FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B & ANOR | [2007] FMCAfam 246 |
| FAMILY LAW – Interim parenting – dispute between same sex mothers with father joined as second respondent – overnight time – meaningful relationship. |
| Family Law Act 1975, ss.60CC |
| Cardaklija & Cardaklija [2007] FMCAfam 16 Goode & Goode [2006] FamCA 1346 Matthews and Kennedy [2007] FMCAfam 26 |
| Applicant: | B |
| First Respondent: | B |
| Second Respondent: | D |
| File Number: | SYC108 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 17 April 2007 |
| Date of Last Submission: | 17 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hausman |
| Solicitors for the Applicant: | David Cohen & Associates |
| Counsel for the Respondent: | Ms Christie |
| Solicitors for the Respondent: | Andrea Wilson & Associates |
| Second Respondent: | Self represented |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Applicant and the First Respondent have equal shared parental responsibility for the Children, F and T.
The Children live with the Applicant and First Respondent as follows:
That F and T live with the Applicant from 12.00pm Sunday to 7.45am Monday each week with the Applicant collecting the Children from the First Respondent on the Sunday and the First Respondent collecting the Children from the Applicant’s residence on the Monday morning.
(a)That F live with the Applicant from 3.00pm Monday to 9.00am Tuesday each week with the applicant collecting F from school at 3.00pm and dropping F back at school on Tuesday mornings at 9.00am.
(b)That F and T live with the Applicant from 2.45pm Thursday to 9.00am Friday each week with the Applicant collecting T from the residence of the First Respondent prior to collecting F from school and returning T to the residence of the First Respondent prior to dropping F at school on the Friday morning.
(c)That F live with the Applicant one half of each school holidays by agreement with the parties but failing agreement the second half of each school holidays with the Applicant.
(d)At other times with the First Respondent.
Each party retain sole responsibility for the day to day care, welfare and development of the Children whilst they are in their respective care.
Each party is permitted to attend any school activity, extracurricular activity or sporting activity in which the children are involved whether or not the children are living with that party at the time.
That neither party change the school or child care attendance by the children without written agreement with the other party.
That each parent shall do all things necessary to ensure the Children are free to contact the other party by telephone or email at any reasonable time.
That each party shall provide to the other party a land line contact telephone number as well as their mobile telephone number and the address where the children shall be living during the periods when the children are in their respective care.
That each party shall advise the other in writing of any change of address or telephone and or mobile…
Continue reading B and B and Anor
Sign in free to access the full text
- AGLC
- B and B and Anor [2007] FMCAfam 246
- Case
- [2007] FMCAfam 246
- Decision Date
CaseChat Overview and Summary
The court had to decide on the most appropriate living arrangements that would cause minimal disruption to the children, taking into account their existing environment and the arguments presented by both parents regarding their capacity to provide for the children's needs. The court also considered the practical difficulties and expenses associated with each parent spending time with the children. Ultimately, the court had to weigh these factors against the statutory criteria outlined in section 60CC of the Family Law Act 1975.
The court found that the First Respondent's proposal would create significant changes in the children's lives, which would be unwise given the impending final hearing. It was determined that the current arrangement, which had been consistent both before and after the parents' separation, reflected the children's settled environment. Both parents were deemed capable of meeting the children's needs, but the court was reluctant to implement any major changes so close to the final hearing. The court also noted that the capacity of each parent to provide for the children's needs, while important, was not a decisive factor in the interim decision.
The court ordered that the Applicant and the First Respondent have equal shared parental responsibility for the children. The children will live with the Applicant from Sunday afternoon to Monday morning and on alternate Thursdays and Fridays, with the First Respondent having care of the children at other times. The parties were directed to ensure that the children maintain contact with each other and to refrain from negative discussions about each other in the children's presence, among other restrictions. The matter was adjourned for a final hearing, with specific directions for affidavits and document exchange prior to the hearing.
Orders
Orders of the court
1.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
2.
The Applicant and the First Respondent have equal shared parental responsibility for the Children, F and T.
3.
The Children live with the Applicant and First Respondent as follows:
4.
That F and T live with the Applicant from 12.00pm Sunday to 7.45am Monday each week with the Applicant collecting the Children from the First Respondent on the Sunday and the First Respondent collecting the Children from the Applicant’s residence on the Monday morning.
