Amini & Clark
[2023] FedCFamC1F 486
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Amini & Clark [2023] FedCFamC1F 486
File number(s): SYC 4835 of 2021 Judgment of: MCGUIRE J Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother to review a decision of a Senior Judicial Registrar in respect to interim parenting arrangements – where the child lives with the mother – where the mother seeks the father’s time with the child to be increased gradually –where the father wants overnight time fortnightly and significant time during school holidays – Orders that the child spend time with the father on an alternating cycle and for half of all school holidays – hearing de novo Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA and 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 14.07
Cases cited: Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 25 May 2023 Place: Melbourne Counsel for the Applicant: Ms Vincent Solicitor for the Applicant: Watts McCray Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 4835 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLARK
Applicant
AND: MR AMINI
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
22 June 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
BY CONSENT
1.That orders 4(b) and (c) of the orders dated 28 March 2023 be discharged and in lieu thereof:
(a)That X spend time with the parents for one half of each school holiday period following the conclusion of terms 1, 2 and 3 as follows:
(i)With the father for the second half and with the mother for the first half in 2023 and each alternate year thereafter; and
(ii)With the mother for the second half and with the father for the first half in 2024 and each alternate year thereafter.
Calculation of holiday periods:
2.The school holiday period will commence at 3pm on the last day children are required to attend school for the school term and conclude at 5.00pm on the day before children are due to attend school for the commencement of the next school term including any public holidays and pupil free days.
3.For the purpose of calculating the mid-point of the Terms 1, 2 and 3 holiday periods:
(a)If there are an even number of nights during the holiday period, changeover will occur at 7pm on the day which gives each parent the same number of nights with the child; or
(b)if there are an odd number of nights during the holiday period, changeover will occur at 7pm on the day which gives the parent spending the second half of the holiday period one extra night with the child.
4.That orders 5(f), 7 and 8 of the orders dated 28 March 2023 be discharged and in lieu thereof:
(a)In 2023 and each alternate year thereafter, and notwithstanding any other order, X spend time with each parent as follows:
(i)With the father from 3.00pm on 24 December until 3.00pm on 25 December;
(ii)with the mother form 3.00pm on 25 December until 7.00pm on 26 December
(b)In 2024 and each alternate year thereafter, and notwithstanding any other order, X spend time with each parent as follows:
(i)with the Mother from 3.00pm on 24 December until 3.00pm on 25 December
(ii)with the father from 3.00pm on 25 December until 7.00pm on 26 December.
5.That X’s time with the father be suspended on the mother’s birthday in 2023.
6.That in 2024, X shall be with the mother on the weekend which includes Easter and shall be with the father on the following weekend in lieu, from the conclusion of school Friday 5 April 2024 to 5.00pm Sunday 7 April 2024.
7.That the father will cause the child to call the mother via Facetime, and the father will do all things to facilitate the child speaking with the mother when he makes such call including that the child has a quiet and private environment free from distractions:
(a)Each Saturday between 6.00pm and 7.00pm that X is in the father’s care during school term time; and
(b)Each alternate day when X is in the father’s care during school holidays, commencing on the second day the child is in her Father’s care, and continuing each alternate day thereafter, between 6:00pm and 7:00pm on such days.
8.If the call pursuant to order 7 is unsuccessful, the Father shall send the Mother a text message advising her what time she can call back to speak to the child that night or the following day and the Father to do all things to facilitate the child speaking with the Mother when she calls back, including ensuring the child has a quiet and private environment free from distractions.
9.Other than as varied by these orders, the orders made 28 March 2023 will continue in full force and effect, subject to the question of the time X is to be in the Father’s care during the Term 4 2023 school holiday period.
10.That the mother’s application for review be dismissed.
11.That there be no order as to costs.
12.This matter be listed before a Judicial Registrar for making of trial directions before a Judge/Justice in Division 1 or 2 of the Federal Circuit and Family Court of Australia on a date and time to be advised, where it is the view of McGuire J that the matter is ready for trial and it is in the best interests of X for the matter to have an early resolution.
13.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Amini & Clark has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION
This is an Application for Review filed by the mother, Ms Clark, of a decision of the Senior Judicial Registrar made 28 March 2023, in respect of the parties’ one child X born 2013 (aged 9 years). Seemingly, the primary issue before the Senior Judicial Registrar was the extent of the child’s spend time arrangements with the father, particularly in regards to school holidays in which orders were made inter alia that:
3.Commencing 31 March 2023, the child spend time with the father during the school term as follows:
a.In Week One:
i.from the conclusion of school (or if the child does not attend school then 9am) until 7pm on Tuesday; and
ii.from the conclusion of school on Friday school (or if the child does not attend school then 9am) until 5pm on Sunday commencing
b.In Week Two
i.from the conclusion of school (or if the child does not attend school then 9am) until 7pm on Tuesday.
