BIRCHLER & MANIKAS

[2015] FamCA 986

FAMILY COURT OF AUSTRALIA

BIRCHLER & MANIKAS [2015] FamCA 986

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where consent orders were made on the day of the hearing resolving in part the father’s application – Where the father’s time with the children during the school term and holiday periods as well as changeover arrangements were the only substantial issues outstanding – Where the co-parenting relationship is poor and communication between the parents occurs via text message or through solicitors – Where the Court finds the presumption of equal shared parental responsibility to have been rebutted – Consideration of s 60CC – Orders made – Appointment of Independent Children’s Lawyer – Parties to join in the appointment of a single expert witness.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Banks & Banks (2015) FLC 93-637
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Birchler

RESPONDENT: Ms Manikas

FILE NUMBER: SYC 7025 of 2014

DATE DELIVERED: 11 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 22 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Pigott Stinson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

Pending further Order, the Court orders that:

1. Subject to the Orders made on 22 September 2015, the children B born … 2008, C born on … 2009, and D born … 2011 (“the children”) shall live with the mother.

2. The children shall spend time with the father as agreed between the parties and failing agreement as follows:

   a)         Each Wednesday from after school (or 3.30pm on non-school days) to           6.00pm; and

   b)        Each weekend, on an alternating basis, as follows:

   i)In week one, from after school on Friday (or from 3.30 pm on non-school days) to 6.00 pm on Saturday; and

   ii)In week two, from after school on Friday (or 3.30pm on non-school days) to 6.00 pm on Sunday.

   c)For the first half of the autumn, winter and spring school holidays,       commencing from 6.00 pm on the first Sunday after the end of the school term until 6.00 pm the following Sunday; and

   d)During the summer school holidays, on an alternating week about basis as follows:    

   i)Commencing at 6.00 pm on the first Sunday of the holidays until 6.00 pm the following Sunday and each alternate week thereafter in odd numbered years; and

   ii)Commencing at 6.00 pm on the second Sunday until 6.00 pm the following Sunday and each alternate week thereafter, in even numbered years.

3. Unless otherwise agreed between the parents, where changeover does not otherwise occur at the children’s day-care, pre-school or school:

   a)The mother is to collect the children from the father’s residence at the commencement of her time with the children;  

   b)The father is to collect the children from the mother’s residence at the commencement of his time with the children; and

   c)Provided that at least twenty-four (24) hours’ written notice is given to the other parent, each of the parents is permitted to request that the other parent to collect the children from their place of work instead of their place of residence.  

4. Pursuant to section 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed and I request the Legal Aid Commission of NSW to provide such representation.

5. The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET, within seven (7) days all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

6. The parents, in consultation with the Independent Children’s Lawyer, are to join in the appointment of a single expert, pursuant to Chapter 15 of the Family Law Rules 2004, to report on the matters referred to in section 60 CC of the Family Law Act 1975 and in particular the capacity of each of the parents to provide for the needs of the children including emotional and intellectual needs, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, the attitude to the children and responsibilities of parenthood demonstrated by each of the parents, and any other matter which the single expert or Independent Children’s lawyer think is relevant.

7. In the event the parties are unable to agree on the name of the single expert in accordance with Order (7) above, the Independent Children’s Lawyer is to nominate the single expert.

8. The parties are to do all things necessary, in consultation with the Independent Children’s Lawyer, to facilitate the preparation of a report by the single expert, including:

   a)Attending on the single expert and arranging for the children to also attend; and

   b)Providing copies of all relevant documents filed on their behalf in these proceedings to the single expert.

9. Each of the parties shall pay one half of the costs of the single expert.

10. Otherwise, all orders sought in the Amended Application in a Case filed 11 June 2015 and the Response to an Application in a Case filed 1 June 2015 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Birchler & Manikas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7025 of 2014

Mr Birchler

Applicant

And

Ms Manikas

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties, Ms Manikas (“the mother”) and Mr Birchler (“the father”), are involved in parenting and property proceedings before the Family Court. This matter arises from an Amended Application in a Case filed by the father on 11 June 2015 in which he seeks interim orders increasing the amount of time the children of the marriage spend with him. The children are B born in 2008, currently aged 7, C born in 2009, aged 5, and D born in 2011, aged 4.

