Atuk & Atuk
[2016] FamCA 283
•29 April 2016
FAMILY COURT OF AUSTRALIA
| ATUK & ATUK | [2016] FamCA 283 |
| FAMILY LAW – CHILDREN – Interim parenting – With whom the children live – With whom the children spend time – Best interests of the children – Principles for interim parenting applications – Meaningful relationships – Change in circumstances – Concerns in relation to the father’s parenting capacity – Children’s schooling |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Banks & Banks [2015] FamCAFC 36 |
| APPLICANT: | Ms Atuk |
| RESPONDENT: | Mr Atuk |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
| FILE NUMBER: | PAC | 4209 | of | 2014 |
| DATE DELIVERED: | 29 April 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 March 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | McAuley Hawach Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Friedlander |
| SOLICITOR FOR THE RESPONDENT: | Atila Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
Orders:
Pending Further Order:
That the Mother and Father have equal shared parental responsibility for the children J born …2003 and K born … 2011 (“the children”).
That the children live with the Mother.
That the children spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS and or email communication and in default of agreement as follows:
(a) As to the child K during school term each alternate weekend from after school Friday to 6.00pm Sunday or Monday if a long weekend commencing Friday 12 February 2016 for the current school term and thereafter commencing on the second weekend after the resumption of school term;
(b) As to the child J during school term each alternate weekend from after school Thursday to before school Monday or Tuesday if a long weekend commencing Friday 12 February 2016 for the current school term and thereafter commencing on the second weekend after the resumption of school term;
(c) As to both children during school term each alternate Thursday from after school Thursday to before school Friday commencing Thursday 4 February 2016 in the current school term and thereafter commencing the first Thursday after the resumption of school term;
(d) For one half of the end of term school holiday periods commencing at 9:00am on the first day of school holiday periods and concluding at 5:00pm in the midpoint Saturday of such holiday periods and for one half of the Christmas school holidays as agreed and if no agreement on a week about basis with the mother to have the first week.
That the Father’s time with the children be suspended on the Mother’s Day weekend from after school Friday to before school Monday provided always that the children shall if not otherwise spending time with the father spend the Father’s Day weekend with the Father from after school Friday to 6.00pm Sunday.
That the Mother be permitted to continue the enrolment of the child K in the Suburb C School and facilitate the child’s continuing attendance at that school pending further order.
That the Mother be permitted to continue the enrolment of the child J at the L School and facilitate the child’s continuing attendance at that school pending further order
That the Mother shall nominate the Father as the primary emergency contact in the event of any emergency relating to the child K in respect of which the Mother is unavailable.
That the mother and father do all things necessary to facilitate the non-resident parent having telephone contact with the children on each alternate day when the children or child is with the other parent between 6.00pm and 7.00pm or at such other time as is agreed in writing such writing to include email or SMS.
For the purposes of facilitating changeovers otherwise and as provided for below the parent who is to commence spending time with the children shall collect the children from the other parent and at the conclusion of that time the children shall be collected by the other parent from the residence of the parent with whom the children are spending time.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atuk & Atuk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4209 of 2014
| Ms Atuk |
Applicant
And
| Mr Atuk |
Respondent
REASONS FOR JUDGMENT
These are interim parenting proceedings in relation to the children J born in 2003 and K born in 2011. There is an older child not the subject of the application, M born in 1999 now 16 years of age.
The mother commenced proceedings on the 4 September 2014 seeking Airport Watch List orders in respect of the three children of the marriage. The mother on the 26 March 2015 filed an amended application seeking final parenting orders in relation to the three children of the marriage.
The mother filed an interim application seeking parenting orders on the 8 October 2015, following an incident referred to below.
The father filed his Response to that application on the 4 December 2015 and a further Response on the 15 March 2016.
The interim parenting proceedings were before the Court on the 2 February 2016 in the context of the first day LAT hearing following release of the Child Responsive Program Memorandum to the parties in late December 2015.
The interim parenting issue was adjourned for hearing to the 16 March 2016 with the parties agreeing on the 2 February 2016 to “temporary interim” orders to hold the matter over to the hearing. Relevantly, orders were made as follows:
IT IS ORDERED BY CONSENT:
2. Each parent is restrained from:
a. Making any negative remarks about the other parent or members of that parent’s family to the children or in the presence or hearing of the children;
b. Discussing these proceedings or any issues in dispute between the parties with the children or in the presence or hearing of the children;
c. Physically disciplining the children;
d. Using the children or any of them as messenger to facilitate communication between the parties.