(a) That F live with the Applicant from 3.00pm Monday to 9.00am Tuesday each week with the applicant collecting F from school at 3.00pm and dropping F back at school on Tuesday mornings at 9.00am.
(b) That F and T live with the Applicant from 2.45pm Thursday to 9.00am Friday each week with the Applicant collecting T from the residence of the First Respondent prior to collecting F from school and returning T to the residence of the First Respondent prior to dropping F at school on the Friday morning.
(c) That F live with the Applicant one half of each school holidays by agreement with the parties but failing agreement the second half of each school holidays with the Applicant.
(d) At other times with the First Respondent.
5.
Each party retain sole responsibility for the day to day care, welfare and development of the Children whilst they are in their respective care.
6.
Each party is permitted to attend any school activity, extracurricular activity or sporting activity in which the children are involved whether or not the children are living with that party at the time.
7.
That neither party change the school or child care attendance by the children without written agreement with the other party.
8.
That each parent shall do all things necessary to ensure the Children are free to contact the other party by telephone or email at any reasonable time.
9.
That each party shall provide to the other party a land line contact telephone number as well as their mobile telephone number and the address where the children shall be living during the periods when the children are in their respective care.
10.
That each party shall advise the other in writing of any change of address or telephone and or mobile numbers within seven days of such change.
11.
The neither party shall unless by Order of the Court or by written consent of the other party remove the Children from the Commonwealth of Australia.
12.
Both parties are restrained from:
(a) Speaking or permitting any person other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b) Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
(c) Consuming illicit substances within twenty four hours prior to or during time spent with the children.
13.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
14.
The parties send copies of all their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
15.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
16.
The matter be adjourned to 26 September 2006 at 10am for a two day final hearing.
17.
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 5 September 2006. No further affidavits to be filed after that date without leave of this Court.
18.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
19.
No later than two working days prior to hearing each party forward to my Associate a document setting out:
(a) The affidavits on which the party will rely at hearing;
(b) The orders sought at hearing
20.
The parties have liberty to apply on seven days notice.
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
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation form parents. There is a close relationship between the impact of the changes proposed and the impact on the meaningful relationship between the children and the parents which is discussed at paragraph 12 onwards above. On behalf of the applicant it was submitted that her proposal is the one that provides the minimal disruption and change from the existing arrangements. Ms Hausmann submitted that the Full Court’s decision in Goode & Goode [2006] FamCA 1346 did not completely abandon the significance of a child living in a settled environment. Indeed, the Full Court specifically acknowledged this, when it acknowledged it still may be possible for a court to find that what is ultimately in the child’s best interests it to remain in a well-settled environment, but that conclusion can only be arrived at after considering that matters in s.60CC. In short, whilst the result of keeping a child in a stable well-settled environment is still possible, the route to be adopted is a more circuitous one. In this case I would be very reluctant to implement the first Respondent’s proposals the effect of which would, on the basis of the evidence available to me, create the greatest change in the children’s lives for the reasons I have set out above. It would be most unwise to effect such a change when the final hearing in this matter has been listed for 26 and 27 of September and at which point in time a different arrangement might be entered into. Section 60CC(3)(e) The practical difficulty and expense of children spending time with a parent. No issues arise in this case. Section 60CC(3)(f) The capacity of each parent to provide for the needs of the children including emotional and intellectual needs. In this case there is no evidence to indicate that either mother is unable to provide for the needs of the children. On behalf of the first respondent, however, it was strongly argued that both in terms of past and current parenting arrangements she has had the predominant role and she is able to offer availability and stability at a higher and deeper level than can be offered by the applicant. Specifically, whereas the applicant works fulltime, the first respondent does not work on a Monday or Friday. It is submitted on the first respondent’s behalf that is it her proposal that ensures that the parent who has the most capacity to provide for the needs of the children is actually given that opportunity. This is a consideration, but not a weighty one in the context of an interim application, where the final hearing is barely five months away. Notwithstanding the first respondent’s arguments about availability, stability and the extent to which she is better able to provide for the needs of the children because of her flexible work arrangements, it does appear that the current arrangement reflects that which these parents had adopted both before and after the end of their relationship. The use of nannies and alternative carers was a common feature of parenting both before and after separation. Any discussion about the capacity of a parent to provide for the needs of children needs, in my opinion, to consider both context and history. Both mothers were able to adequately provide for the needs of their children, and the history of their parenting is inconsistent with a submission that says, in effect, one parent is better able to provide because they are more available.