Easter Monday.
4.8In the year 2008 and each even numbered year with the Mother from Easter Saturday at 5.00 pm until Easter Sunday at 3.00 pm and thereafter with the Father until 3.00 pm Easter Monday.
4.9In 2008 and each even numbered year the children are to be with their father on their birthday commencing from 5.00 pm on the preceding day and with their mother from 5.30 pm until 8.30 pm on their birthday, AND in 2009 and each odd numbered year the children are to be with their mother from 5.00 pm on the preceding day and be with their father from 5.30 pm until 8.30 pm on their birthday.
4.10In respect of Mother’s Day and Father’s Day should the children not already be in the care of the parent on which that day is celebrated then they shall be with that parent commencing at 6.00 pm on the Saturday overnight until 8.00 pm Sunday. On Father’s Day the mother is to deliver and collect the children from and to the father and on Mother’s Day, the father is to deliver and collect the children to and from the mother.
4.11In the event that either parent is not able to care for the children in each of the above specified periods then the children shall be cared for by the other parent.
4.12That the father telephone each of the children each Tuesday and Thursday at 7.00 pm.
4.13That the mother telephone the children each Friday and Sunday at 7.00 pm.
Special Days
4.14That in respect of the Mother’s birthday (20th January) should the children be not already then in the care of the Mother to spend time with her from 8.00pm on the night before her birthday until 8.00 pm on the 21st January and the father to deliver and collect the children from and to the mother.
4.15That in respect of the Father’s birthday (12th September) should the children be not already in the care of the Father to spend time with him from 8.00 pm until 9.00 pm on his birthday until 9.00 pm on 13th September, the mother to collect and return the children to and from the father.
4.16Such further and other times and dates as agreed between the parties.
5.That the mother and father are to have equal shared parental responsibility for the children: in relation to the care, welfare, and development of a long term nature involving the children to include but not be limited to issues about:
5.1The education of the children both current and future;
5.2The children’s religious and cultural upbringing;
5.3The children’s health;
5.4The children’s names;
5.5Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
6.That the mother is to have responsibility for making decisions as to the children’s day to day care, welfare and development during periods when the children are living with her.
7.That the father is to have responsibility for making decisions as to the children’s day to day care, welfare and development during periods when the children are spending time with him.
8.That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:
8.1Any medical problems or illnesses suffered by the children whilst in each parent’s care;
8.2Any medications that have been prescribed for the children;
8.3Any specialist medical appointments with any medical doctors, psychologists, counsellors, or therapists regarding the children;
8.4Any significant social, school or religious functions which the children are to attend;
8.5The details of any school(s) attended by the children;
8.6The details of any sporting body(ies) that the children are involved in;
8.7The residential address of each parent and particulars of others who may reside with the children;
8.8Any other important matter relevant to the welfare of the children.
9.That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.
10.That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.
11.That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
12.That each parent is entitled to attend all events involving the children including, but not limited to:
12.1Sporting fixtures;
12.2Extra curricular activities that allow for parental attendance or participation;
12.3School functions and events that allow for parental attendance or participation.
AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
13.That both parties are restrained from making any change to the schooling arrangements in respect of either child without the consent of the other parent.
14.That during any telephone conversations between each parent and the children then the other parent and/or their partner will use their best endeavours not to be present or within the hearing of the children.
15.That both parties to refrain from making critical or derogatory remarks about the other parent or members of that parent’s family in the presence or within the hearing of any of the children and that both parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of either family in the presence or within the hearing of any of the children.
16.Pursuant to section 13C of the Family Law Act 1975 the parties must within fourteen days contact UNIFAM on (02) 9373 5500 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
17.A copy of the family report is to be provided to UNIFAM by the father’s solicitor within fourteen days.
18.The parties must attend the appointment at any reasonable location nominated by UNIFAM and complete the assessment.