3. Each parent is to use his or her best endeavours to ensure that no party:
a. Speak negatively about the other parent or member of that parent’s family to the children or in the presence or hearing of the children; and
b. Discuss these proceedings or any issues in dispute between the parents with the children or in the presence or hearing of the children.
4. For the purposes of facilitating changeovers otherwise and as provided for below the parent who is to commence spending time with the children shall collect the children from the other parent and at the conclusion of that time the children shall be collected by the other parent from the residence of the parent with whom the children are spending time.
PENDING FURTHER ORDER IT IS FURTHER ORDERED THAT:
5. That the Mother and Father have equal shared parental responsibility for the children [J] born … 2003 and [K] born … 2011 (“the children”).
6. That the children live with the Mother.
7. That the children spend time with the Father as agreed between the Mother and Father in writing with such writing to include SMS and or email communication and in default of agreement as follows:
a. During school term each alternate weekend from after school Friday to before school Monday or Tuesday if a long weekend commencing Friday 12 February 2016 for the current school term and thereafter commencing on the second weekend after the resumption of school term;
b. During school term each alternate Thursday from after school Thursday to before school Friday commencing Thursday 4 February 2016 in the current school term and thereafter commencing the first Thursday after the resumption of school term;
c. For one half of the end of term school holiday periods commencing at 9:00am on the first day of school holiday periods and concluding at 5:00pm in the midpoint Saturday of such holiday periods.
8. The Father’s time with the children be suspended on the Mother’s Day weekend from after school Friday to before school Monday provided always that the children shall spend the Father’s Day weekend with the Father from after school Friday to before school Monday.
9. The Mother be permitted to enrol the child [K] in the [Suburb C School] forthwith and facilitate the child’s continuing attendance at that school pending further order.
10. That the Mother shall nominate the Father as the primary emergency contact in the event of any emergency relating to the child [K] in respect of which the Mother is unavailable.
11. The Father return the child [K] to the Mother by no later than 5:00pm today by delivering the child to the Mother at her residence and in respect of this order leave is granted to the Mother to relist on short notice by communication with the Associate in chambers.
IT IS FURTHER ORDERED THAT:
12. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report…
19. The matter is adjourned to Wednesday 16 March 2016 at 10:00am for a further Case Management hearing or interim hearing if necessary.
20. Each of the parties file and serve any further affidavit material to be relied upon by no later than Friday 11 March 2016.
Context
The husband and wife married in Country D in 1998. Following the marriage the wife moved to Australia from Country D in 1999 to live with the husband. The husband and wife separated in late April 2014.
There are three children of the marriage. The eldest, M is presently 16 years of age and resides with the husband and spends no time with the wife. He has left school and is apprenticed. The younger two children aged nearly 13 and nearly five reside primarily with the wife.
As referred to above interim parenting orders were made on 2 February 2016 in relation to the two younger children with the husband and wife to have equal shared parental responsibility, the children to live with the mother and the children to spend time with the father as agreed or in default as per the arrangements referred to.
The mother is in contract employment as a child daycare worker. The father has chosen to stop full time employment and care for his elderly mother whilst receiving a disability support pension.
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”), having met the subject children, supported an arrangement whereby the existing interim orders remained in place pending final hearing.
The mother’s case
The mother relied on her:
a)Application in a Case filed 8 October 2015,
b)Application in a Case filed 2 February 2016 (as to K’s schooling),
c)Affidavit filed 8 October 2015,
d)Affidavit filed 2 February 2016.
The mother’s proposal was that the existing interim arrangements remain in place.
The mother asserts that after separation the children lived with her and spent from Friday afternoon until Monday morning with the Father.
On 18 September 2015 the father removed the child K from the mother’s care. The child was returned to the mother’s care on the 6 October 2015.
Thereafter the child did not spend time with the father until after the family consultant’s interviews in December 2015.
The mother enrolled the child K in the Suburb C School that being nearby to her residence. The child commenced at that school in the 2016 academic year. The father objected and proposed Suburb C School that is nearby to his residence.
The father has paid little child support since separation, choosing to cease full time employment in late 2014. The mother has been paying school fees for the child J at N School without contribution from the father. The child now attends the L School.
