BACKLAND & SEVILLE
[2015] FCCA 1033
•20 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BACKLAND & SEVILLE | [2015] FCCA 1033 |
| Catchwords: FAMILY LAW – Children – parenting orders – best interests of the child – boy aged 5 years presently living with father and spending time with mother three nights each week – parental responsibility – equal shared parental responsibility – whether child should live with mother – whether child should spend more time with mother – whether child should spend equal time with each parent – whether child should spend time with each parent on a week-about basis – whether child should spend substantial and significant time with each parent – where mother has played more of a role in dealing with the child’s educational needs – where child’s time with mother is to increase to slightly more than equal time after six months. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Children (Criminal Proceedings) Act 1987 (NSW), s.33 |
| Cases cited: Backland & Seville [2013] FCCA 924 Backland & Seville [2014] FCCA 2125 |
| Applicant: | MS BACKLAND |
| Respondent: | MR SEVILLE |
| File Number: | SYC 1218 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 15 April 2015 |
| Date of Last Submission: | 15 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sloane |
| Solicitors for the Applicant: | Marsdens Law Group |
| Respondent: | In person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2009.
From the date of these Orders until Monday 5 October 2015 the child X is to live with the Mother and Father as follows:
(a)with the Mother from immediately after school each Wednesday afternoon until 5:00pm each Saturday; and
(b)with the Father from 5:00pm each Saturday until the commencement of school each Wednesday morning.
Notwithstanding the provisions of Order (3) above, the child X is to live with the Mother on the following additional days and times:
(a)from 5:00pm on the Saturday before Mothers’ Day until the commencement of school on the Monday morning immediately after Mothers’ Day;
(b)from immediately after school on the child’s birthday Monday (omitted) 2015 until the commencement of school the following morning.
For the purposes of Order (3) above, changeover where the child goes from the care of one parent to the other will take place at the child’s school or at the Mother’s residence as the case may be.
From and after Tuesday 6 October 2015 the child X is to live with the Mother and Father as follows:
(a)with the Mother from immediately after school each Tuesday afternoon until 5:00pm each Saturday; and
(b)with the Father from 5:00pm each Saturday until the commencement of school each Tuesday morning.
Notwithstanding the provisions of Order (6) above, the child is to live with the Mother and Father on special days as follows:
(a)with the Mother from 5:00pm on the Saturday before Mothers’ Day until the commencement of school on the Monday morning immediately after Mothers’ Day;
(b)for the child’s birthday, the child will spend time with the Father from immediately after school until 7:00pm if the birthday falls on a school day or from 10:00am to 2:00pm if the birthday falls on a weekend day or a public holiday when the child would normally be living with the Mother and with the Mother for an equivalent amount of time if the child’s birthday falls on a day when the child would normally be living with the Father;
(c)for the Mother’s birthday, the child will spend time with the Mother from immediately after school until 7:00pm if the Mother’s birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a weekend day or a public holiday when the child would normally be living with the Father;
(d)for the Father’s birthday, the child will spend time with the Father from immediately after school until 7:00pm if the Father’s birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a weekend day or a public holiday when the child would normally be living with the Mother;
(e)the child is to spend time with the Mother from 9:00am on Christmas Eve until 2:00pm on Christmas Day in 2015 and each alternate year thereafter and from 2:00pm on Christmas Day until 7:00pm on Boxing Day in 2016 and each alternate year thereafter; and
(f)the child is to spend time with the Father from 2:00pm on Christmas Day until 7:00pm on Boxing Day in 2015 and each alternate year thereafter from 9:00am on Christmas Eve until 2:00pm on Christmas Day in 2016 and each alternate year thereafter.
THE COURT NOTES that the child will normally be in the care of the Father on Fathers’ Day each year.
Each parent is entitled to attend all functions at the child’s school to which parents are normally invited including school concerts, prize-giving ceremonies, sporting events and parent-teacher interviews.
Each parent is entitled to receive from the child’s school copies of all school reports, newsletters, information about school photographs and all other material normally sent to parents of children attending that school.
Each parent must inform the other parent as soon as reasonably possible if the child should suffer any serious illness or injury whilst in their care and inform the other parent of the name and address of any medical practitioner or hospital providing treatment for the child.
The parties are restrained by injunction from:
(a)administering to themselves any illicit drug at any time when the child is in their care of for twelve (12) hours beforehand; and
(b)criticising or denigrating each other in the presence or hearing of the child or from permitting any third person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Backland & Seville is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1218 of 2013
| MS BACKLAND |
Applicant
And
| MR SEVILLE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for final parenting orders by the Mother of a little boy called X, who is now five and a half years old. Up till now, the child has been living with his father and spending time with his mother three nights a week. Now that he is at school, it would appear to be in this child’s best interests to start spending more time with his mother, particularly as she appears to have demonstrated more of a concern about his education than the father has.