2. By consent, orders were made on 22 September 2015 which partially resolved the matters raised by the father in his application. Those matters, which were resolved, primarily related to the children spending time with each of the parents on special occasions such as birthdays, Father’s Day, Mother’s Day, and religious celebrations together with telephone contact, notice of interstate and intrastate travel with the children, communication with the school and the children’s participation in sport and extra-curricular activities. The most significant issue that remained outstanding was the amount of time that the children spend with the father during the school term and during school holidays.

Approach of the Court

1. The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for parenting orders on an interim basis. At 80,903 - 80,904, under the subheading "How should interim proceedings be conducted?", the Full Court states:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Evidence

1. In evidence in the proceedings were three affidavits of the father filed respectively on 25 February 2015, 11 June 2015 and 9 September 2015. The mother relied on three affidavits sworn by her and filed respectively on 1 June 2015, 15 June 2015 and 9 September 2015. The mother also relied on the affidavit of Ms Manikas Snr, the maternal grandmother, filed on 15 June 2015.

2. Also in evidence was the Child Responsive Program Memorandum of Family Consultant, Mr E, dated 19 August 2015 (“the Child Responsive Program Memorandum”).[1]

   [1] Exhibit 1.

Competing proposals

1. In terms of parenting, the father sought the following orders:

   1….

   2. That the children live with each party at the following times:

   (a) During school term:

   (i)Terms 1 and 3 Week 1:

   That the children live with the husband from the close of school on Wednesday to 10.00 am Saturday and that the children live with the wife from 10.00 am on Saturday to the commencement of school on Wednesday.

   (ii)Terms 1 and 3 Week 2:

   That the children live with the husband from the close of school on Wednesday to 10.00 am on Sunday and that the children live with the wife from 10.00 am on Saturday to the commencement of school on Wednesday.

   Terms 2 and 4 Week 1:

   That the children live with the wife from the close of school on Wednesday to 10.00 am to Saturday and the children live with the husband from 10.00 am on Saturday to the commencement of school Wednesday;

   Terms 2 and 4 Week 2:

   That the children live with the wife from the close of school on Wednesday to 10.00 am on Sunday to the commencement of school on Wednesday;

   (b) One half of each school holiday period at times and on dates to be agreed between the parties and failing agreement, the children live with the husband for the first half in odd numbered years and the second half in odd numbered years and conversely the same for the wife;

   3. ….

   4. That the husband shall collect the children at the commencement of the time that the children live with him and that the wife will collect the children at the commencement of the time the children live with her.

2. The father also sought “additional orders” to the following effect:

   8. Pursuant to section 68L of the Family Law Act an Independent Children’s Lawyer be appointed to represent the children.

   9. ….

   10. ….

   11. ….

   12. That [Dr F] be appointed to enquire into and prepare a report upon matters relating to [B], [C] and [D] and that in preparing the report to the Court, the single expert witness be requested to consider:

   [Considerations as set out in section 60CC of the Act as well as]:

   (m) The mental state and/or health conditions of the parents so far as it relates to their capacity to care for the children including any hospital admissions or medical treatments either party may have had for mental and/or health conditions and any recommendations for treatment of either party on an ongoing basis; and

   (n) The mental health, medical and special needs, if any of the children and where, within the ambit of the qualifications of the single expert witness and any recommendations of treatment appropriate for the children.

3. The orders sought by the mother in respect to parenting were:

   1. That the children…. shall live with the Mother and spend time with the Father as agreed between the parties and failing agreement as follows:

   Spring School holidays 2015

   1.1 From the date of these Orders to the conclusion of the Spring School       holidays on 6 October 2015.

   1.1.1 From 3.00pm to 6.00pm on Tuesday each week;

   1.1.2 From 9.00am to 6.00pm on Thursday each week;

   1.1.3 On Saturday, 26 September 2015 from 9.00am to 6.00pm;

   1.1.4 From 5.00pm on Friday, 2 October 2015 to 6.00pm on  Saturday, 3 October 2015.

   During School Terms

   1.2 During school terms:

   1.2.1 From the commencement of school Term 4 at J School on 7 October 2015 through to the conclusion of the school year on 3 December 2015:

