ARDEN & ARDEN
[2011] FMCAfam 133
•22 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARDEN & ARDEN | [2011] FMCAfam 133 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the child – equal shared parental responsibility. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 |
| Applicant: | MS ARDEN |
| Respondent: | MR ARDEN |
| File Number: | SYC 7264/2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 February 2011 |
| Date of Last Submission: | 16 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Ms Hausman |
| Solicitors for the Respondent: | Gayle Meredith & Associates |
| Solicitor for the Independent Children’s Lawyer: | Ms Alex |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The applicant mother and the respondent father are to have equal shared parental responsibility for the children [X] born [in] 1994, [Y] born [in] 1996 and [Z] born [in] 2005.
The child [Z] is to live with the mother.
The child [Z] is to spend time with the father:
(a)For the first, second and third weekends of each month during school term time from 4.30 pm on Friday until 6.00 pm on Sunday provided that if the Monday after the Sunday is a public holiday then until 6.00 pm on the Monday;
(b)During the 2011 school holiday periods as agreed between the parties and in default of agreement:
(i)From 5.00 pm on 8 April until 8.30 am on 17 April 2011;
(ii)From 5.00 pm on 8 July until 8.30 am on 17 July 2011; and
(iii)From 5.00 pm on 23 September until 8.30 am on 2 October 2011;
(c)On the child’s birthday for a period of four (4) hours as agreed between the parties and in default of agreement between the hours of 4.00 pm and 8.00 pm; and
(d)From 5.00 pm on the day before Fathers’ Day to 5.00 pm on Fathers’ Day.
Notwithstanding any other Order the child [Z] is to spend time with the mother:
(a)From 5.00 pm on the day before Mothers’ Day to 5.00 pm on Mothers’ Day; and
(b)On the child’s birthday as agreed between the parties and in default of agreement for that period of time not being between the hours of 4.00 pm and 8.00 pm.
The father is to ensure that [Z] attend any children’s birthday parties to which the child has been invited during his time with the father provided that the mother provides notice to the father by email no later than forty eight (48) hours before the commencement of the father’s time with the child.
In order to implement the time that the child [Z] spends with his father the mother is to deliver him to the father’s residence at the commencement of the time and the father is to return the child to the mother at her residence or such other place as she may nominate.
The mother and the father are to ensure that the child [Z] continues to attend the [M] School.
The mother must authorise the Principal and staff of the [M] School to supply to the father at his expense copies of all school reports, school photographs, school counsellors’ notes, memoranda, school newsletters and any other information in relation to the child [Z] that the father may request from the school.
The mother and the father must:
(a)immediately notify the other party of any significant illness or medical condition or injury that involves any of the children requiring medical intervention; and
(b)provide to the other party and keep the other party informed of their respective emergency contact details including:
(i)their residential address;
(ii)their home telephone number;
(iii)their mobile telephone number; and
(iv)their email address.
IT IS NOTED that publication of this judgment under the pseudonym Arden & Arden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7264/2009
| MS ARDEN |
Applicant
And
| MR ARDEN |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for interim parenting orders relating to the parties’ three children, [X], [Y] and [Z]. There is to be a final hearing on 24th and 25th November 2011. A Family Report has been ordered. The children are independently represented.
The father has filed an Amended Response with a supporting affidavit, setting out the orders he seeks until the matter can be heard in full.
Background
The parties were married [in] 1989 and separated under the one roof on 21st March 2009.
The mother was born [in] 1968. She is 42 years old.
The father was born [in] 1983. He is aged 43.
There are four children of the marriage:
a)[W] was born [in] 1991;
b)[X] was born [in] 1994;
c)[Y] was born [in] 1996; and
d)[Z] was born [in] 2005.
The parties’ eldest daughter, [W], is an adult. [X] is now aged 17 years and [Y] is 14 years of age. The youngest child, [Z], is 5 years old.
On 18th July 2009 the mother moved out of the home with [Z].
The parties’ three daughters remain living with the father.
The mother has since remarried.
The mother commenced these proceedings by filing an application for property orders on 30th November 2009. The father filed a response on 15th January 2010 in which he sought parenting orders relating to [X], [Y] and [Z].
The mother filed an amended application on 28th January 2010, seeking an order that the parties should have equal shared parental responsibility for the three younger children.
