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…
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CaseChat Overview and Summary
In this case, the father, the applicant, and the mother, the respondent, were in dispute over the parenting arrangements for their daughter, X. The father sought a review of orders that had been made by the Senior Judicial Registrar, which he believed were not in X's best interests. The mother, on the other hand, believed that the orders were fair and should remain as they were. The matter was heard de novo before the court, which had to determine whether the orders made by the Senior Judicial Registrar were in the best interests of X, and if not, what orders should replace them.
The primary legal issue before the court was whether the orders made by the Senior Judicial Registrar were in X's best interests. The court had to consider the mandatory considerations set out in section 60CC(2) and (3) of the Family Law Act 1975 (Cth) and the objects and principles set out in section 60B of the Act. The court also had to consider the evidence provided by the parties, including the Single Expert Report by Clinical Psychologist Dr B.
After considering the evidence and arguments presented by both parties, the court found that the orders made by the Senior Judicial Registrar were not in X's best interests. The court was satisfied that X was very well adjusted socially and academically and had an excellent relationship with both her parents. The court also found that the father respected the mother as the primary caregiver of X and that the mother had not imposed any restrictions on X's time with the father. The court was of the view that X sharing time equally between the parents was in her best interests, with half of the term holidays and week-about in the summer holidays, allowing for time at Christmas with each parent. The court also ordered that the matter be listed for making of trial directions with a view to an early resolution.
In conclusion, the court made orders that X share time equally between the parents, with half of the term holidays and week-about in the summer holidays, allowing for time at Christmas with each parent. The court also ordered that the matter be listed for making of trial directions with a view to an early resolution. The court found that these orders were in X's best interests and would allow her to have quality time with both of her parents while maintaining her primary residence with the mother during the school terms.
The primary legal issue before the court was whether the orders made by the Senior Judicial Registrar were in X's best interests. The court had to consider the mandatory considerations set out in section 60CC(2) and (3) of the Family Law Act 1975 (Cth) and the objects and principles set out in section 60B of the Act. The court also had to consider the evidence provided by the parties, including the Single Expert Report by Clinical Psychologist Dr B.
After considering the evidence and arguments presented by both parties, the court found that the orders made by the Senior Judicial Registrar were not in X's best interests. The court was satisfied that X was very well adjusted socially and academically and had an excellent relationship with both her parents. The court also found that the father respected the mother as the primary caregiver of X and that the mother had not imposed any restrictions on X's time with the father. The court was of the view that X sharing time equally between the parents was in her best interests, with half of the term holidays and week-about in the summer holidays, allowing for time at Christmas with each parent. The court also ordered that the matter be listed for making of trial directions with a view to an early resolution.
In conclusion, the court made orders that X share time equally between the parents, with half of the term holidays and week-about in the summer holidays, allowing for time at Christmas with each parent. The court also ordered that the matter be listed for making of trial directions with a view to an early resolution. The court found that these orders were in X's best interests and would allow her to have quality time with both of her parents while maintaining her primary residence with the mother during the school terms.
Orders
Orders of the court
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Background
Background to the litigation
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).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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