   (a) on Tuesday and Thursday each week from after school  (or 3.30pm subject to Order 2.1.1 herein) to 6.00pm; and

   (b) on weekends as follows:

   (i) in week one, from 5.00pm on Saturday to 6.00pm  on Sunday and in each alternate week thereafter; and

   (ii) in week two, from after school (or 3.30pm subject  to Order 2.1.1 herein) on Friday to 6.00pm on  Saturday and in each alternate week thereafter.

   During School Holidays

   1.3 During the Christmas school holiday period in 2015 and during                 Autumn, Winter and Spring school holiday periods in 2016 the Father’s   time with the  children pursuant to Orders 1.2.1 and Orders 1.2.2 herein are    suspended and the Father’s time with the children shall occur as follows:

   1.3.1 In week one:

   (a) from 9.00am to 6.00pm on Tuesday; and

   (b) from 6.00pm on Friday to 6.00pm on Monday

   and in each alternate week thereafter;

   1.3.2 In week two, from 9.00am on Thursday to 6.00pm on Friday                   and in          each alternate week thereafter;

   2. That changeovers shall occur such that:

   2.1.1 On weekdays:

   (a) If all three of the children attend school/daycare/preschool on a day the Father is to spend time with the children after school or to before school pursuant to these orders, the Father shall collect from and/or return the children to the school/daycare/preschool they each attend from time to time;

   (b) If any of the children has not attended school/daycare/preschool on a day the Father is to spend with them pursuant to these orders, the father shall collect the children from the Mother’s place of work at the commencement of his time with the children and return the children to the Mother’s residence at the conclusion of such time;

   (c) Otherwise, changeover is to occur at the Mother’s residence.

   2.1.2 On Saturdays and Sundays and school holidays the Father shall collect the children from the Mother’s residence at the commencement of his time and return the children to the Mother’s residence at the conclusion of his time.

   3. That within fourteen (14) days of making these orders the parties shall do all acts and things necessary to make appointments to attend family therapy with [Mr G], Child & Family Therapist, or such other therapist as may be agreed between the parties, or failing agreement, as may be recommended by [Mr G] (“the therapist”).

   4. That the parties shall attend upon the therapist as and when directed by the therapist and facilitate the children attending upon the therapist, as directed by the therapist.

   5. That the parties shall each meet their own costs of individually attending upon the therapist, and shall each be responsible for one half of the cost of any joint sessions and sessions involving the children attending upon the therapist.

   6. ….

   7. ….

Agreed or uncontentious facts

1. The father is aged 51 and the mother is aged 42. They were married in 2007 and separated in December 2013.

2. The father is a builder and the mother is a media director in a family import business.

3. The mother resides in the former matrimonial home at Suburb H. Her parents also reside at that property.

4. The father lives with his parents at Suburb I.

5. The children have a good relationship with both the maternal and the paternal grandparents.

6. There is no issue that both of the parents’ current residences are suitable accommodation for each of the children.

7. The mother is the primary carer of the children and the children have lived with the mother in the former matrimonial home since separation.

8. The children currently spend time with the father as follows:

   a)from Tuesday 4:30 PM until 6 PM;

   b)from Thursday 4:30 PM until 6 PM;

   c)one day on alternate weekends from 9AM to 6PM; and

   d)one overnight on alternate weekends from either Friday 4 PM to Saturday 6 PM, or from Saturday 5 PM to Sunday 6 PM.

9. B is in Year 2 and C is in Kindergarten. Both attend J School at Suburb K. D attends L Day Care and Preschool two days per week.

10. D will commence school in 2017.

11. There are no existing parenting orders in place.

Issues

1. The issues in this matter concern the following:

   a)What is the appropriate amount of time that the children should spend with the father during:

   i)the school term; and

   ii)during school holiday periods?

   b)What would be the appropriate arrangements for changeover?

   c)Whether orders should be made for:

   i)the appointment of an Independent Children’s Lawyer;

   ii)the appointment of a single expert to provide a report in respect to parenting matters; and

   iii)the attendance of the parties at counselling?

