Barclay and Orton - [2009] FMCAfam 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARCLAY & ORTON

[2009] FMCAfam 613

FAMILY LAW – Children – whether or not the time spent over school holidays is separated or held in a block form – whether or not the children are supervised at all times by the father when in the presence of a step-grandparent – where changeover should occur.

Family Law Act 1975 (Cth)

Applicant:

MR BARCLAY

Respondent:

MS ORTON

File number:

PAC 2651 of 2008

Judgment of:

Burnett FM

Hearing date:

28 April 2009

Date of last submission:

28 April 2009

Delivered at:

Brisbane

Delivered on:

28 April 2009

REPRESENTATION

Applicant appears on his own behalf

Respondent appears on her own behalf

ORDERS

All previous orders be discharged.
[X] born in 2003 and [Y] born in 2005 shall live with the mother.
The father and the mother shall have the responsibility for the long-term care, welfare and development of the children.
Each party shall be responsible for making decisions concerning the day to day care, welfare and development of the children at those times when the children are in the care of that party.
The children shall spend time with the father at all such times as agreed to with the mother, but failing agreement, then as follows:
(a)Beginning Friday 1 May 2009, each second weekend from 5:00pm Friday after childcare or school (or Thursday if the Friday is not a school day) until Sunday 5pm (or Monday if Monday is not a school day).
(b)Subject to Order 23 herein, half of any gazetted school holiday period.
That the father provide to the mother one months written notice before any gazetted school holiday period if not intending to spend time with the children on the school holidays.
The children shall be delivered to spend time with the father by the mother and returned to the mother by the father at a location on route halfway between the mother’s and the father's residence and in default of agreement as to the halfway point then at the orderly room, [R] Police Station, Brisbane.
Ninety (90) days before any proposed overseas travel, written notice must be provided to the other parent of the intended travel, including reasonable and precise alternative arrangements with how the children will spend time with the other parent.
The mother is to ensure that the time the children would otherwise spend with the father when she travels overseas is provided for before or after the mother's travel.
In respect of the mother's intended travel for her wedding, that the mother provide sixty (60) days before the intended overseas travel written notice to the father, the date the children will be leaving Australia and the date the children will be returning.
Both parties are permitted to take the children overseas provided twenty-eight (28) days prior to the intended travel, or as soon as the information is at hand, the party intending to travel, provide written notice of:
(a)An itinerary.
(b)A copy of return air tickets.
(c)The destination.
(d)A contact telephone number on which the children may be reached on.
The mother is to retain the children’s passports and upon the father complying with these Orders the mother is to provide the passports to the father within seven (7) days of such written request for the period of the travel.
The mother and the father shall keep each other informed of their respective residential address and telephone number.
The mother shall authorise any childcare or educational institution attended by the children to forward directly to the father, all school reports, newsletters and other information, which the father may request from that organisation at the father's expense.
The father shall be entitled to attend parent/teacher interviews, childcare/school functions and other childcare/school, sporting and recreational activities involving the children.
The mother shall authorise any childcare or educational institution to allow the father contact with the children whilst in their care.
The mother shall keep the father informed of any school or childcare activities and change in school or childcare facility (including contact details) attended by the children.
The mother and father shall keep each other informed of any serious accident or illness suffered by the children whilst in their care.
The mother and father shall inform the other as soon as reasonably practicable of any medical condition, significant health issue and/or illness suffered by the children and authorise any treating organisation or practitioner to give the other such information as he or she might request.
That each party encourage and foster the children’s relationship with each other and the immediate family and extended family of the other.

Special days

That when the following special days fall outside the father’s time with the children as outlined in Orders 5 and 23 of these Orders the children spend time with the father as follows;
(a)For three hours on the children’s birthday each year if the children’s birthday falls on a school day; otherwise for four hours commencing at 12.00pm until 4.00pm if the birthday falls on a weekend.
(b)From after school until 7.00pm on the father’s birthday each year if the father’s birthday falls on the school day; otherwise for four hours commencing at 3.00pm until 7.00pm if the birthday falls on a weekend.
(c)From 9.00am to 5.00pm on Father’s Day each year.
(d)From 8.00am to 3.00pm on Christmas Day
That when the following special days fall on the father’s time with the children as outlined in Order 5 and 23 of these Orders the children spend time with the mother as follows;
(a)For three hours on the children’s birthday each year if the children’s birthday falls on a school day; otherwise for four hours commencing at 12.00pm until 4.00pm if the birthday falls on a weekend.
(b)From after school until 7.00pm on the mother’s birthday each year if the mother’s birthday falls on the school day; otherwise for four hours commencing at 3.00pm until 7.00pm if the birthday falls on a weekend.
(c)From 9.00am to 5.00pm on Mother’s Day each year.
(d)From 8.00am to 3.00pm on Christmas Day

