BILLS & GALLENA
[2010] FMCAfam 552
•14 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BILLS & GALLENA | [2010] FMCAfam 552 |
| FAMILY LAW – Children – Interim orders – whether orders should be made until further order that the children reside with the mother – whether order should be made that the children spend time with the father – whether father should vacate the matrimonial home – best interests of the children – whether unacceptable risk – where final hearing to take place within three months. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB |
| Goode & Goode (2006) 36 Fam LR 422; FLC 93-286; [2006] FamCA 1346 |
| Applicant: | MR BILLS |
| First Respondent: | MS GALLENA |
| File Number: | SYC 5790 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 May 2010 |
| Date of Last Submission: | 13 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Cameron Gillingham Boyd |
| Counsel for the First Respondent: | Mr Anderson |
| Solicitors for the First Respondent: | Shaw Reynolds Bowen & Gerathy |
| Solicitor for the Independent Children’s Lawyer: | Ms Shea |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER the Applicant and the Respondent are restrained from denigrating or criticising each other or each other’s partners in the presence or hearing of the children or any of them.
UNTIL FURTHER ORDER the Applicant and the Respondent are restrained from discussing these proceedings with the children except so far as is necessary for the purpose of preparation of a Family Report.
BY CONSENT UNTIL FURTHER ORDER the issues to be covered by the Family Consultant in the Family Report ordered on 3 March 2010 are as follows:
(a)Each of the parties’ proposals is that the children live with that parent with the other parent to have each alternate weekend and one day or one night in the off week. Please comment on the impact on the children of each of the parties’ proposals in circumstances where the current arrangements are that the children see each parent almost on a daily basis.
(b)Whether, in the circumstances of the parties living in separate residences, a shared care arrangement for the children to spend equal time with each parent is in the best interests of the children.
(c)In light of recent case studies into shared care parenting and the Mother and Father’s current lack of communication, whether you consider that the parties are capable of facilitating a shared care arrangement for the children.
(d)If you consider a shared care arrangement is in the best interests of the children whether this should be a week about arrangement or a split week arrangement.
(e)If you consider that a shared care arrangement would not be in the best interests of the children, what spend time arrangements would you consider best fosters a relationship with the non-residential parent.
(f)Would you consider the capabilities of each parent to care for the children for substantial time having regard to:-
(i)Any issue surrounding the Husband’s use of alcohol as alleged in the Wife’s affidavits; and
(ii)The Husband’s concern about the Wife’s health issues as expressed in the Husband’s affidavit.
Orders 3 to 5(a) to (j) inclusive in the Application in a Case filed on
20 April 2010 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bills & Gallena is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5790 of 2009
| MR BILLS |
Applicant
And
| MS GALLENA |
First Respondent
REASONS FOR JUDGMENT
Application
This is an amended application in a case brought by the Respondent Wife. Originally, she sought orders in respect of both the property proceedings and the parenting proceedings before this Court. However, the Wife sought to file in Court an affidavit by Mr M sworn the day before going directly toward the question of challenging figures in a spreadsheet prepared by the Husband relating to income and expenses for the years to 2004 to 2009 and identifying family liabilities at the end of each year. I have decided to admit this affidavit over the objections of the Husband’s counsel but, in the interests of procedural fairness, I have decided to adjourn the property aspects of the application until 21st July 2010.
The application proceeded on the matters relating to the parenting orders sought by the Wife. The parties are currently separated but living under the one roof. Essentially, the Wife seeks orders to the effect that:
a)The Husband vacate the matrimonial home at Property N within two weeks;
b)The children live with her; and
c)The children spend time with the Husband:
i)Each alternate weekend from after school Friday to before school Monday;
ii)On the Wednesday afternoon and evening of the off week;
iii)During the school holidays as agreed or half of the holidays in default of agreement;
iv)Either Christmas Day and Boxing Day or Christmas Eve and Christmas Eve in alternate years;
v)Fathers’ Day;
vi)Not Mothers’ Day;
vii)For an agreed time on the children’s birthdays; and
viii)Other times by agreement.
The reason given by the Wife is that the children are aware of the conflict between their parents and it is causing them stress because of the fact that the parties are living under the one roof.
The application is opposed by the Husband. His view is that the Court is being asked to assess the living arrangements for the children without any expert evidence and with a final hearing listed to take place within about twelve weeks. Counsel for the Husband,
Mr Schonell, submitted that the claims of urgency seem only to have arisen since last December.