Consideration

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in deciding whether to make a parenting order, the Court "must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in section 65AA.

2. Section 60CC sets out what has been described as a "legislative pathway" to determine what is in a child's best interests. In Banks & Banks,[2] the Full Court outlined a practical approach to applying the section 60CC considerations in the following terms:

   49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [2] (2015) FLC 93-637 at 80,116.

1. The Court has given consideration to the matters set out in section 60CC generally but will concentrate on those considerations which are of greatest relevance to this matter.

Primary considerations

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. The father relied on section 60CC(2)(a) which, the father’s counsel noted, was entirely consistent with the objects of the Act as set out in section 60B(1)(a).

2. The father’s counsel referred to the Child Responsive Program Memorandum wherein the family consultant noted that both of the older children, in particular, expressed a desire to spend time with the father.

3. It is also of significance that the mother acknowledged "that the children have a close and loving relationship with [their father] and enjoy spending time with him."[3]

   [3] Mother's affidavit filed 1 June 2015 at paragraph 82.

4. Therefore, there was essentially no issue between the parties that it is in the best interests of the children to have a meaningful relationship with both parents.

Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that the Court is to give greater weight to this consideration than that set out in (2)(a).

1. Section 60CC(2)(b) requires the Court to focus upon the need to protect the children "from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence". Similar or related considerations apply in respect to section 60CC(3)(ca) and section 60CC(3)(j).

2. Neither party made allegations that the other had engaged in or subjected the children to conduct that could be regarded as falling within this consideration. In fact, it was noted in the Child Responsive Program Memorandum that "the children impressed as being much loved and well cared for by both their parents".[4]

   [4] Exhibit 1 at paragraph 25.

3. The Court notes and agrees with the father's submission that:

   Fortunately domestic violence is not a relevant consideration in these proceedings. There is no reference to it by the Family Consultant as having any significance in these proceedings. Neither party is seeking any orders to protect the children from alleged violence.[5]

   [5] Father’s written submissions.

4. There was, however, a precautionary note in the Child Responsive Program Memorandum where the family consultant warned that "the greatest risk to the children is the ongoing acrimony and tension between the parents."[6]

   [6] Exhibit 1 at paragraph 25.

5. Senior counsel for the mother argued that the family consultant’s warning was particularly significant and that if orders were made, as sought by the father, there would be ongoing acrimony, tension and conflict between the parties to the point that it presents a risk of psychological harm to the children. In that respect, reference was made to paragraph 23 of the Child Responsive Program Memorandum which stated that:

   The co-parenting relationship is very poor and is in danger of deteriorating further. The parents’ communication is primarily through text messages, emails and through their solicitors. It appears that neither parent trusts the other and they are concerned that any conversation they may have with each other might get twisted and used in court proceedings.

6. Reference was also made to a number of text messages which have been exchanged between the parties which are set out in Annexures I, K, L and M of mother's affidavit filed 9 September 2015. It was not suggested that those texts were threatening, abusive or contained offensive language. Nevertheless, without making any factual determination regarding the legitimacy or otherwise of the complaints referred to in those text messages, they are reflective of quite significant discord between the parties in respect to the day to day care of the children, including in respect to clothing, cleanliness, punctuality for pickup and participation in extracurricular activities.

7. Of more concern is the fact that issues, which could objectively be regarded as readily solvable between parties, became escalated to the point where they were the subject of quite intense correspondence between the parties’ lawyers.

8. For instance, by letter dated 22 June 2015, the solicitors for the mother wrote to the solicitors for the father requesting advice as to whether he was "agreeable to the children participating in swimming lessons" in the following school term.[7]

   [7] Father’s affidavit filed 9 September 2015 at Annexure “D”.

9. That letter was met with a response from the solicitors for the father which included the following passage:

   Our client is not agreeable to the children being involved in swimming lessons next term. The children have never participated in swimming lessons during the third term of school because of the cold weather and the attendant illnesses it may bring.[8]

   [8] Ibid Annexure “E”.