19.If assessed as suitable and UNIFAM nominates counselling, mediation including child inclusive mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
20.The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
21.Pursuant to Section 65DA (2) and Section 62B, the particulars of the obligations 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 just 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 Almy & Almy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYWOC 509 of 2007
MR ALMY Applicant
And
MS ALMY Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
1.The matter before me relates to [X] and [Y]. The applicant is the children's father and the respondent is their mother. [X] was born in 2000 and is eight years old. [Y] was born in 2003 and he is four years old.
2.The parents have existing orders that were made on 15 August 2007. The applications that were filed indicate that both Mr and Ms Almy have actually come a very long way in terms of the dispute that they have had in relation to the children and in fact the issues that I had to decide today were very narrow and very specific.
3.The dispute is really about dividing the children's time. I think it is worth observing here that time means a very different thing for [X] and [Y] compared to what the parents experience it as. Adults in this Court seem to fight, often quite viciously, about dividing time between their children. You are not in this category, thankfully. But the point is that your children experience time in a completely different way. Quite frankly I do not think they would notice the difference between two nights and three nights in one week. I do not think they would notice the difference between a starting time and an ending time. What they notice is that they get to spend regular, predictable time with both parents. That is what counts for them. And having that opportunity to build what in the Family Law Act 1975 is called a "meaningful relationship" with both of you in the time that they have. But kids just do not count time in the same way as parents in this Court seem to actually litigate about time. So remember that and hopefully after today you can just put all of this behind you and just get on with the business of raising your kids together.
4.The issues before me were quite discrete. The evidence I had was actually quite substantial. For example, I had the benefit of the child dispute conference memorandum which is dated 29 April 2008 and which contains some observations made by Family Consultant O'Donohue, one of the Court's family consultants at Wollongong.
5.I also had a family report that was prepared by another of the Court's family consultants, Dr Julie Anne Greenfield and that report is dated 2 March 2008. It is a very comprehensive report and in my judgment I just specifically incorporate a number of paragraphs. For example; paragraph 64. Paragraph 64 says as follows:
Ms Almy is of the view that [X] is not coping with being away from her for four nights in a row. However, this is not strictly correct. [X] is not coping because her parents are in a high conflict situation. She is not coping with having to be the conduit for transferring emotionally charged messages between her hostile parents. When children are in the war zone between conflictual parents they show their distress in their behaviours. [X], who is a capable, responsible girl, an outstanding child by her school report, is showing her distress by regression to an earlier stage of child development. Separation anxiety is a manifestation of a stage of development of infants with their primary care giver or attachment figures. Her separation anxiety has mostly been evidenced in relation to her mother but to a lesser extent in relation to her father. It is her way of showing she is not feeling okay. She is feeling unsafe and unsupported because during the past year her parents, while dealing with their own issues, have at times been emotionally absent from her and have tasked her with being their go-between. Mr Almy, while not a psychologically minded person, seems to be able to see this more clearly than Ms Almy.
6.Paragraph 68:
Each of the parents impressed with the ability to adopt a child focus. Both parents are extremely concerned about [X]. However during the assessment they blamed each other for her distress. Each of the parents needs to take responsibility for their part in [X]'s distress in stead of blaming each other.
7.That report was very useful. I was presented with a minute of agreed parenting orders and subject to one amendment that I discussed with Mr Moss and with Mr Capner, that is the inclusion of the word, "equal" in the first line of order one; I make orders in terms of this minute of agreed proposed parenting orders. I have marked that document A, initialled it and dated it with today's date.
8.I was then presented with an amended minute of issues that contains the issues, the very specific issues that were raised for determination today.
9.
The first issue at item one talks about [Y] spending time with his father and talks about the collection and return arrangements. The father's proposal is contained in the left hand column of the issues document and the mother's proposal on the right. The essential difference between the two is not significant. Basically, the mother is saying that as part of the changeover she would like the opportunity to spend at least five minutes with [X]. The father says that that should not be a feature of the order, though implicit, I think in what in fact both
Mr Capner and Mr Moss were saying, is that this is something that might evolve over time.
