Benworth and Benworth (No 2)

[2010] FamCA 1177

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH (NO. 2) [2010] FamCA 1177

FAMILY LAW – CHILDREN – Child related proceedings – interim parenting – the periods of time which should be spent between each of the parties and the child over the school holiday period

Family Law Act 1975 (Cth) ss 60CA, 60CC (2) & (3), 61DA, 65DAA

Goode and Goode (2006) FLC 93-286
B and B (1993) FLC 92-357
Russell and Close (unreported 25.6.2003)
Re:Andrew (1996) FLC 92-692

APPLICANT: Mr Benworth

RESPONDENT: Ms Benworth

FILE NUMBER: SYC 8541 of 2007

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 14 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: L. Judge

SOLICITOR FOR THE APPLICANT: Goldrick Farrell Mullan Solicitors

COUNSEL FOR THE RESPONDENT: R. Schonell SC

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

Orders

Interim parenting orders

1. That Order 6.2(c) made 9 February 2010 is suspended until further order.

2. That the child of the parties M born … May 2004 (“the child”) spend time with the father as follows:

   (a)From 5.00pm Friday 24 December 2010 until 5.00pm Tuesday 28 December 2010.

   (b)From 5.00pm 1 January 2011 until 5.00pm 5 January 2011.

   (c)From 5.00pm 9 January 2011 until 5.00pm 13 January 2011.

   (d)From 5.00pm 17 January 2011 until 5.00pm 21 January 2011.

   (e)From 5.00pm 25 January 2011 until 5.00pm 29 January 2011.

3. That for the purpose of change-over of care of the child from one party to the other the father will collect the child from and return the child to the mother’s residence.

4. That the parties may by agreement vary or substitute all or any of the periods of time that the child is in or due to be in the care of the father pursuant to Order 2 herein.

5. That the parties ensure that otherwise the child is in the care of the mother.

6. That the father may travel with the child to and from Adelaide during any period that the child is in his care in accordance with Order 2 herein PROVIDED THAT:

   (a)the father has previously furnished to the mother no less than three (3) days prior to the date of any such travel a copy of the proposed travel itinerary with details of:

   (i)the flights booked for such travel;

   (ii)the address of the premises at which the child will be staying whilst in the care of the father;

   (ii)the landline telephone number of such premises and all relevant mobile telephone numbers for the purpose of telephone calls between the child and the mother, and between the parties in accordance with Order 4 made 30 June 2010.

7. That until further order the parties and their servants and/or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until the Court orders its removal.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8541 of 2007

MR BENWORTH

Applicant

And

MS BENWORTH

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, interim parenting, injunctive, spousal maintenance and interim property orders are sought by each of the parties in accordance with their respective minutes of orders being Exhibits 22 and 23.

2. The financial relief sought was the subject of compromise.  Accordingly, orders were made by consent at the hearing on 14 December 2010.

3. The substantive trial is part-heard before me.  Evidence is completed.  Submissions will be received on 21 January 2011, being the earliest date suitable to both counsel.

4. The child of the parties is M, six years of age, having been born in May 2004 (who for convenience I shall refer to as “the child”).

Issues for determination

1. The issues for determination in these interim proceedings remain as follows:

   (a)what periods of time should be spent between each of the parties and the child over the forthcoming school holiday period;

(b)whether the father may travel with the child to Adelaide during any such period; and

(c)the related issues in terms of the machinery necessary to be put into effect to ensure that those substantial issues are carried out in a practical way.

Background

1. The parties signed minutes of proposed consent orders which were ultimately made on 9 February 2010 which provided, amongst other things, for time to be spent between the father and the child for five days per fortnight.

2. On 30 June 2010, orders were made by Judicial Registrar Loughnan (as he then was) providing that the child spend half of the school holiday periods with the father.  There is no issue that half of the school holidays should be spent with him.  The issue arises in terms of the blocks of periods that the child should spend with him. 

3. The father for his part seeks alternative weeks. 

4. The mother for her part seeks four nights, but with the commencement to be 5.00pm on Day 1 and concluding at 9.00am following the last night.  So effectively, although it is four nights, full days are not provided. 

5. The father for his part had sought that the commencement of time be at 5.00pm rather than earlier in the day.  It was not clear to me on the material put forward on his behalf as to why such a later time was denoted, as opposed to an earlier time such as 9.00am.  However, no doubt there were good reasons for that being advanced and perhaps it was related to employment commitments.  I proceed on the basis of those respective proposals, provided that they are in the child’s best interests.

Legal Principles

1. Section 60CA of the Act enshrines that the best interests of the child is the paramount consideration for the purpose of parenting orders that are ultimately made.  What is often lost sight of is that a court such as the Family Court of Australia must only make decisions based on the actual evidence and not on other considerations. 