The parties attended a Child Dispute Conference with a Family Consultant on 1st February 2010, where they agreed that the three daughters would continue to live with the father whilst [Z] would continue to live with the mother but spend time with the father as follows:
a)From 5.00 pm on Friday until 7.30 or 8.00 am on Sunday of the first week of each fortnight; and
b)From 5.00 pm on Thursday until 7.30 or 8.00 am on the Sunday of the second week.
The parties entered into consent orders on 4th March 2010, finalising the property issues between them and adjourning the parenting matters for six months.
On 6th September 2010, when it was apparent that the parenting matters were still in dispute, an order was made appointing an Independent Children’s Lawyer.
Orders sought
By a Minute of Order contained within her Summary of Argument Document, the mother seeks orders to this effect (summarised):
i)That the parties have equal shared parental responsibility for the children;
ii)That [Z] should live with her;
iii)That [Z] should spend time with the father:
· From after school on Friday to 8.30 am on Sunday in each week;
· On Fathers’ Day
·
From 8 to 17 April, 8 to 17 July and from 23 September to
2 October 2011 during the school holidays
· For four hours on the child’s birthday.
iv)That [Z] should spend time with the mother on Mothers’ Day;
v)That the father should ensure that the child attend birthday parties to which he has been invited;
vi)That changeover should take place by the mother delivering [Z] to the father’s residence and the father should return the child to the mother at the Baptist Church at [C], New South Wales;
vii)That the parties should ensure that the child continues to attend the [M] School and the father should be kept advised of all school reports and other information from the school; and
viii)The parties should notify each other of any illness or injury involving the children and of any changes to their emergency contact details including addresses and telephone numbers.
The father, by his Minute of Order handed up in Court, seeks interim orders that:
a)[Z] should live with the mother; and
b)That [Z] should live with him during the school term for three out of four weekends from 4.00 pm on Friday with the mother to deliver him to the father’s place of work or from 4.30 pm at the father’s residence until 6.00 pm on the Sunday when the father would return the child to the mother’s residence.
The father agrees with the orders sought by the mother in proposed Orders 1, 2, 4.1, 4.3. 5, 9 and 11 set out in her Summary of
Argument Document.
The Independent Children’s Lawyer told the Court that she supported Order 2 sought by the father providing that [Z] should live with the father for three out of four weekends from 4.00 or 4.30 on the Friday until 6.00 pm on the Sunday. She also supported Orders 1, 2, 4, 5, 6, 8 (as amended), 9 and 11 sought by the mother.
Areas of agreement
Clearly, there is agreement about:
a)equal shared parental responsibility;
b)that [Z] should continue to live with his mother;
c)Fathers’ Day;
d)[Z]’s birthday;
e)Mothers’ Day;
f)the father being able to receive all relevant information from [Z]’s school; and
g)the parties advising each other about:
i)any illness or injury sustained by any of the children; and
ii)any changes of emergency contact details including addresses and telephone numbers.
Those orders will be made without the need for further discussion, as they all appear to be reasonable and in the best interests of [Z] and, where applicable, the two girls.
Evidence
The mother relied on her affidavit sworn on 14th February 2011 in which she deposed that [Z] had commenced school at [M] School and appeared to have settled into school quite well. Both parents attended on the child’s first day and took photographs. The mother deposed that:
I am aware from my conversations with other parents that there a few children in [Z]’s class who have birthdays coming up in the next few weeks and I anticipate that [Z] will be invited to those parties.[1]
[1] Affidavit of Ms Arden 14.2.2011 at paragraph [10]
The mother set out in her affidavit that her time with her daughters remains “problematic” and [X] declined to spend time with her on her seventeenth birthday, which fell on [date omitted] 2011. She also deposed that:
21. From time to time I invite the girls to spend time with me and to join me for other activities. They do not do so. I take all steps open to me to be involved in their activities…
24. I am extremely concerned that the girls have become aligned with [Mr Arden] and that this may also occur with [Z].[2]
[2] Ibid at [21] and [24]
The mother also sets out in her affidavit that [Z] continues to spend time with the father each weekend from Friday afternoon until Sunday morning, when he is returned to her at the [C] Baptist Church. The mother and her present husband attend the Baptist Church each Sunday morning at 8.30 am in company with [Z]. She wishes to continue that arrangement, as the child is “very familiar and comfortable with our routine of meeting at [C] Baptist Church at [C] on Sunday mornings”.[3]
[3] Affidavit of Ms Arden 14.2.2011 at [25]