THE COURT FURTHER ORDERS ON A FINAL BASIS:

That for the next two years the children have equal time with each parent over the gazetted school holidays, save for Christmas when the periods when the periods will be alternated on a week about basis.
That the children are to be supervised at all times by the Father if the Children are in the presence of Mr B.

Family Counselling and Dispute Resolution

(a) That pursuant to section 13C(1) of the Family Law Act 1975, within seven (7) days from the date of these orders, the parties do all acts and sign all documents necessary to
i.enrol and complete family any program as assessed as appropriate by the Manager of Centacare (the Service) and direct that the parties attend at Fortitude Valley to participate in such program;
ii.That insofar as the Service is unable to do so, the parties will authorise and facilitate the children and each of the parties to participate in “child inclusive” mediation as deemed appropriate, conducted by the Services or a Family Relationship Centre when the Service so directs.
iii.To provide consents authorising the Service to provide any information or records and to communicate with each and the Family Relationship Centre about the other family members’ participation in their programs, as the Service deem necessary;
iv.That the parties participate in mediation between themselves conducted by the Service at a time nominated by the Service;
v.To provide consents authorising the Service to report to the Court or the parties’ respective solicitors confirming each party’s participation and any recommendations made by the Service to the parties.
(b)That if a party fails to attend for the initial assessment or is unsuitable to take part in the program, the Court may on the application of the party or of its own motion relist the matter.
(c)That the parties are at liberty to attend the family counselling by telephone link if the Service considers it appropriate.
(d)That the parties provide a copy of this order to the Service.

IT IS NOTED that publication of this judgment under the pseudonym Barclay & Orton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