The Independent Children’s Lawyer does not support the Wife’s application. Ms Shea, who appeared for the Independent Children’s Lawyer, submitted that the current living arrangements for the children should continue until the final hearing in early August. The current arrangements have been in place since September 2008. There is a long-standing arrangement that each of the parties cares for the children at one or other end of the day. Further, there is no evidence as to the impact that the Wife’s proposals would have on the children. There is no evidence that the current arrangements are detrimental to the children’s health, social activities or other matters.
Background
The parties commenced their relationship when they were in their final year at school. They were married [in] 1989.
There are three children of the marriage:
a)[X] was born [in] 1999;
b)[Y] was born [in] 2001; and
c)[Z] (known as “[Z]”) was born [in] 2003.
Although the parties had an earlier separation and reconciliation, the Husband alleges that the relevant separation between the parties under the one roof commenced on 18th November 2007. The Wife, however, claims that the separation under the one roof did not commence until September 2008.
The Husband commenced these proceedings by filing an application only as to financial matters and supporting documents on
25th September 2009. Subsequently, parenting matters were included and on 18th February 2010 Roberts FM made orders by consent which included the appointment of an Independent Children’s Lawyer.
On 3rd March 2010 I ordered that a Family Report be prepared and listed the matters for final hearing before me on 4th, 5th and 6th August 2010.
Evidence
In support of her application, the Wife relies on three affidavits that were sworn on 12th November 2009, 16th February and 20th April 2010. In her first affidavit the Wife deposes that she has always been the primary caregiver for the three children. Whilst the Husband worked long hours, she was a fulltime stay at home mother, although she has since started her own [omitted] business.
The Wife described the situation in the household at the time of swearing her affidavit in this way:
Since separation the Husband and I have continued to live in the family home at Property N. The Husband has remained in the master bedroom and I sleep in the children’s playroom/spare room. [Z], our youngest child, generally sleeps with me and [X] and [Y] often sleep in my room also, either on the couch or on a mattress on the floor. I realise this arrangement is not very suitable for the children or the Husband and myself, however, I do not have the financial resources to live anywhere else. The Husband has informed me that he would be able to move into a property owned by his parents at [E].[1]
[1] Affidavit of Ms Gallena sworn 12.11.2009 at paragraph [41]
In her affidavit sworn on 16th February 2010, the Wife deposed:
After the Husband and I mediated with the [D] Service, on
10 November 2009, the Husband immediately informed the children that he would be moving to ‘[E]’ (his parents holiday home) and that the children would be living at [Property N] with mummy. The Husband has changed his mind but that arrangement is one that would suit me, and the childrens needs. It is no longer practicable for the Husband and me to reside in the same home.[2]
[2] Affidavit of Ms Gallena sworn 16.2.2010 at paragraph [2]
The Wife deposes that for some time she has been sleeping on the bottom bunk of one of the children’s bunks, a practice she commenced due to the Husband’s heavy consumption of red wine at night, which led to his snoring, tossing and turning and constantly getting up during the night, thereby disturbing her sleep.
Both parties formed other relationships, although the Husband has deposed that his relationship with another woman ended late in 2009.[3] The Wife’s relationship with another man is apparently still continuing.
[3] Affidavit of Mr Bills sworn 5.5.2010 at paragraph [2.2]
The Wife has complained that, although she and the Husband had shared the arrangements to pick the children up from school and had agreed that the Husband would spend Friday nights and Sundays with the children, he regularly asked his sister’s children to pick up their children from school and asks them to baby sit the children on Friday nights.
The Wife also complains that the Husband had changed the rules about when the children should go to bed when they are with him, which “confused and angered” them[4], bellows at the children in a loud voice and constantly treats the children “with sugary, artificially-coloured and preserved foods and lollies”.[5] She also complains that the Husband has denigrated her boyfriend, a Mr W, which upset one of the girls.
[4] Affidavit of Ms Gallena sworn 16.2.2010 at [30]
[5] Ibid
The Wife also complained about the Husband and his former girlfriend appearing nude in the presence of the children, but I note that this relationship has now ended.
