Benworth and Benworth (No 3)

[2011] FamCA 961

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH (NO 3) [2011] FamCA 961

FAMILY LAW – CHILDREN – Interim – School holiday time – where the main issue is a central argument in the undetermined appeal – maintenance of the current situation in the child’s best interests at this interim stage

Family Law Act 1975 (Cth)

APPLICANT: Mr Benworth

RESPONDENT: Ms Benworth

FILE NUMBER: SYC 8541 of 2007

DATE DELIVERED: 15 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Judge

SOLICITOR FOR THE APPLICANT: Goldrick Farrell Mullan

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

Orders

1. The husband’s Application in a Case filed 4 November 2011 be dismissed.

2. For the 2011/2012 Christmas school holiday period, the child M born … 2007 (“the child”) spend time with the father during the end of Term 4 2011 school holiday period as follows:

   2.1.From 6.00pm 20 December 2011 to 6.00pm 24 December 2011;

   2.2.From 9.00am 28 December 2011 to 9.00am 1 January 2012;

   2.3.From 9.00am 5 January 2012 to 9.00am 9 January 2012;

   2.4.From 9.00am 13 January 2012 to 2.00pm 17 January 2012; and

   2.5.From 9.00am 21 January 2012 to 9.00am 25 January 2012.

3. 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:

   3.1.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:

   3.1.1.the flights booked for such travel;

   3.1.2.the address of the premises at which the child will be staying whilst in the care of the father; and

   3.1.3.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.

4. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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. This is an application by the father for a definition of his time with the child, who is aged 7 years, in the forthcoming Summer school holidays. The substantive hearing in this matter was heard and finally determined by Rose J on 13 May 2011. The orders made by Rose J were that the child spend five nights a fortnight with the father during school term, being four nights in every alternate week and one night in the off week. The order for the father’s time with the child in the school holidays is “Half of each end of term school holiday period as agreed between the parties or failing agreement upon the father giving the mother six (6) weeks written notice.”  The parties have not been able to reach agreement in relation to any school holiday period since this order was made.

2. It is the mother’s position that the child should spend no longer than a four day block period with the father. The mother submits and I accept, that the mother’s position is what has been happening up until now and is consistent with recommendations made by the child’s former treating psychologist and the family consultant.

3. It is also consistent with previous interim orders made by Rose J, Le Poer Trench J and Loughnan J. 

4. A hearing took place for eight days. The mother applied to relocate to the United Kingdom. That application for relocation was unsuccessful. The mother has appealed that decision and that judgment is reserved.

5. It is the mother’s position that to alter what is the current situation would be to render what she has sought from the Appeal Court nugatory. One of the bases of the mother’s appeal is that although Rose J ordered “half of each end of term school holiday period as agreed”, he did so on the basis that the child should continue to enjoy the “status quo”, the appeal point being that His Honour had failed to take into account what the status quo was, namely that to that point in time on a regular basis the child had not been away from his mother for more than four nights at a time. The further appeal point is that as the order stood, it allowed the father to elect periods of time that would be spent with the child without reference to the mother in the absence of agreement. It was submitted to the Full Court that that was an unreasonable order given the mother’s assertions about emotional abuse throughout the marriage.

6. Prior to the orders of Rose J on 13 May 2011, the previous interim order made on 15 December 2010 was for the child to spend periods of no more than four nights away from the mother.

7. The current order made by Rose J was stayed by Le Poer Trench J in September 2011, and he made an interim order that that the child should spend time with the father in the Spring school holidays for no longer than four days. In regards to the Summer school holidays he ordered:

   (2) Should the Full Court of the Family Court of Australia not have delivered judgment in the mother’s appeal prior to the commencement of the end of year school holiday for the child then the parties are to negotiate times for the child to spend with the father during those holidays. This process is to commence with the father sending to the mother his request for time no later than 6 weeks before the commencement of the holiday period.

8. The parties have been unable to reach an agreement and ask the court to decide the matter on an interim basis.

9. Prior to the final hearing before Rose J, the arrangement for each parent to spend half the school holidays with the child has been in place by consent since February 2010. Since June 2010, the father’s time with the child during the holiday periods has been restricted to four day blocks at a time pursuant to orders of Loughnan JR (as he then was) in June 2010 and Rose J in December 2010.

10. The mother asserts that the father should not have the child for more than four nights in a row. She opposes the father’s application that the child spend time with the father for three block periods during the forthcoming school holiday period, including one block of seven days in Adelaide (13 January 2012 to 20 January 2012).

APPLICATIONS

1. The father seeks that holiday time begin on 20 December 2011, following his allocated weekend with the child from the evening of Friday 16 December 2011 through to 9am on Monday 19 December 2011. 

2. Once holiday time has commenced, the father seeks to spend time with the child on the following dates:

   12.1.from 5pm on 20 December 2011 to 5 pm on 24 December 2011;

   12.2.from 5pm on 1 January 2012 to 5pm on 6 January 2012;

   12.3.from 5pm on 13 January 2012 to 5pm on 20 January 2012; and

   12.4.from 5pm on 24 January 2012 to 5pm on 27 January 2012.   

3. As can be seen, this schedule involves periods of 4, 5, 7 and 3 nights. The last period sought is problematic given the child resumes school on Wednesday 25 January 2012 before having a public holiday on Thursday 26 January and resuming Friday 27 January.