10.The concern expressed by Mr Moss for the father however is that in a case like this where there is a high level of conflict, allowing this five minutes provides another opportunity for conflict. Dr Greenfield has described the situation as a war zone. My concern is that if I actually specify that [X] spend five minutes with her mother, what I would be doing is creating an opportunity for there to be a skirmish and I would rather that not happen.
11.The other thing is that even putting aside the conflict, I think the five minutes is probably more for [X]'s mother rather than [X]. I think actually [X] is at the stage - and I think Dr Greenfield agrees - where she can cope without this five minutes. So the order I am going to make is the order proposed by the father. But I say to Mr Almy just be sensitive about this. As time goes by both of you are going to be able to deal with whatever feelings you might have about the other, positive or negative. As the conflict subsides then this is something that you might want to take into account, Mr Almy. But the order I will make is the order proposed by the father.
12.Then in item two it talks about week two. The essential differences are about, in the first instance, who is responsible for collecting and return and in the second instance, when the order escalates to the third night in the other week. In the father's proposal, in 2009, it goes from Sunday to Wednesday. In the mother's proposal it goes from Sunday to Tuesday.
13.In Dr Greenfield's report, as I read it, she believes that [X] can certainly cope with the additional time but she would prefer there be the safety net of counselling of some sort to take place. I agree with her, but I also agree that there should be counselling. So I am going to make the order as proposed by the father but I am going to make a separate order that directs both parents to attend what is called the "Post Separation Assessment" with UNIFAM.
14.The next issue that was raised here was about who is responsible for delivering and collection. Now, I appreciate that there has been some difficulties in the past. But I think in a case like this where we're trying to look to the future and where you're both taking on, especially you Mr Almy, a significant responsibility in the shared care of these children, and in a case where you have agreed that there should be equal shared parental responsibility, I think there has to be a mutuality of obligation when it comes to the transport as well. So I am going to make an order again in terms of that proposed by the father so that in effect the mother delivers the children to the father's home and then the father delivers the children at the other end of the visit. So again, the father's orders in item two.
15.Item three deals with school holidays and I am informed that the parties have agreed to that.
16.Item four and five deals with special days. In item four I am going to adopt the mother's proposal for special days. There actually isn't a huge difference but I'm going to adopt the mother's proposal in item four, special days.
17.And in item five I am also going to adopt the mother's proposal except that I am just going to change who is responsible for delivery and collection. So that in order five, picking it up from the last two lines there, it will read:
The mother to deliver and collect the children to and from the father.
18.In other words, what I am doing is, on Mother's Day it is the father's responsibility to do the running around. But on Father's Day it is the mother's responsibility to do the running around. It is simply trying to make it as fair as possible under the circumstances. So that is the only difference to the mother's order in item five.
19.Item six is not opposed by the mother. I think, out of abundant caution, I will make that order.
20.Item seven is also not opposed, in fact by both parties, provided I insert the words, "to use their best endeavours" after the word, "partner" in line three. In other words, both parents are to use their best endeavours to ensure that nobody else is present when the children are having telephone conversations.
21.I am also going to make a few other orders just on my own initiative. And these are designed to cover the times when you two come into contact with each other as limited as hopefully they will be under these orders. You are not to denigrate each other. That is, you are not to put each other down in the presence of the children or at any other time allow anybody else to do that. You are not to discuss these proceedings or these orders in the presence of the children or allow anybody else to do that. Now, there is a hint in Dr Greenfield's report that the children have been caught up in this and that has got to stop.
22.It sounds like both Dr Greenfield and I were under the impression that the mother was working on Sundays. It turns out, I am informed today, that the mother is in fact working every second Sunday. Now, this has an important impact on the orders as proposed, because if I have made the orders simply as proposed with the time starting on 9.00 am in the week two of the cycle it would mean that the mother would be at home. That is to say, she would not be working and the children would be in the fathers care. I think it is important for the children to in fact spend, as I have indicated, time with both of you at a time when you are not stressed by having to work “quality time” some people call it on the weekends.
23.So Mr Almy I am going to make it 5.00 pm but on the basis that starting from 2009 you have got that extra time on the Wednesday anyway.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 2 April 2009
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