The Wife deposed that:
The Husband and I have had a longstanding arrangement where each of us are responsible for the children at one end of the day each, with exceptions of when it is necessary to swap, occasions almost always instigated by the Husband. Since the weather started to warm up last year, I emailed the Husband and asked if we could swap around the children’s routine, so that I could take them to school in the mornings and then earn more money by working later in the afternoon instead of stopping at 3 pm each day to pick the children up. From Wednesday, July 2009, I have been doing the children’s routine in the mornings and the Husband the afternoons (with the variations that the Husband requests) – before this time it was the other way around and the Husband often would not come home until 10pm or not at all when he stayed with (his former girlfriend[6]).[7]
[6] As the husband is apparently no longer in a relationship with the lady concerned it is inappropriate to refer to her by name.
[7] Affidavit of Ms Gallena sworn 16.2.2010 at [38]
The Wife complained that the Husband had participated in an [omitted] television show early in 2009, which involved a television crew visiting the house. Although the Wife had indicated that she did not want the children to be filmed, two of the children in fact appeared when the show went to air.
The Wife also complains that the Husband does not leave the house in a clean and tidy state and she attends to the general cleaning and running of the household.
Conclusions
The Wife’s proposal would require a major change in the children’s lives, with the Father leaving the home and spending weekend and school holiday time with the children rather than being with them daily. It is difficult to justify this major change when the application is listed for final hearing on 4th, 5th and 6th August this year. A Family Report was ordered on 3rd March 2010 but it is not yet available. The Wife’s proposal is:
a)Opposed by the Husband; and
b)Not supported by the Independent Children’s Lawyer.
It may well be that the current arrangement is irksome to the Wife and that both she and the Husband wish that the matters between them can be resolved as soon as conveniently possible. Clearly, that would be beneficial to the children.
However, what the Court must consider whether this proposal is in the best interests of the children (Family Law Act 1975, s.60CA). If there are two major changes in the children’s lives between now and the end of the year, it is likely that this would be confusing and disruptive for them.
The evidence shows that the parties have worked out a pattern of arrangements to share the care of the children whilst living their own lives and, as far as possible, staying out of each other’s way. The Wife has changed these arrangements from time to time, such as spending time at her sister’s farm at [O] “and the Husband always gives his permission for such trips to [O]”.[8] Notwithstanding their personal differences, the parties have demonstrated a capacity to agree on arrangements for the children, and I am satisfied that, on an interim basis, it is appropriate to apply the presumption that that it is in the best interests of the children for the parents to have equal shared parental responsibility (see s.61DA(1) of the Act). The matter will, as required by s.61DB, be considered afresh when making final parenting orders.
[8] Affidavit of Ms Gallena sworn 16.2.2010 at [37]
The primary considerations in determining what is in the children’s best interests are set out in s.60CC(2)(a) and (b) of the Act. It is of benefit to the children to have a meaningful relationship with both of their parents, and on the evidence before the Court, the current arrangements provide this opportunity. The Wife’s proposal would, it appears to me, reduce the amount of time that the children spend with their father. Notwithstanding the Wife’s criticisms of him, the Husband’s parenting skills do not appear to be so deficient that they pose an unacceptable risk to the children. The evidence suggests that the Husband wants to continue to spend time with the children on a regular, daily, basis, and he is prepared to make arrangements with the Wife in order to achieve that.
The Court must consider whether there is a need to protect the children from physical harm from being subjected to, or exposed to, abuse, neglect or family violence. There is no evidence of family violence. The evidence does not support a finding of neglect. Where the Husband makes arrangements for the children to be picked up or babysat when he has another commitment, the evidence is that he arranges for his sister’s children to do so. There is no evidence that the children are in any way neglected when in the care of their cousins.
There is no evidence of physical or psychological harm that would justify the Court in requiring the husband to move out of the home. It may be distressing to the children for the Father to denigrate the Mother’s male friend, but that situation can be remedied on an interim basis by making an order that the parties do not criticise each other or their partners in the presence or hearing of the children.
It would also appear to be in the children’s best interests for the parties not discuss these proceedings with them insofar as that it possible. Clearly, the writer of the Family Report will need to see and speak to the children, and the parents will need to make the children aware of the necessary arrangements for this to occur. However, they both appear to have the capacity to do that in a way that will reassure the children that this process is appropriate and necessary.
I do not propose to order that the Husband move out of the matrimonial home prior to the final hearing or to vary the current arrangements for the children’s care. For the reasons set out above, I am not satisfied that it is in the children’s best interests for the Court to do so on an interim basis, in the light of a final hearing scheduled to take place within three months.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 31 May 2010
0