2. Consequently, the approach that I have followed is that adopted by counsel quite properly during the conduct of this interim application.  That approach is for me to be referred to the evidence which is currently before me and to give it such weight as seems appropriate for the purpose of making an order which is in the best interests of the child.

3. The child enjoys a close relationship with each of the parties and with the father’s wife, the stepmother.  The parties agree that the child should be the subject of an order requiring his name to be placed on the airport watch list until further order.  An issue arises between the parties as to whether or not the father is able to take the child with him to Adelaide during any of the forthcoming periods in the school holidays so that he may enjoy the company of not only the father and his wife, but also members of her extended family. 

4. In terms of the matters that I take into account and which are the subject of relevant findings, include the following: 

   (a)the orders sought by each of the parties advances their respective propositions that by such an order being made, the child will have the benefit of a meaningful relationship with both parents, spending half of the holiday periods with each of them. 

   (b)the amount of time in each block period with each of the parties for the purpose of, ultimately, the child having half of the school holiday periods with each of them.

5. Expert evidence has been provided by both Dr C, a psychologist, as well as by the family consultant, Ms B.  Ms B is a social worker.

6. Dr C has had the benefit of consultations with the child as well as interviews with each of the parents.  Her affidavit annexing her report contains a recommendation that the child spend no more than two nights away from the mother.  As counsel for the father has emphasised, that was in the context of school holiday period to take place in the middle of this year.  I do not have further expert evidence from Dr C or indeed any other expert with her qualifications and experience.

7. Ms B’s family report focuses upon her evaluation and recommendation that the current arrangements for time with each parent during school term continue, that is that the child spend no more than four consecutive nights away from the mother.  Ms B, during the course of her oral evidence, agreed that she had not made any recommendation as to time which she considered to be appropriate to be spent by the child with the father during school holiday periods.

8. An important matter which arises is the child’s past history of behavioural issues underpinned by anxiety.  The result of such anxiety has manifested itself in various ways, the subject of the evidence.  The father for his part has given evidence that such signs that the mother reports upon and which are also the subject of concerns expressed by one or more staff members of the child’s school have not actually been seen by him, in that the child does not have behavioural problems when in his care.

9. It is common ground between the parties that the mother has serious health issues.  It also seems clear on the evidence to date, subject to submissions made in the substantive hearing, that the mother at times has exhibited deep anxiety and concern in relation to the child’s absence from her in the care of the father for reasons that she has advanced.  I am not making any findings as to acceptance of that evidence because that is a matter which is to be the subject of submissions in the substantive hearing.

10. However, whether the mother’s anxiety was brought about by the evidence in her case or is due to other reasons, the fact remains that the child has been reacting to it.  It is well established by a number of judgments that genuine anxiety and concern expressed by a parent is a matter which is able to be taken into account in a parenting case and should be given such weight as seems appropriate in the circumstances of that case[1].  Accordingly, it is a matter which I will take into account.

    [1] B and B (1993) FLC 92-357; Russell and Close (unreported 25.6.2003); Re:Andrew (1996) FLC 92-692

11. The child is six years of age.  His express views on this particular issue are difficult to discern.  However, given that he has a loving relationship with each of the parties and has a fond relationship with his stepmother, I infer that the child therefore indirectly expresses a view to spend time with each of the parents and also with the father’s wife, the stepmother.  Each of the parties has a willingness and ability to facilitate and encourage the close and continuing relationship between the child and the other parent.  The real issue on this interim application is the period of time that should be spent for that purpose.

12. With regard to changes in the child’s circumstances, that is inevitably part and parcel of the issue of the period of time to be spent by the child with each of the parents during the forthcoming holiday period.  There were no submissions made which suggested that there was any practical difficulty and expense of the child spending time with and communicating with the other parent, nor that each parent lacks the capacity to provide for the child’s physical and emotional needs.

13. There has been extensive evidence given concerning the issue of family violence.  As the Full Court has made clear in Goode & Goode[2], on interim applications for parenting orders, the same considerations that are set out in section 60CC subsections (2) and (3) apply as they do on the hearing of substantive proceedings.  I am not in a position to make findings as to the allegations of family violence.  They are inextricably part and parcel of the evidence upon which submissions have yet to be heard.  Suffice it to say that submissions were not made by either counsel that this was an issue upon which findings should be made for the purpose of making interim orders regarding the best interests of the child.  Accordingly, nothing further needs to be commented upon so far as that issue is concerned, restricted to the interim application which is before me.