The father’s case
The father relied on his:
a)Response to application in a case filed 4 December 2015,
b)Further Response to application in a case filed 15 March 2016,
c)Affidavit filed 4 December 2015,
d)Affidavit filed 14 March 2016
The father proposed that:
a)That the subject children live with him,
b)That the children spend time with the mother each week during school term from after school Friday to 9am Sunday and half school holidays.
c)That the child K be enrolled at the Suburb C Public School,
d)Various other specific issues orders as to changeovers, high school enrolment for the child J, provision of school information, liberal phone contact, the provision of a mental health report by the mother after “psychological evaluation”, the sharing of the religious holiday.
The father makes many historical allegations as to the mother’s care of the subject children and of her conduct in relation to them. The Department of Family and Community Services became engaged after what appears to be notifications by the father in relation to the child M who now lives with the father and is in employment. The Department for the reasons set out in the reports attached to the father’s affidavit took no action.
The father’s evidence reveals a significantly conflictual relationship between he and the mother with the father willing to engage the child M in legal proceedings against the mother’s father in relation to recovery of goods and an apprehended domestic violence order. More recently he has facilitated the child M commencing legal proceedings against the mother over an issue as to the alleged use by her of certain trust funds asserted to be those of the child. Needless to say the relationship between the mother and the child is strained.
The father asserts that the mother has a significant medical disability. That assertion is not supported by the mother’s general practitioner notes (Exh C) tendered by the father. Indeed they indicate the circumstances of upset within the home and the mother’s allegations as to the father’s significant gambling before separation.
The Family Consultant’s Memorandum
The parties and the three children of the marriage attended upon a family consultant on 17 December 2015 for the purposes of a preparation of a Child Responsive Program Memorandum (Exh B).
The Memorandum recommended the appointment of an ICL, that order being made on 13 January 2016.
At the time of the Memorandum the eldest child was residing with the father and the younger children residing with the mother. The younger children were spending time with the father each week from after-school Friday until Monday.
The eldest child M presented to the family consultant as “reserved and disinterested in being interviewed or involved in the process”. It is apparent that the child is significantly aligned with the father after an incident between him and the maternal grandfather. Without consulting the mother the father had arranged for the child to leave school and commence an apprenticeship.
The child J presented as a “friendly mature and articulate boy”. J reported to the family consultant that he felt that he was somewhat in the middle because his older brother was not spending time with the mother and as at the time of the interviews his younger brother was not spending time with the father. J expressed a clear wish for arrangements to “stay as they are, but he also wants to spend some weekend time with the mother”. The child suggested perhaps eight nights per fortnight with the mother and six nights with the father provided he had weekend time with both parents.
Notwithstanding the father’s allegations J reported that he did not find the mother to become angry for no reason or hit or yell. He said he had no worries about physical discipline in either household.
The youngest child K presented as a “confident, outgoing and friendly boy”. It appears that the father had engaged the child in the dispute with the child conscious of the father’s views as to shared care. The child also reported that he had told the father not to do “bad things again” referring to him being retained by the father. The child reported that he was not scared of either of his parents and liked both of their houses. In evaluation the family consultant was of the view that given the child’s age his arrangements may need to be different to that of his brothers
Both parties made allegations one against the other to the family consultant and if necessary those allegations will need to be tested at a final hearing.
The father asserted to the family consultant that the mother had been diagnosed at O Hospital with bipolar disorder. The father adduced no evidence at the interim hearing to support this contention and indeed the mother’s general practitioner notes refute any such suggestion.
The mother expressed concern about the children being returned by the father directly to school after the weekend as it had been reported to her by the school that when the children had arrived the uniform was dirty and they did not have lunch. She had concerns that if they were being cared for by the paternal grandmother she would have difficulty preparing the children to school due to her age and medical condition. This contention seems to be supported by the father’s assertion that he is required to be his mother’s disability carer.
Concerningly the father informed the family consultant that he would be taking the three children home with him at the conclusion of interviews. The father was advised by the consultant that this may not be in the children’s best interests yet he repeated his intentions to the family consultant several times.
The family consultant reports that the parties have poor communication and usually communicate via text message.
In evaluation the family consultant repeated her concerns that the father may retain the children in his care or seek to discuss the children’s interviews with them. The family consultant identified significant risk issues regarding coercive and controlling family violence, influencing the children and not supporting the children’s relationship with the other parent. The consultant was of the view that the father had sought to influence the children through telephoning them while they were in childcare and in interview. The family consultant considered such conduct highly inappropriate and concerning as it indicates an inability to prioritise the children’s needs above his own and to act in their best interest.