PAC 2651 of 2008

MR BARCLAY

Applicant

And

MS ORTON

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is a parenting application. The substantive matters are agreed. By that I say insofar as it concerns the wife's minute of final orders proposed in her minute filed 20 April 2009 it is agreed between the parties that there be orders in terms of paras.1, 2, 3, 4, 5(b), 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20. That is the husband's proposed orders.
In terms of the wife's proposed orders which are contained in annexure A to her affidavit filed 20 April 2009 there was agreement in terms of the inclusion of an order in terms of para.7 and para.33.
The parties also agree, following my prompting, for the inclusion of a special days order which will see the children spend time with the other parent in the event the special day, being Mother's Day, Father's Day or either parents' birthday falls upon a day when the other parent does not have time with the children.
Those matters aside, the two points of disagreement between the parties in terms of the two proposals are first these: the father in his application seeks orders in terms of para.5(a) which are that the children spend time with him as such times as may be agreed, but failing agreement for half the gazetted school holidays in Queensland with the children spending time in the first half of 2009 and then thereafter in alternate years, the second half.
The mother has no opposition to what is, in effect, a half gazetted school holiday order except for the Christmas holiday period when the gazetted school holidays extend for approximately six weeks duration as opposed to two weeks duration which apply in relation to each of the autumn, winter and spring holidays. For her part she proposes that there be equal time, namely three weeks, but that the time be truncated in a sense that – or at least the time be adjusted in a sense that it provide for one alternate week each over each of the six weeks which make up the Christmas break and that such an arrangement be in place for two years until the youngest child obtains the age of approximately five, going on six.
The second point of departure between the parties relates to the proposal contained in the mother's affidavit at para.31 which concerns an order that the children are to be supervised at all times by the father when the children are in the presence of Mr B. They are the only matters in disagreement. In addition, there is a disagreement about changeover in the sense that the parties have not agreed upon a point or location of changeover. I have indicated that I will direct that there be changeovers at the [R] Police Station unless the parties can otherwise agree.
To resolve this issue, regard is had in these cases to the law. Part VII of the Act deals with the way in which these disputes are resolved. It provides in s.60B for the objects and principles underlying this part of the Act which are to ensure that the children have the benefit of each of the parents having a meaningful involvement in their lives to the maximum extent it is consistent with their best interests, and protecting children from physical or psychological harm from being exposed to abuse, neglect or family violence.
The principles underlying the object include the right for the children to know and be cared for by way of the parents as well as for the children to spend time on a regular basis and communicate with both parents on a regular basis.
Insofar as the principal orders are concerned, the parties have agreed on those matters and there is no need to descend into a close analysis of the entire case, as the dispute is, as I have already noted, confined to two very minor and discrete issues concerning the manner in which spending time with is to be effected.
As with all matters s.60CA provides that in deciding a particular parenting order in relation to a child, the Court must have regard to the best interest of the child as a paramount consideration. As to how the Court determines what are the best interests of the child is provided for in s.60CC of the Act which provides for both primary and additional considerations to be assessed in order to determine those matters.
So far as other parts of the Act are concerned and including an analysis it usually commences with s.65D, s.61DA and then onto s.65DAA. There is no need to undertake that analysis today because of the confined nature of the issues in dispute.
Dealing then with each of these two matters so far as it involves a determination of best interests considerations. So far as both considerations are proposed, as I have already indicated, the mother asks for one set of orders and the father for another. Neither order, in my view, has any material bearing upon the benefit to the children of having a meaningful involvement of the children with both their parents.
The parents agree substantially in relation to time and this is not a case where there is any serious issue. It just relates to whether or not the time be punctuated, or at least time so far as it concerns the mother the time the children have with the father over the school holidays be abbreviated or punctuated as she proposes. Those factors will not, in my view, bear upon the development of any relationship and so neither proposal will be preferred on that basis.
So far as it concerns the need to protect the children from physical or psychological harm, the argument advanced by the mother is that, particularly having regard to the youngest of the two children, it would seem that at least for the next couple of years there is a risk of some emotional harm to the child being away from her for extended periods of time. To some extent, although the mother no doubt speaks intuitively about these matters, there is some evidence that supports that assertion. In particular I have regard to the observations made by writers such as Mitchell Barriss and Carla Garrity and also Robin Howarth who, in relation to children in the two and a half to five year bracket and six to eight year bracket, indeed, recommend that there be a maximum overnight time in the order of two to three days and that, of course, is in the context of a usual week in, week about arrangement. However, given that we're talking here about more extended time over Christmas breaks, that matter needs to be weighed having regard to those background facts.
It seems to me that what the mother proposes is perhaps going to be somewhat better for the children than the proposal by the father which is simply having a three week block period with him. It is to be borne in mind that the mother seeks this arrangement to be put in place for the next two years, that is until the youngest of their two children is about five years of age. To that end that consideration supports the mother's proposal in relation to time. Again, it does not have any bearing upon the para.31 issue.
So far as additional considerations are concerned the views expressed by the children are not material in this instance and no evidence has been placed before me concerning that matter. Concerning the nature of the relationship with each of the child's parents, again neither of these matters will bear upon the relationship the child has with the parents. The other matter may, however, bear upon the relationship with the children with other persons and, in particular, a grandparent or relative of the child.
So far as the second issue is concerned, the argument advanced by the mother is that the father has confessed to her that he had been interfered with as a child by his stepfather who is the step-grandparent of the children. She is concerned that when the children are in his care, should he take them to visit his mother (who still remains in a matrimonial relationship with the step father) that the children might be unnecessarily exposed to risk of interference by the paternal step-grandfather. While the evidence, of course, would suggest the risk of that is remote, the fact remains that it is indeed a risk if the father is to be accepted in relation to his complaints of abuse against himself. It follows that, in my view, again so far as the second proposal is concerned, the order that is sought by the mother would be favoured in terms of that consideration.
Next is the question of willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent which provides the Court to consider the matters identified in s.60CC(4) of the Act which provides that without limiting paras.3(c) and (i) of the Act, the Court must consider the extent to which each of child's parents perform his or her responsibilities as a parent, in particular, the extent to which each of the child's parents have taken or failed to take the opportunity to participate in making decisions about major long term issues relating to the children, to spend time with the children and communicate with the children and have facilitated or failed to facilitate the other parent to do likewise.
In this case, again, there seems to be some debate between the parties about these matters, but when one has regard to the issues they are at the margin, it does not seem to me, having regard to that particular consideration, that there can be any complaint by either party about the other in terms of participating in making decisions about major long term issues and I refer to the consent orders that are otherwise agreed as evidence of that. There is no question about spending time or facilitating spending time and, again, I refer to the consent orders and likewise in relation to communication, and again I refer to the consent orders. It seems that having regard to this consideration it does not assist in resolving disputes between the parties.
Next is the likely effect of any change in circumstances or in the child's circumstances, including the likely effect of the child and any separation from either his or her parents or other person with whom he or she has been living. Again, this is a consideration which is not raised in the context of the current dispute. Having regard to the general agreement about the time to be spent, it is only a question about how the time is to be spent and it would seem that it would not have any material bearing. Likewise any order as proposed by the mother in relation to the father. The father's supervision in the presence of his stepfather is not a matter which is likely to have any material bearing in terms of changing the children's circumstances. It follows this consideration is not material.
Next is the question of the practical difficulty and expense of the children spending time with and communicating with the parent and whether that difficulty or expense will substantially effect the child's right to maintain personal relations and direct contact with both parents on a regular basis. Again, having regard to the issues that are to be examined, this consideration is not relevant.
Next is the capacity of each of the child's parents and any other person to provide for the need for the child of any emotional and intellectual needs. So far as it concerns the mother's application, there is indeed a question raised by her which is not challenged by the father in relation to the previous history of the stepfather which would support the view taken by the mother in her proposal.