The father relied on his affidavit sworn or affirmed[4] on 4th February 2011. In that affidavit the father complains that although the parties came to an agreement about interim arrangements concerning [Z] at the Child Dispute Conference in February 2010:
[Ms Arden] complied with this agreement. [Z] continued to spend time with me each week from Friday afternoon to Sunday morning. [Ms Arden] refused to allow [Z] (to) stay with me on the alternate Thursdays as we had agreed.[5]
[4] The attestation clause indicates both
[5] Affidavit of Mr Arden 4.2.2011 at paragraph [4]
The father also deposed that:
a)
It is difficult for him to get [Z] to the [C] Baptist Church by
8.30 am on a Sunday as he usually does not wake until 7.30 or 8.00 am;[6]
b)The three girls have always been close to [Z] since his birth;[7]
c)Since the mother relocated to [M] the time that he and the girls have available to spend with [Z] has been “significantly reduced”;[8]
d)Prior to the parties’ separation [Z] rarely attended church;[9] and
e)He does not believe that [Z]’s relationship with his sisters and with the father should suffer because the mother has now embraced the Baptist faith.[10]
[6] Ibid at [11]
[7] Ibid at [18]
[8] Ibid at [22]
[9] Ibid at [25]
[10] Affidavit of Mr Arden 4.2.2011 at [26]
Submissions
The Independent Children’s Lawyer, Ms Alex, submitted that the children have a loving and strong bond and that [Z] needs to spend more time with his sisters. She did not agree with the mother’s contention that [Z] was at risk of being alienated from his mother and she supported the order sought by the father that would allow the child to spend a full weekend with the father, rather than being returned to the mother at 8.30 on the Sunday morning.
Counsel for the mother, Mr Levy, submitted that the mother was concerned about alienation. She was offering more time with [Z] to the father, including two out of three weekends during the school holidays.
However, the mother is a regular and strong member of the Baptist Church and the downside of the father’s proposal was that [Z] would only be able to go to church on one Sunday each month.
The mother had tried to persuade the father to engage in family therapy with the three girls but he had not done so. Again, whilst there had been an agreement at the Child Dispute Conference that the three girls would have dinner with their mother on Thursday evenings, that had never happened.
It was the mother’s view that there was a close and loving relationship between [Z] and his father and his sisters. The current regime was working, he submitted, so why should it be altered on an interim basis. The Court should not engage in experiments because there is a regime that has stood the test of time.
Ms Hausman of counsel, who appeared for the father, submitted that a large part of the mother’s case concerns the alienation of the three girls from their mother. When the mother left in 2009, she originally lived nearby to the girls and they saw each other regularly. However, the mother remarried and moved away, taking the girls’ young brother with her. Ms Hausman submitted that the girls had taken a position and needed to be assisted.
It was further submitted that:
·The current arrangement works for the mother but not necessarily for the father or the children
·The weekends that the mother offers to the father with [Z] are really only half weekends because the mother is only offering one full day, the Saturday
·There is no evidence that [Z]’s relationship with his mother has deteriorated
·The father suggests that the mother could deliver [Z] to the father’s place of work rather than having to go to his home at [K].
In reply, Mr Levy submitted that the mother was not trying to shorten the father’s time with [Z] and was in fact making a generous provision of holiday time. However, she was asking that [Z] be returned to her at 8.30 am on Sundays.
The applicable law
Section 60CA of the Family Law act sets out that in deciding whether to make a particular order in relation to a child, the Court must regard the child’s best interests as the paramount consideration.
In order to decided what is in a child’s best interests, the Court must consider:
a)the primary considerations in subsection 60CC(2) of the Act;
b)the additional considerations in subsection 60CC(3);
c)the extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent; and
d)where the children’s parents have separated, events that have happened and circumstances that have existed since the separation occurred.
I have done so in this case.
The Court must also consider the presumption in s.61DA of the Family Law Act that it is in children’s best interests for their parents to have equal shared parental responsibility for them, and consider whether that presumption should apply in the particular circumstances of the case (see Goode & Goode[11]).
[11] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
In this case, the applicant and the respondent have agreed to share parental responsibility equally.
Under the provisions of s.65DAA of the Act, where a parenting order provides that a child’s parents are to have equal shared parental responsibility for children, as is the case here, the Court must consider:
a)Whether the children spending equal time with each parent would be in the child’s best interests; and
b)Whether spending equal time with each parent is reasonably practicable.