Interim Parenting
In Marvel & Marvel (No. 2)[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court, discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
122. Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s.60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CCfactor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
…
52. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.
THE LAW:
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode[2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(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).
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
e)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)],
f)in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
g)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)]
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
Best Interests of the Children:
The Primary Considerations: s 60CC(2)
The primary considerations are:
h)the benefit to the child of having a meaningful relationship with both of the child's parents; and
i)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski & Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The subject children are now reasonably settled in circumstances whereby their mother is their primary carer and they spend time with their father. There are concerns expressed by the family consultant that the father may seek to align the children with him. Certainly his conduct in the past is supportive of that concern. The children need certainty as to the time they spend with each of their parents and as opined by the family consultant arrangements for the youngest child K who is almost five years of age may need to be different to those for the child J who is almost 13 years of age. A continuation of the mother as the children’s primary carer will be important and valuable to the children.
The father needs to be aware of the concerns as to his conduct in relation to the children. It is clear that he has had a significant role in their lives and that a continuation of their relationship with their father will be significant and valuable for the children.
Section 60CC(2)(b) – need to protect.
This consideration arises from the father’s allegations as to the mother’s conduct in relation to the children. Objective evidence is indicative of the father’s assertions being made manipulatively for his own purpose, reflecting the family consultant’s concerns that he places his own needs over that of the children. The fathers expressed concerns as to the mother’s mental health are simply not supported by the evidence.
It is important that arrangements put in place reflect the concern expressed by the family consultant. That can be addressed by the father’s time with the children being specifically defined and with the mother and father if appropriate being able to agree as to other time or occasions that the children will spend with the father.
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
The child J has expressed views in the context of the family consultant’s Memorandum. It is clear that he sees himself primarily residing with the mother and spending weekend time with each parent. The child K is young and no significant weight would be given to his views if expressed. It is concerning that the child has reflected poorly on his father’s conduct in retaining him for a period. However the child appears to enjoy time with his father.
Both children have significant relationships with both the mother and father and it is important that those relationships continue. The children have an establish relationship with the paternal grandmother who was part of their household until the parties’ separation. J perceives her as somewhat argumentative and the ongoing relationship between her and the children must be seen in the context of her poor health such as would require the father to cease employment and assume the primary role as her disability carer. It would certainly be inappropriate if the children were left in the care of the paternal grandmother for any extended period.
The history of the parents’ engagement with the children during cohabitation is not much in dispute. They both had a significant involvement subject to the exigencies of employment. Post separation their engagement with the children has varied in the circumstances discussed above.
During cohabitation both parties were responsible for the maintenance of the children. Post separation that burden has fallen most substantially upon the mother by reason of the father’s decision to cease full-time employment and assume the obligation to care for his elderly mother. It is unlikely the mother will receive more than token support for the children from the father in the foreseeable future.
The father proposes a significant change in the present circumstances of the subject children. He proposes that the children reside primarily with him and spend weekend time with the mother. That arrangement is not in accordance with the wishes of the child J who indicated to the family consultant that if arrangements were not to his liking he would simply “just leave” as his parents live locally. The children’s circumstances post separation had not settled until such time as a temporary arrangement was put in place on 2 February 2016. Another change in the children’s circumstances would be unnecessarily disruptive particular where there will be a final determination as to parenting arrangements at final hearing.
There is no practical difficulty and expense in the children spending time with or communicating with each of the parents by reason of the close proximity in which the parents reside. Telephone contact with each parent can be a matter for the child J to determine himself. However the level of conflict between the parties is suggestive of an order for telephone contact between the child K and the parents being appropriate.
An assessment of the father’s parental capacity is clouded by his conduct post separation particularly as reflected in the family consultant’s Memorandum. There must be some misgivings as to his capacity long-term to provide for the children’s needs particularly their emotional and intellectual needs; however that assessment will await a final hearing. The father makes allegations as to the mother’s capacity to parent by reason of her conduct in relation to the children and, as he asserts, her mental health issues. There is no evidence before the Court supportive of those concerns such that would give rise to the mother being unable to properly provide for the needs of the children including their emotional and intellectual needs.
The parents continue to have a conflictual relationship and as such present with poor attitudes to the children and their responsibilities of parenting. It is hoped that the settlement of interim arrangements will facilitate better communication and some amelioration in their conflictual relationship.