It is significant that the Mother has gone to some trouble to prepare for the final hearing whilst the Father, despite having been given an adjournment and an opportunity to obtain further legal advice, has again attended Court without an updated affidavit or any sign of preparation at all. His case is essentially that of continuing with the present arrangements without any significant change.
This is quite concerning, as the Court is left with the view that the Father has given little thought to the child’s future, as opposed to the Mother, who has demonstrated a greater maturity in her outlook and has applied her mind to matters relating to her son’s care, welfare and development, especially his education. Whilst the Family Consultant in the updated Family Report has counselled against any radical change to this child’s arrangements, especially in this year when he has just started school, it would appear that there is a need for some graduated change which would permit the Mother to play more of a role in the child’s schooling.
Background
The parties were both very young when they commenced their relationship in (omitted) 2007. The Father, who was born on (omitted) 1991, was just under 16 years old, whilst the Mother was only 15 years of age. About a year after they met, they ran away together but returned to their own families about a month later. In about (omitted) 2009 they started living together in the home of the Father’s parents.
The child X was born on (omitted) 2009.
The parties’ relationship was characterised by family violence, leading to the Father being placed on a good behaviour bond under the provisions of s.33(1)(b) of the Children (Criminal Proceedings) Act 1987 for a period of 18 months for assault. On 6th July 2009 an Apprehended Domestic Violence Order was made against the Father for the protection of the Mother. That Order was in place for a period of 12 months.
The parties separated in early 2010 and the Mother took the child with her and went to live with her maternal grandmother. The Mother later moved in with friends, but subsequently asked the Father to look after the child due to her concerns about the behaviour of the people with whom she was living.
The Mother moved back to live with her mother in about June 2012 and asked the Father to return the child to her care, which he declined to do.
The Mother commenced proceedings on 8th March 2013 by filing an Application for Parenting Orders, which was returnable on 20th May 2013.
There was an Interim hearing before me on 15th July 2013 which led to Order being made on 31st July 2013 (Backland & Seville[1]). Those Orders provided that, until further order:
[1] [2013] FCCA 924
a)the parties were to have equal shared parental responsibility for the child;
b)the child would continue to live with the Father;
c)the child would spend time with the Mother:
i)from 5:00pm on Friday until 5:00pm on Monday each week;
ii)on the Mother’s birthday; and
iii)on Christmas Eve.
d)The parties were restrained by injunction from criticising or denigrating each other or from using alcohol or illicit drugs whilst the child was in their care; and
e)The parties were ordered to attend for interviews with a Family Consultant for the purpose of a Family Report under s.62G of the Family Law Act 1975 (Cth).
A Family Report was duly prepared by Ms L, a Family Consultant on 20th November 2013. The Report noted that the interim arrangements appeared to be working well and that maintenance of that regime for a further 9 to 12 months would solidify the child’s relationship with his mother and “cement the regime of moving on a weekly basis between the two houses”.[2]
[2] Family Report 20 November 2013 page 19 at paragraph [69]
The Family Consultant recommended that:
a)the parties should have equal shared parental responsibility;
b)the child should live with the Father;
c)the child should continue to spend time with his mother in accordance with the arrangements in the interim Orders: and
d)from the time the child reached the age of 6 years, the parties should move to an equal shared care arrangement on a seven night rotating basis.
On 13th December 2013 the Application was set down for final hearing for four days, from 26th to 29th August 2014.
On 8th August 2014 the Father’s solicitors filed a Notice of Withdrawal.
When the Application came before the Court for final hearing, the Father appeared unrepresented and unprepared. He sought an adjournment for the purpose of obtaining further legal representation. Counsel for the Mother expressed her client’s concern about the fact that the child was due to commence school at the beginning of the first school term in 2015 and the mother had been unable to secure the Father’s agreement to any school for the child.
On 28th August 2014 I made orders that:
a)the Father should pay the Mother’s costs in the sum of $5,800.00;
b)the Father was to file a Notice of Address for Service;
c)the Application was adjourned to 4th September 2014 for a hearing on the subject of the school to be attended by the child in 2015.
On 4th September 2014, after a hearing, I made orders that the child was to attend the (omitted) Public School. I noted that the Mother had prepared an affidavit in which she set out details of her proposed school and I was satisfied that the Mother’s proposal that the child should attend (omitted) School was soundly based and in the child’s best interests (Backland & Seville[3]).