4. The mother seeks that the father’s application be dismissed and that the child shall spend time with each parent on a four day rotational basis.

5. It can be seen that the ambit of the dispute is quite narrow. 

DOCUMENTS RELIED UPON

1. The father relies upon:

   16.1.Outline of argument;

   16.2.Application in a Case filed 4 November 2011;

   16.3.Father’s Affidavit filed 4 November 2011; and

   16.4.Judgment and selected transcript of the trial before Rose J in 2011.

2. The mother relies upon:

   17.1.Outline of argument;

   17.2.Response to an Application in a Case filed in Court 24 November 2011;

   17.3.Mother’s affidavit filed 22 November 2011;

   17.4.Affidavit of Dr C affirmed 13 October 2010; and

   17.5.Family Report dated 19 May 2010.

EVIDENCE

1. There have been two occasions on which the child has spent more than four days with the father. One was for a period of 5 days which the mother said was a mistake by her. There was no complaint that arose as a result of the child spending this period of time with the father. The other was for 6 days and the mother claimed the child was adversely affected by this extension in time. The mother said an incident occurred between the father’s wife and the child, detailed below. Counsel for the father made the point that although this occurred before the hearing in September with Le Poer Trench J, it was not raised in written or oral evidence at that time.

2. Exhibit 1 is a letter from the mother’s lawyers to the lawyers for the father, dated 12 August 2011 and detailing the issue that arose after the six day period that the child spend with the father. It was stated that the father and his wife (“Ms A”) had frequent arguments during that time and that the father’s wife referred to the child as “the little fucker”. The mother’s affidavit of 22 November 2011 goes substantially further than those matters described in the letter, referring to strong distress of the child for multiple days upon returning home, clingy behaviour and a description of events more extensive than contained in the original letter.

3. Counsel for the mother explained that the issue was not raised before Le Poer Trench J because that hearing related to the specific matter of whether a stay of orders should be granted, on the grounds that her appeal may be rendered nugatory if the stay was not granted. I note that in doing so the Judge was asked to make interim orders about the child’s time with the father and so I do not accept that submission.

4. It was argued by counsel for the father that the issue of the summer holidays was left open by Le Poer Trench J with the order that the father give 6 weeks notice of his intended time with the child. Justice Le Poer Trench said at paragraph 19:

   (19)…It is not clear to me how the child’s state of anxiety may be adversely affected by spending more than four nights with his father, however, it is not my role to determine the appeal.

5. I asked Counsel for the mother what weight I can give to the reasons of Rose J in the final hearing (which is currently on appeal) and was told that Rose J said in his reasons that ‘the current arrangements should continue for the child, the current arrangements being no longer that a four-day block’. I note that Rose J did say that “the child’s best interests are served by maintaining the status quo” and “The current pattern of times spent has been working satisfactorily…I have concluded that it is in the child’s best interests to continue those arrangements so that he will have the stability and routine with which he has become accustomed”. However I also note that Rose J made the comment “Obviously, reasonable needs and requirements of the child who is now seven years of age will progressively alter and those changes need to be accommodated with flexibility and sensitivity”.

6. The father argues that he has spent significant time with the child during school term and the child has a good relationship with the father and his wife.

7. The issue of maturity was raised, noting Rose J’s finding that the child had gained in his development, maturity and wellbeing from 2010 to 2011. The mother had conceded before Rose J that the child was safe in the father’s house and loved the father’s wife.

8. The mother’s case is that there is evidence that says the child  should spend no more than 4 nights at a time with the father, and that this has been the ‘status quo’ since February 2010. Given that there is no significant change in circumstances since the orders relating to the Spring holidays, counsel for the mother submitted that the 4 day status quo should be maintained.

9. I noted that Dr C’s letter of 10 June 2010 recommends a maximum of two nights at a time but that was based on the child’s circumstances of approximately 18 months ago. There has been some developmental or emotional progress since that time. Counsel for the father challenges the mother’s preference for a four night maximum, stating that “there has never been any evidence before the Court going specifically to a period of four nights”. Her evidence at the final hearing regarding the four days was “That is my application, but I am very flexible about that. I’ve always found it difficult to balance the time [the child] spends with [Mr Benworth] against what’s right for [the child]. So I’ve gone on recommendation from [Dr C] on that, on time, but I feel that you need to be flexible with that because the needs of the children are different and they change”.

CONCLUSIONS

1. When Le Poer Trench J considered the matter on 13 September 2011 and ordered only four night blocks to the end of term 3 school holidays, he concluded at paragraph 20:

   I do see that there may be the possibility of adverse impact upon the child of greater than four nights in one block with the father, and that it may be the mother can establish that on the evidence which was before the trial judge. I therefore conclude the mother, on balance, should be seen to have made her case that her appeal might become nugatory if the stay is not granted.

2. On an interim basis, I would have to reach the same conclusion based on the material I have. 

3. The problem is that the dispute I am being asked to determine on an interim basis is at the centre of the dispute that is the subject of the appeal.

4. I do not think that it is in the child’s best interests to make an order that may cut across any order which the Full Court might yet make.  I will make an order in the terms sought by the mother. I acknowledge that unfortunately this means the child may not be able to go on holidays to Adelaide for the full time which the father has proposed. The order will at least allow the child to attend for the first part of those holidays.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 December 2011.

Associate: 

Date:  15.12.2011