FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 3) [2023] FedCFamC1F 1129
File number(s): WOC 1226 of 2019 Judgment of: CURRAN J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PARENTING – Application in a Proceeding – Where an incident occurred leading to mother unilaterally ceasing time between the children and father – Events occurring shortly after final hearing while judgment reserved – Where father seeks interim orders that time be reinstated pending final determination – Where orders made for children to spend time with father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZL Cases cited: Goode & Goode (2006) FLC 93-296 Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 21 November 2023 Place: Sydney Counsel for the Applicant: Mr Cataldi (later withdrew) Solicitor for the Applicant: John Stonham & Co Lawyers (later withdrew) The Applicant: Litigant in Person Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Maguire & McInerney Lawyers Solicitor Advocate for the Independent Children’s Lawyer: Ms Dodson Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Nowra Family Law ORDERS
WOC 1226 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARENA
Applicant
AND: MS ARENA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The children, namely X born 2009 and Y born 2010, shall spend time with the father commencing on Sunday 26 November 2023, as follows:
(a)Each Tuesday and Thursday from the conclusion of school to 8.30pm;
(b)Each Sunday from 4.30pm to 8.30pm;
(c)From 8.00am to 1.00pm on Christmas Day 2023; and
(d)At all other times as agreed between the parties in writing.
2.The parents are to do all things necessary to changeover the children as follows:
(a)All changeovers that occur that the conclusion of a school day are to take place at the children’s school;
(b)For all other changeovers, the parents or their nominated person shall changeover the children at the Service Station, G Centre, Suburb H; and
(c)Each parent is to remain in their motor vehicle except in the case of an emergency.
3.The father and mother shall be restrained from speaking to the Children or in the presence or hearing of the Children or either of them in relation to:
(a)Any subject matter relating to these Court proceedings, except as to the recommencement of the children’s time with their father pursuant to these orders; and
(b)The future parenting arrangements of the Children.
4.Order 13 of the Minute of Consent Order “A” made on 5 June 2020 is discharged.
5.The mother shall facilitate X communicating with his father by Facetime or similar means at all reasonable times requested by X.
6.Order 1 made on 21 November 2023 be varied such that no later than 4:00pm on 13 December 2023, that father is to file and serve written submissions in support of his Application in a Proceeding filed 1 November 2023.
Note: The…
Continue reading Arena & Arena (No 3)
Sign in free to access the full text
- AGLC
- Arena & Arena (No 3) [2023] FedCFamC1F 1129
- Case
- [2023] FedCFamC1F 1129
- Decision Date
CaseChat Overview and Summary
The court determined that the ongoing conflict between the parents, particularly highlighted by the Father’s Day incident, had significant adverse effects on the children. Despite the father’s claims of punctuality, the inconsistency in returning the children and the resultant conflict were concerning. The court noted the mother's evidence regarding the impact of late returns on the children's routine, as well as the expert's observation that the children were fixated on timely exchanges. The court also took into account the father’s awareness of these issues and his failure to address them. Balancing these considerations, the court concluded that reinstating time with the father was in the best interests of the children, as it would help stabilise their routine and reduce the psychological harm caused by the ongoing conflict.
Accordingly, the court ordered that the children would spend time with the father under specific conditions aimed at minimising conflict and ensuring consistent exchanges. The orders also included provisions for communication between the children and their father and restrictions on the parents discussing the proceedings or future arrangements in the presence of the children. These measures were intended to protect the children from the ongoing parental conflict and to facilitate a more stable environment for their development. The court discharged an earlier order that had facilitated communication between the children and their father, replacing it with a more detailed arrangement. The father was also required to submit further written submissions by a specified date to support his application for a final determination of parenting arrangements.
Orders
Orders of the court
WOC 1226 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR ARENA
Applicant
AND:
MS ARENA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The children, namely X born 2009 and Y born 2010, shall spend time with the father commencing on Sunday 26 November 2023, as follows:
(a) Each Tuesday and Thursday from the conclusion of school to 8.30pm;
(b) Each Sunday from 4.30pm to 8.30pm;
(c) From 8.00am to 1.00pm on Christmas Day 2023; and
(d) At all other times as agreed between the parties in writing.