[3] [2014] FCCA 2125
On 8th October 2014 I ordered an updated Family Report and listed the Application for final hearing on 15th and 16th April 2015.
The Updated Family Report was completed on 8th January 2015 and released to the parties.
When the matter came on for hearing, the Father was still without representation and completely unprepared. The Mother appeared with solicitor and counsel, having filed an updated affidavit and a Case Outline. The Father was directed to prepare a document setting out the Orders that he sought, which he did. I heard submissions from the Mother’s counsel, Ms Sloane, and the Father, and adjourned the matter until 20th April 2015 for decision.
The Family Report
The parties attended interviews with the writer of the Family Report, Ms L, on 5th January 2015. Ms L also observed the child’s interaction with each of his parents.
There were a number of positive developments noted in the Report, including the improved communication between the parties. The child was described as “happy and outgoing” by the Family Consultant.[4] He was observed to enjoy being in close proximity to both of his parents, each of whom responded to him “with a high degree of warmth and affection”.[5]
[4] Family Report 8.1.2015 page 10 at paragraph 29
[5] Ibid at page 11 [33]
Interestingly, the Family Consultant said of the Mother:
She demonstrated a capacity for reflective thinking and overall she appears to have grown considerably more mature since the end of 2013.[6]
[6] Ibid page 3 at [10]
The Mother told the Family Consultant that she would be concerned if the child were to have a week about arrangement because she believed that being away from either parent for seven days at a time would be too much for him to cope with.
The Father told the Family consultant that he no longer had any concerns for the child in his mother’s care. He felt that she was “much more focused on being a good mother to X.”[7]
[7] Family Report page 9 at [25]
In her evaluation, the Family Consultant noted that the parenting arrangements that had been ordered in the interim decision on 31st July 2013 had only recently been put in place when the earlier Family Report had been prepared but they had since been in place for 18 months at the time of the Updated Report. Those arrangements were that the child was spending four nights a week with his father and three nights a week with his mother. The Family Consultant said:
This has provided X with a significant period of stability after a number of years where his care arrangements were uncertain and subject to change depending on the parental circumstances.[8]
[8] Ibid page 11 at [36]
Ms L went on to report on the positive development of the relationship between the parties, noting that they appeared to have “little or no dispute about the future parenting arrangements for X, with each expressing a desire to only ‘tweak’ the arrangement in a minor way in the future”.[9]
[9] Ibid page 12 at [37]
The Family Consultant expressed the view that it was not in the child’s best interests to make any substantial changes to his parenting arrangements at the same time as he was commencing school, but suggested some minor changes after the April school holidays with a more substantial change, moving towards more or less equal time with each parent, from the beginning of the fourth school term in 2015.
The Family Consultant’s recommendations were:
a)that the parties have equal shared parental responsibility for the child;
b)that the interim orders should be maintained until the end of the first school term in 2015, with the only change being that the Mother should pick the child up from school on Friday afternoons and the Father should pick him up from school on Monday afternoons;
c)that from the beginning of the second school term in 2015 the child should spent time with his mother each week from after school on Wednesday until 5:00pm on Saturday; and
d)that from the beginning of the fourth school term, the child should spend seven nights each fortnight with each parent, not necessarily in a consecutive fashion.
The Parties’ Proposals
Despite the fact that both parties expressed the view that only minor changes should be made to the child’s parenting arrangements, each party put to the Court proposals that would bring about major changes to the child’s circumstances.
The Mother, in the Case Outline submitted by her Counsel, stated that the orders that she sought were:
Child, X, to live with the mother and spend time with the father as particularised in Initiating Application filed 20 May 2013.
Those proposed orders were that:
a)the parties should have equal shared parental responsibility for the child;
b)the child should live with the Mother; and
c)the child would spend time with the Father on alternate weekends from 5:00pm on Friday to 9:00am on Monday and on special days.
The Father had not obtained legal representation since the matter was last before the Court on 4th September 2014, nor had he filed any further affidavit material. Essentially, the situation was unchanged. I stood the matter down and directed the Father to prepare a document in which he was to set out, in his own words, the orders that he sought the Court should make in his son’s best interests.
The Father produced the document, which essentially stated that:
a)the parties should have equal shared parental responsibility for their son;
b)the child would live with the Father from 5:00pm on Monday to 5:00pm on Friday in the first week of each fortnight;
c)the child would live with the Mother from 5:00pm on Friday to 5:00pm on Monday; then
d)the child would live with the Mother from 5:00pm on the Monday to 5:00pm on the Friday of the second week; and
e)the child would then live with the Father from 5:00pm on Friday to 5:00pm on Monday.