Next is the question of the maturity, sex, lifestyle and background of the children and each of the children's parents and any other characteristics of the child the Court thinks are relevant. This consideration is, in my view, relevant to a determination in relation to the mother's application. I have already indicated the child who is, if you like, the subject of the need for the punctuated time, is presently three years of age and not yet at school. I am guided, as I say, by the writings of the authors I have earlier noted, and it would seem in regard particularly to the age of that child, that the order that is proposed by the mother is one that is to be preferred. So far as the second issue is concerned, this consideration has no bearing on the application.
There are no questions of ethnicity or indigenous characteristics to be involved and ought to be assessed so that consideration is not relevant.
The next consideration is in relation to the attitude to the children for responsibilities of parenthood demonstrated by each of the child's parents. That requires the Court to consider s.60CC(4) issues. I have already identified those matters and discussed them. I do not think there is anything to be added to the earlier discussion.
Next are questions of family violence and, again, the matter is not relevant to the issues to be assessed.
And then finally questions of orders that will be least likely to lead to the institution of further proceedings in relation to the child. I take into account that these are final orders. The structure of the order that is proposed by the mother is one that sensibly allows for the growth and maturity of the child or the children and, to that end, is least likely to result in further proceedings after two years from now by the father.
Likewise the orders sought by the mother, insofar as it concerns the child or the children spending time with the paternal step-grandparent, it would seem to me that an order proposed by her is least likely to see the instituting of further proceedings, and by that I have in mind an application for an injunction to restrain any spending time with arrangements.
It follows in having considered each of the considerations I am required to consider under s.60CC individually and also having considered them collectively, that it seems to me that the best interests of the children will be served first by providing that for the next two years that they will have equal time over gazetted school holidays, save for Christmas when the periods will be alternated week about and, secondly, that there be an order in terms of para.31 of the mother's application.
I also propose, as I have already indicated, to make an order directing that changeovers, unless otherwise agreed, occur at the [R] Police Station. That should not stop the parties from continuing to endeavour to reach some agreement in relation to these matters. Finally, I propose to make orders directing the parties, in terms of my standard direction, for conciliation and dispute resolution, to attend upon the manager of the Centrecare Services at Fortitude Valley, Brisbane for the purpose of undergoing assessment and any course as is directed by them that could include, I am not saying it will, but could include, for instance, of a performance of a Triple P Parenting Program by the father and/or the mother and/or, for instance, any mediation with a view to trying to get the parties to resolve what otherwise should be resolved sensibly between sensible people.
As I have said to you at the outset, these are not legal issues, but if you want the law to intervene you have got an answer. If you are unhappy with any view I have or my rulings of course you are entitled to appeal but, in any event, they are the orders that I will make.
If the day falls on the day which is the other party's day well then the child goes across on that day for contact. If it is after school, it will be after school. So if Father's Day falls on a weekend which is the mother's weekend, then he will have the children on Father's Day and likewise if Mother's Day falls on a weekend. There will not be any make-up time it will just be that is the case. If Mother's Day falls on a weekend which is the father's weekend then the mother will have the children on Mother's Day. On birthdays, if they are on weekends, no problems, but if they are on school days it will be after school for a couple of hours. That is the general gist of the orders. Christmas Day will be one year about. You can contact each other on the telephone.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 23 June 2009