There are assertions as to violence and adverse conduct in the parties’ relationship. Both parties have differing versions that are unable to be resolved on an interim basis.
There was an issue between the child M and the paternal grandfather Mr P that led to the child moving to live with the father. A final Apprehended Domestic Violence Order was procured on behalf of the child, peculiarly for the protection of the child and the father for a period of two years from 26 November 2015. Ancillary to that order was an order addressed to the paternal grandfather permitting the child and the father to recover personal property left by them at presumably the mother’s residence post separation. There is some suggestion that the paternal grandfather who at the time was visiting from overseas has now returned overseas
The maternal grandmother for reasons unknown sought an apprehended domestic violence order against the mother shortly after separation. It appears that the application for the Apprehended Domestic Violence Order was dismissed on 22 August 2014 at Suburb L Local Court upon certain undertakings being given. The nature of those undertakings is not clear.
These are interim proceedings and absent agreement the question of the children’s parenting arrangements will proceed to a final determination.
Discussion – Schooling
The question of children’s schooling was considered by the Full Court of the Family Court in Re G: Children’s Schooling [2000] FamCA 462. The Full Court in re-exercising the discretion proceeded on the basis that (at [65]):
… Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.
Cronin J in Kirkland & Granger [2007] FamCA 1471 said at [60]:
There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step in to their shoes. The Act gives no guidance as to how that decision making process is to occur save that any decision must be in the best interests of the child. Section 65D (1) says that the court may make such parenting order as it thinks proper.
Young J in Raymond & Harold [2009] FamCA 155 said at [204]:
… There are many reported decisions of this court dealing with the determination of the appropriate school, the most often cited of which is the decision of the Full Court in Re G: Children’s Schooling [2000] FamCA 462 where the various factors considered by that court on the schooling issue included:
othe wishes of the child, where appropriate;
oany prior agreement in relation to schooling;
oany change to the existing arrangements;
oany anxiety which the child may experience as a result of changing peer groups;
othe views of the parents about the aspect of change upon the a child;
othe travel time to school;
othe costs of education;
oany particulate issue that may have a real impact upon the child and his immediate schooling and social environment
The above list of matters are not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child.
The present issue as to schooling is raised on an interim basis without the opportunity of contested and, if appropriate, expert evidence as to the educational requirements and educational opportunities offered to the children by the school’s proposed by each of the parents.
The parties are at issue in relation to the school to be attended by the child K. The child has commenced attendance at the Suburb C School which is proximate to the mother’s residence and also reasonably proximate to the father’s residence. The child having commenced attendance and there being no good reason espoused by the father other than his own personal convenience or his perception as to the mothers inconvenience for a change in the child’s school pending final hearing no such order will be made. The matter can await final determination at hearing where there is appropriate and relevant evidence adduced.
The father expresses concern that the child J is now attending an foreign language school at Suburb M. The father exhibits to his affidavit the child’s interim report for Term 3, 2015. Certainly the child’s report is not glowing and exhibits what appears to be some behavioural, home study and classroom engagement issues. However during the period covered by the report the child was spending significant time in the father’s household. There is no final year report for the academic year 2015 and the question of J’s school if it is pressed as a matter of concern by the father will need to be the subject of relevant and admissible evidence at final hearing. It is not in the child’s best interests to disrupt his presently established school arrangements particularly in circumstances where he will be residing primarily with the mother.
The Presumption:
The Court is satisfied that in all circumstances of this matter the presumption as to equal shared parental responsibility should apply. Whilst there are allegations of conduct they cannot be resolved. Notwithstanding the parties are in conflict the only issue that arises in the context of long term parental responsibility is schooling. That can await a final hearing.
The allocation of parental responsibility to one or the other parent in this matter in contraindicated by their conflictual history and the matters discussed above. Pending final hearing they will share the responsibility.
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
Clearly the best interest considerations do not support an equal time arrangement. It is unnecessary to consider whether it would be reasonably practicable.
The best interest considerations lead to reservations as to substantial and significant time as contemplated by the Act. As to the older child J, he has the capacity to express a view to his parents as to time with the father. The child K is younger and needs a more settled environment as espoused by the family consultant.
Discussion
Overall the best interests of the children are indicative of orders being made substantially as are in place now with the younger child being returned to the mother on Sunday evenings and J spending more time with the father.
Orders will be made as set out at the forefront of these Reasons for Judgment.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 April 2016.
Legal Associate:
Date: 29 April 2016
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