I am not satisfied that it is reasonably practicable. This is a case where the three daughters, one of whom is now an adult, live with one parent and the other child, a much younger boy, lives with the other. The Court is only being asked to make orders in respect of the boy. The dynamics between the two daughters to whom this application applies and the mother are problematic at this stage.
Where a parenting order provides that a child’s parents are to have equal shared parental responsibility but the Court does not make an order for the child to spend equal time with each of the child’s parents, s.65DAA(2) requires the Court to consider whether:
a)Spending substantial and significant time with each parent would be in the child’s best interests; and
b)Whether it is reasonably practicable.
I have considered that requirement. No parenting orders other than equal shared parental responsibility are sought for either [X] or [Y]. The orders to be made for [Z] will, in my view, provide substantial and significant time with each parent.
Conclusions
This case largely concerns [Z], who is still only five years and five months old. [X] is now seventeen years old and will be nearly an adult by the time the application is heard on a final basis, in November this year. It is a matter for consideration whether any further parenting order will be appropriate for her in those circumstances.
[Y], of course, is rather younger, at fourteen years and two months old. She appears to be following a similar path to her two elder sisters in having little to do with her mother. Whilst this is regrettable, it is beyond the scope of an interim hearing and needs to be considered when the matter goes to a final hearing in November.
It appears that [Z] has a strong and loving relationship with his father and his three sisters. The photographs annexed to the father’s affidavit appear to support that contention insofar as [Z] and the girls are concerned, in any event. It is clearly in the children’s best interests for this relationship to continue.
I am not satisfied that the mother’s relationship with [Z] is not a strong and positive one. She appears to be doing what is required of a mother in this regard, with the possible exception of not giving consideration to [Z]’s need to spend more time with his sisters.
There is no evidence of any risk of harm to the child in the care of either parent. It is concerning, however, that the girls appear to be estranged from their mother, and the Independent Children’s Lawyer may well need to consider what steps to take to address this situation.
I am satisfied that orders should be made to give [Z] a longer time with his father and sisters on weekends, as the father and the Independent Children’s Lawyer submit. Regular attendance at the [C] Baptist Church may be something that the mother and her new husband enjoy, but there is no evidence that it is necessarily in [Z]’s best interests. Increased time with his three sisters on a weekend would appear to fit in more with [Z]’s best interests at this stage.
Some of the orders proposed are problematic. The mother’s proposed orders as to when [Z] would spend time with each parent on his birthday are contradictory. The proposed orders 4.3 and 5.2 provide that [Z] should spend:
a period of four hours on [Z]’s birthday by agreement between the parties and failing agreement then from 4pm until 8pm on his birthday.
The difficulty with that proposal is that if the parties do not agree about what time they spend with [Z] then they would spend the same four hours with him, from 4.00 pm until 8.00 pm. Surely, what is needed is a different period of time for each parent? Again, where will
[Z] spend the other twenty hours of his birthday?
I propose to order that, since [Z] lives with his mother, by consent, the father should have four hours with him and, in default of agreement, that four hours should be form 4.00 pm to 8.00 pm. The rest of the time he should spend with his mother, with whom he lives.
I propose to make the mother’s proposed order relating to [Z]’s attending birthday parties to which he is invited. Irksome though it may be to the father, children’s birthday parties come “thick and fast” in the first two or three years of a child’s school life and they are an important of a child’s socialisation when adjusting to life in the early years at primary school. This is well known in the family law jurisdiction and is a matter of common knowledge.
However, the proposed order states that the mother must “provide notice to the father within 48 hours of the commencement of his time with [Z]”. I do not consider that to be reasonable and it may be a typographical error. The mother, if that order were made, could send an email about a birthday party to the father at an hour’s notice, which would have the potential to disrupt plans that he and the child’s sisters had made. I consider that the father should be given 48 hours notice of such an arrangement.
I am reluctant to make an order about the mother delivering the child to the father at his place of employment. If she delivers [Z] to the father’s home, there may be an opportunity for her to see one or more of her daughters and engage in a positive interaction with them, especially as she will be bringing [Z] to spend time with them. The daughters need to see that their mother will make [Z] available to spend time with their father and themselves.
The parties have agreed that a Family Report should be prepared for the purpose of the final hearing.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 22 February 2011
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