4.The child spend time with the father during the school holidays as follows:
a.during the Term 1 2023 school holidays:
i.from 7pm on Thursday 6 April 2023 until 7pm on Tuesday 11 April 2023;
ii.from 9am on Tuesday 18 April 2023 until 7pm on Wednesday 19 April 2023;
b.during the Term 2 2023 school holidays:
i.from 9am Tuesday 4 July 2023 until 7pm on Wednesday 5 July 2023;
ii.from 9am on Friday 7 July 2023 until 7pm on Thursday 13 July 2023;
c.during the Term 3 2023 school holidays:
i.from 9am on Tuesday 26 September 2023 until 7pm on Wednesday 27 September 2023;
ii.from 9am on Friday 29 September 2023 until 7pm on Friday 6 October 2023;
d.during the Term 4 2023 school holidays:
i.from 3pm on Friday 22 December 2023 to 3pm on Monday 25 December 2023;
ii.from 3pm on Monday 1 January 2024 to 3pm on Monday 8 January 2024; and
iii.from 3pm on Monday 15 January 2024 to 3pm on Monday 22 January 2024.
The mother’s application seeks orders to reduce the father’s time with the child, in circumstances where she argues that the increase in time should be more gradual and conservative. The father’s application proposes orders in identical terms to the Senior Judicial Registrar. There has been no order in relation to parental responsibility, nor do any of the parties seek as much in the interim.
When the matter came before me for hearing of the Review Application it was stood down, allowing the parties the opportunity to resolve the matter. I explained to the parties that whilst this matter presents its own unique complexities and nuances, it does not contain many of the traits typical of matters which come before this Court, rather these parents up until relatively recently communicated and cooperated effectively in respect of X. To the great credit of the parties, and what I assume were their best efforts, they were able to resolve the bulk of the issues, except for Order 4(d) of the Senior Judicial Registrar’s orders, particularly spend time on Christmas Eve, which was to be left for judicial determination.
It has been well established by Superior Courts that it is quality of time rather than the quantity that most interests the Court, McCall & Clark (2009) FLC 93-405. It is not within my scope to view a calendar and adjudicate individual days which are of interest to the parties. Upon being notified of this position, Counsel for the mother immediately withdrew the prospects of an agreement and reverted to her original position as set out in her application.
BACKGROUND
The mother is 45 years of age and it appears that she has not re-partnered. The father is 54 years of age and is currently engaged. He has an adult son from a previous relationship and a child with his fiancé, they may or may not live together. His fiancé, Ms C, has provided the Court with an affidavit.
The mother alleges that the parties commenced a relationship in early 2000, before separating in mid-2020. They were never married and never lived together. The child lived with the mother throughout this time.
Following separation, X continued to live with the mother and spent time with the father on an ad hoc basis as agreed between the parties, before commencing mediation, presumably to confer as to an increase in time for X with the father. The father instituted proceedings in this Court in July 2021 on an urgent basis, asserting that the mother was not abiding by an agreement reached at mediation between the parties and was withholding the child. The parties reengaged with mediation where interim consent orders were drafted but where the father alleges the mother reneged from that agreement in circumstances where his time with the child has been limited. This is the background which preluded the hearing before the Senior Judicial Registrar.
X has been spending regular unsupervised time with the father since interim orders were made in October 2021, with time each Tuesday and one overnight each fortnight on a weekend and continuing during school holidays.
Whilst each of the parties advocate some extra time for X with the father, the mother takes a more conservative position than does the father. Pursuant to the Senior Judicial Registrar’s orders now under review, X spends a block of five nights with the father during the most recent April 2023 school holidays. There is no evidence that this period was anything other than an enjoyable and successful for X.
The Court has the benefit of a Single Expert Report by Clinical Psychologist Dr B, dated 29 August 2022 (“the Report”). The parties have each filed lengthy affidavits.
RELEVANT LAW
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that, being an Application for Review, this hearing proceed as a hearing de novo.
The orders that I am to make are parenting orders. As such I am to have the child’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining those best interests, I am to reference the parties’ proposals and the probative evidence to the numerous mandatory considerations set out at section 60CC(2) and (3) of the Act, against the background and context of section 60B, which sets out the objects and principles as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Additionally, being as it is at an interim stage of the matter, I am guided by the well-established authority in Goode & Goode (2006) FLC 93-286, which observes that interim parenting applications are an abridged process where the scope of enquiry is restricted and the Court often cannot make findings of credit on disputed fact, rendering agreed facts, current circumstances and proposals and prior care arrangements as significant.