2. The parents are to do all things necessary to changeover the children as follows:
(a) All changeovers that occur that the conclusion of a school day are to take place at the children’s school;
(b) For all other changeovers, the parents or their nominated person shall changeover the children at the Service Station, G Centre, Suburb H; and
(c) Each parent is to remain in their motor vehicle except in the case of an emergency.
3. The father and mother shall be restrained from speaking to the Children or in the presence or hearing of the Children or either of them in relation to:
(a) Any subject matter relating to these Court proceedings, except as to the recommencement of the children’s time with their father pursuant to these orders; and
(b) The future parenting arrangements of the Children.
4. Order 13 of the Minute of Consent Order “A” made on 5 June 2020 is discharged.
5. The mother shall facilitate X communicating with his father by Facetime or similar means at all reasonable times requested by X.
6. Order 1 made on 21 November 2023 be varied such that no later than 4:00pm on 13 December 2023, that father is to file and serve written submissions in support of his Application in a Proceeding filed 1 November 2023.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The pressure and the ongoing, and indeed likely, increasing conflict between the parents has placed on Y is of particular significance in relation to the issue of psychological harm to Y, and that is one of the risks identified in the Family Report.Section 60CC(3) - additional considerations I have had regard to all of the s 60CC considerations, however those which are relevant to the competing proposals for interim orders for time are as follows: (a)s 60CC(3)(a): the views of the Y in particular; (b)s 60CC(3)(b): the nature of the relationship between the children and their parents; (c)s 60CC(3)(d): the likely effect of the changes in the children’s circumstances; (d)s 60CC(3)(f): the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs; and (e)s 60CC(3)(j) & (k): the allegations of family violence. THE FATHER’S DAY 2023 INCIDENT The catalyst for the current conflict followed time spent on Father’s Day this year. The mother reported that, immediately upon drop off, Y sent a text to her at 4.33pm saying “His off his chops.” The father’s evidence is that there was no issue between the boys in the car and he denied the report made by Y and X to the mother following changeover on the drive home (as set out by the mother in her affidavit at paragraphs 28 to 29). The father said there was no issue other than Y was a little upset because he did not attend Y’s sports game, but that his attitude improved after a discussion that they had. At the conclusion of Father’s Day, the children were returned to the mother. The father says approximately 10 minutes late, whilst the mother contended they were returned at 8.57pm, being almost half an hour late if it were an 8.30pm drop off. The Court Child Expert observed at paragraph 55 that:[Mr Arena] indicated that the children tend to become fixated on returning to their mother on time when with him. He said that they will remind him of the approaching time to exchange and remind him not to be late. [Mr Arena] was certain that he is usually on time or “not more than ten minutes late” at exchanges and that arrangement are more than 90 percent consistently adhered to. This author was unclear as to why the children would be worried about late exchanges if the parents had protected them from such disruptions and inconsistencies. Despite his assertion that he was not late to exchanges, he later gave an example that he dropped the children 45 minutes later than scheduled due to [Y’s] [sporting] commitments. The issue of the time for the boys to be retuned has been, and remains, a source of conflict between the parents. If the conflict was limited to the disagreement about whether it was an 8.00pm or 8.30pm return time, it may be of less concern. However, the father’s conduct in returning the boys later than 8.30pm the first time the children spent time with him after the conclusion of the trial is of note. It is concerning that: the father had been cross examined at length at the trial in respect of the dispute about time, and heard the mother’s evidence about the impact on the boys routine when returned late; he had heard that the mother believed the time to be returned was 8.00pm; he claimed to wish to improve communication with the mother with a view to seeking equal shared parental responsibility orders; and the father was aware of the comments of the Court Child Expert at paragraph 55 of the Family Report.