The Father also proposed that the child would spend Fathers’ Day with him and Mothers’ Day with his mother, as well as shared arrangements for Christmas and the child’s birthday.
Applications for Parenting Orders
In any application for parenting orders, the Court must have regard to the provisions of Part VII of the Family Law Act 1975. In particular, the Court should have regard to:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;
c)Section 60CC, which sets out the way in which the Court determines what is in a child’s best interests; section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
d)Section 65DAA, which requires the Court to consider equal time with each parent or, in the alternative, substantial and significant time with each parent, where an order has been made that the parents should have equal shared parental responsibility for the child.
All of those matters have been considered, in so far as they are relevant.
Conclusions
The views expressed by the parties at the hearing were substantially different from those expressed to the Family Consultant and would each represent a substantial change to the child’s current arrangements. I am more of the view that the parties’ views in the Family Report and the recommendations of the Family Consultant offer an arrangement that is more in this child’s best interests.
There is clearly a benefit to this little boy in having a meaningful relationship with both of his parents. This is what he has now and it is clear that the interim orders made in 2013 have brought stability to this child’s life and have promoted his relationship with each parent.
The Father no longer expresses a fear that that the Mother may be unable to care for this child properly. It seems clear that the Mother has matured and has developed a greater sense of responsibility for her son. Her concern about his education is illustrative of her more mature outlook.
There have been incidents of family violence in the past, but they are historical rather than current, and the circumstances are now such that the parties have an amicable relationship between them. There is no fear that this child will be subjected to or exposed to physical or psychological harm as a result of abuse, neglect or family violence.
It appears clear that the child has a warm and loving relationship with each of his parents and a positive relationship with his grandparents on both sides.
It has become evident that, as the Mother has matured, she has become a more responsible parent, which is demonstrated by her approach to have the child enrolled in a suitable school for the start of his education. Her earlier application to the Court late last year was brought about by the Father’s apparent inaction.
Both parents seek an order that they should have equal shared parental responsibility for their son. There is a presumption in s.61DA(1) of the Family Law Act that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. This is certainly the case here and I propose to order accordingly.
When the Court makes an order for equal shared parental responsibility, it is then required by s.65DAA to consider whether it would both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court is not of that view, it should then consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
At present, this child is living with his father and spending substantial and significant time with his mother. I propose to follow the recommendations of the Family Consultant, at least in part, as it appears that this is a case where orders should be made for the child to live with both of his parents in a way defined by the Court. It seems clear that the Mother is the parent who has chosen to take a leading role in fostering this child’s education, and it would appear to be in the boy’s best interests to give the Mother more time with him, particularly on school days.
It would be reasonably practicable for this to take place, noting that the parents do not live far from each other and have a polite and cooperative relationship with each other.
As recommended by the Family Consultant, I propose to order that, starting immediately, the child is to live with the Mother from immediately after school on Wednesday of each week through to 5:00pm on the following Saturday afternoon. This arrangement should continue until the beginning of the final school term of the year, which commences straight after the October long weekend.
There will need to be some special arrangements for Mothers’ Day, which is the second Sunday in May, and the child’s birthday on (omitted), otherwise the Mother would not see her son on either of those days this year, which would be unfortunate.
For Mothers’ Day, the child should remain in the Mother’s care from Saturday afternoon immediately before Mothers’ Day until the Monday morning, when the Mother can take him to school and his father can collect him from school in the afternoon. This will mean that the child spends the full weekend of Mothers’ Day with his mother.
For the child’s birthday, which falls on a Monday this year, the Mother can collect him from school on the Monday afternoon and take him to school on the Tuesday morning.
From the beginning of the final school term for the year, commencing from the Tuesday immediately after the public holiday Monday, the Mother’s time with the child should increase so that he lives with her from immediately after school on Tuesday until 5:00pm on the following Saturday. This will allow the child to be with his mother for four nights each week, including the Wednesday to Friday, when he is at school. In this way, the Mother will be able to ensure that the child progresses well at school, whilst still allowing the Father some involvement with his son’s education.
True it is that this arrangement will not give either parent a completely free weekend except for the weekend of Mothers’ Day, but in the light of the parents’ expressed reluctance to enter into a straight week about arrangement it seems inappropriate to make such an order at this stage. However, the parties should in due course consider a week about arrangement where the changeover takes place each Friday after school. That is a matter for them to consider once their son has settled into school at some time over the next couple of years. The orders that are to be made at this time will allow the child to live in a stable and nurturing environment with both of his parents whilst giving his mother the ability to continue with her responsible approach to her son’s education.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 24 April 2015
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
0
2
3