I informed the parties during the hearing and for their benefit I will repeat it, I am not bound to decide between their two proposals. Rather, I am bound by the Act to determine the best interests for the child as my paramount consideration, and I will make orders which align with those interests, regardless of any proposals.
MOTHER’S CASE
The mother relies on affidavit material and argues that the orders sought by the father do not reflect the best interests of the child in circumstances where time with the father should gradually increase given the father’s limited experience with overnight time and where he did not live with the mother throughout the relationship and was not the primary parent. This is reflected in her proposed orders which provide for overnight time, albeit on a less frequent basis as follows:
3.That during school terms, the child spend time with the Father on each alternate weekend from the conclusion of school on Friday (or if the child does not attend school that day then 9:00am) until 5:00pm on Sunday commencing 28 April 2023.
And crucially:
c) During the Term 4 2023 school holidays:
4.c.1From 3pm on Monday 1 January 2024 to 3pm on Saturday 6 January 2024; and
4.c.2From 3pm on Monday 15 January 2024 to 3pm on Saturday 20 January 2024
It was contended by the mother’s counsel during submissions that these proposed orders achieve a level of routine and consistency which is important for a child, whilst allowing time in January during the Term 4 2023/2024 school holidays, with the provisions to spend time during special occasions offsetting a lack of time during the December portion of that period.
The mother says that the school holiday orders of the Senior Judicial Registrar are structured so as to punctuate X’s time with her are hence not in the child’s best interests.
The mother denies withholding the child and cites emotional and financial abuse perpetuated on her by the father, but where these factors do not appear to be a central focus of her case.
FATHER’S CASE
The father maintains that his proposal in the form of the orders of the Senior Judicial Registrar are appropriate in circumstances where the child has been spending regular unsupervised and overnight time with him since late 2021. He contends that there is no unacceptable risk to the child and that current time between himself and the child has been successful, with the child expressing a desire to spend further time. He argues that there is no basis to restrict or limit the progression of overnight time, and orders should be made in terms of those made by the Senior Judicial Registrar.
Counsel for the father asserted that it is not a matter of consistency, and that the orders proposed manage the Term 4 2023/2024 School Holiday period in an equitable manner, which involves both parties.
The father adduces the Report of Dr B to support his claims and affidavit material filed by himself and his fiancé.
FINDINGS AND CONCLUSIONS:
X is now 9 years old. The evidence is consistent that she is very well adjusted socially and academically. She is settled in the primary care of her mother but has an excellent relationship with her father.
The documents before me suggest that the father respects the mother as primary carer of X and is complimentary of her parenting.
Despite some public notoriety of the father, the mother has not and does not, seek to impose any restrictions, such as supervision, on X’s time with the father. If only by implication, she too seems positive and complimentary in respect of the relationship between the father and X, and where the focus of her argument is on a more conservative graduation of time, where she says the father’s skills and experience of parenting are limited.
At [108] of the Report authored by Dr B in August 2022, Dr B perceptively reports X’s views as follows:
[X] has stated that she is happy with the arrangements as they are, and she enjoys seeing her father after school and spending every second Friday night with him. Clearly, since she is still very young, she is not aware of the wider issues surrounding her parents’ dispute but since she has always lived with her mother and spent time with her father relatively infrequently this arrangement makes sense to her.
I am satisfied generally as to the capacity of each of these good parents in their distinctive roles. The apparent success of the larger block of time in April is indicative of both the father’s capacity, and of X’s comfort with such longer periods.
The mother argues that the orders under review unreasonably punctuate X’s school holiday time with her. I agree. Where, generally speaking, school holidays offer a quality of time and options not available during the school term, there is some merit in the mother’s argument that she and X should be afforded those opportunities.
I am generally satisfied that the parents are now content with X’s time with the father to extend to full weekends fortnightly.
Taking into account X’s age, her social and academic successes, and the benefit to the father and X of school holiday time, I am of the view that X sharing time equally between the parents is in her best interests. This would be half of the term holidays and week-about in the summer holidays, allowing for time at Christmas with each parent, which can be easily and efficiently accommodated by the close proximity of their houses, and where this would allow X the experience and quality time with each of her parents whilst maintaining her primary residence with the mother during the school terms. Such orders would also allow the mother and X with the benefits of block periods of time uninterrupted by X’s time with the father as anticipate by the Senior Judicial Registrar’s orders.
This matter has been in the system for some considerable time. The parties have the benefit of an Expert Report. The parties each present as good parents. The ambit of their dispute seems limited and absent many of the usual issues which confront these Courts in parenting matters. I am of the view that the parents and X would benefit by a listing for making of trial directions with a view to an early resolution.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 June 2023
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