    [2] (2006) FLC 93-286

14. Section 61DA of the Act provides that there is a presumption that equal shared parental responsibility applies as between parents for the purpose of making a parenting order.  That presumption can be rebutted or set aside on one or other of the grounds set out in the subsections to section 61DA.

15. It was not part of the case for either party, on the hearing of this interim application, that that presumption should be rebutted or set aside.  As a consequence of section 65DAA which states that where equal shared parental responsibility applies, as it does in this case, on an interim basis, I am required to consider whether the child’s spending equal time with each of the parents is in the child’s best interests and whether it is reasonably practical to do so.  Fortunately, in this matter, the issue of equal time is not opposed by either party, so far as school holidays are concerned.  As I have already referred to, no issue arises in that context, as to the reasonable practicability for equal time being so spent.

Conclusion

1. I have concluded that orders will be made which provide for blocks of four nights with full days that followed the first night and, in particular, the last night to be spent with the father, for the reasons that I will now set forth.  The hearing before me was truncated because, by its very nature, that must follow in the context of an interim parenting application.  Consequently, the matter proceeded on the Papers, in that leave was not sought to further cross-examine either of the parties or any of the witnesses referred to and, in particular, the expert witnesses.

2. I am mindful that I need to ensure that there is not a view taken of actual or constructive predetermination of an issue in the substantive hearing.  The reason being that I have yet to hear submissions and if I was to make a finding which pre-empted those submissions, then it would be open to either party to make an application that I disqualify myself from further hearing of the substantive proceedings.  That would be a catastrophic event, both financially and emotionally, so far as each of the parties is concerned.  The trial had a number of significant and complicated issues, not the least of which is the question of whether or not it is in the child’s best interest that the mother be permitted to reside with him in London on a permanent or indefinite basis.

3. That issue is strongly contested and the father’s case is that the mother’s application in that regard should be refused.  The question of periods of time that the child might spend with the father, whether the child lives with the mother in the United Kingdom or in Australia, is also a significant issue for determination.

4. Consequently, for the reasons that I have given, I am concerned that, on the hearing of this application, there should not be any predetermination of issues or factual matters relevant to those primary issues.  In the normal course of events, an application for interim parenting orders would be heard by a different judicial officer, unrestrained by the need to avoid predetermination.  It was not practical to do so in this particular case.

5. I have concluded that it is in the child’s best interests to maintain stability and routine in terms of the periods of time that he spends with each of the parents and particularly the father, during the forthcoming school holiday period.

6. In the September/October school holiday period, the child spent either four days or five days with the father.  There is no evidence of the child suffering any ill effect so far as that care is concerned.  I am satisfied on the evidence before me that the father provided appropriate care of the child and was assisted in that regard by the stepmother.  This needs to be balanced against avoiding not only predetermination, but also bearing in mind behavioural issues that the child has had this year, improvement which has fortunately resulted of recent times and, subject to submissions made on the whole of the evidence in the substantive hearing, what appears, on an interim basis, to be the mother’s genuine anxiety regarding periods of time that the child might be away from her care.

7. I have also considered the need to ensure a continuing benefit to the child of a meaningful relationship with both parents.

8. Consequently, due to a combination of those matters; the weight that I have given to the expert evidence of Dr C and the absence of evaluation for the purpose of school holiday periods in the report and oral evidence of Ms B, I have concluded that it is in the child’s best interests for orders to be made reflecting the periods to which I have referred.

9. In addition, so far as the father’s proposal that the child may travel with him to and from Adelaide during any period that the child is in his care during the subject holiday period, an order will be made as sought by him.

10. There is no evidence before me that the father will do anything other than he has done when the child is with him in Sydney namely, properly care for him, assisted by the stepmother.  There is no evidence to suggest there are inappropriate premises in Adelaide or, the child being in the company of an unsuitable adult or other person.

11. Accordingly, the father’s proposals in that regard seem to be eminently suitable for the child and, on the face of it, the child will have the benefit of enjoying the company of members of the stepmother’s extended family.

12. To ensure that the mother is properly informed, I will make orders which provide for conditions which the father will need to fulfil for the purpose of such travel taking place.  He will be required to furnish the mother with no less than three days’ notice of the proposed travel itinerary, with particulars of the flights booked for such travel, the address of the premises at which the child will be staying whilst in the care of the father, and appropriate telephone numbers so that telephone calls may be made in accordance with the pattern which has existed now for some time, following the making of Order 4 made 30 June 2010.

13. In all the circumstances, and given that there was no opposition to the proposal of an injunction restraining the removal of the child from the Commonwealth of Australia and the child’s name to be placed on the airport watch list, the order as sought by the father will be made.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 15 December 2010.

Associate: 

Date:  21 December 2010