10. By way of further communication on 30 of June 2015, the solicitors for the mother made further representations regarding the desirability of the children participating in extracurricular activities including C participating in acrobatics and gymnastics and B expressing a desire to play baseball after the end of the soccer season.[9]

    [9] Ibid Annexure “F.

11. The solicitors for the father responded with a complaint that the mother was enrolling the children in extracurricular activities in circumstances where it impacted upon the father’s time with the children.[10]

    [10] Ibid Annexure “G”.

12. By way of further example, on 1 July 2015 the solicitors for the father wrote to the solicitors for the mother. The second paragraph of that two paragraph letter read:

    We are instructed by our client that last Thursday when our client collected the children, it came to his attention that [D] was not wearing underpants. Please have your client ensure that the children are wearing underwear when they are collected by our client.[11]

    [11] Ibid Annexure “H”.

13. By way of response the solicitors for the mother acknowledged D’s non-wearing of underpants to be a concern and attempted to explain how the event occurred in the "morning rush of preparing the children for the day." An offer was also made to provide the father with spare underwear for the children "to prevent ongoing issues about the return of socks and underwear" between the households. The letter also responded to various complaints and made other complaints in respect to extracurricular activities, telephone communication and the children's nutrition. [12]

    [12] Ibid Annexure “I”.

14. The further reply from the solicitors for the father on 23 July 2015 to the solicitors for the mother, noted apparent resolution of the underpants issues and engaged in further exchange regarding the subject matter of extracurricular activity, telephone communication issues, children's nutrition and communication with other parents at school as well as raising issues in respect to the collection and return the children.[13]

    [13] Ibid Annexure “J”.

15. While matters concerning the care and welfare of children are never trivial, the fact that both parties felt compelled to engage lawyers to communicate on their behalf is a matter of concern. The exchange of correspondence is certainly reflective of the concerns which are expressed in the Child Responsive Program Memorandum.

16. Orders made by the Court in respect to parenting have prospective application. Section 60CC(2)(b) requires the Court to make orders with a view to protecting the children from, in this case, potentially, "psychological harm." That potential psychological harm is referred to in paragraph 25 of the Child Responsive Program Memorandum where the family consultant warned "that the greatest risk to the children is the ongoing acrimony and tension between the parents.”

17. The Court has therefore made orders with a view to attempting to minimise the extent of the ongoing acrimony, discord and conflict between the parties in respect to day-to-day parenting matters.

Additional considerations

Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. Counsel for the mother acknowledged that the Court should give appropriate weight to the fact that the children are relatively young children of preschool to primary school age. Nevertheless, reference was made to the fact that the Child Responsive Program Memorandum noted that B said that he wanted to spend more overnight time with his father[14] and C had described having sleepovers with her father as "the best".[15] Reference was also made paragraph 26 of the Child Responsive Program Memorandum which stated:

   [B] and [D] indicated very strongly that they would like to spend more overnight time with their father.

   [14] Exhibit 1 at paragraph 17.

   [15] Exhibit 1 at paragraph 18.

2. The Court accepts that it is of significance that both B and D have expressed a clear desire to spend more time with their father. The Court accepts that it is in the children's best interests for the amount of overnight time that they spend with their father to be increased, providing it does not adversely impact upon existing tensions between the parties regarding the day-to-day care of the children.

Section 60CC(3)(b)requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

1. Counsel for the father made reference to paragraph 25 of the Child Responsive Program Memorandum and noted that the Memorandum made no criticism of the way the children are cared for by either parent and that the family consultant had found that each of the parents’ relationships with the children to be warm and loving.

2. Counsel for the father argued that the acrimony that exists between the parents is not such that it has impacted upon the parent’s relationship with the children and, accordingly, that acrimony should not impact upon the amount of time that the children spend with their father.

3. In that respect, counsel for the father noted that the mother had agreed to increase the amount of time that the children spend with the father but argued that the mother's proposals were "at an unacceptably slow pace."

4. The Court accepts that the children have a warm and loving relationship with each of their parents and it is also encouraging that the children appear to have a close relationship with their respective grandparents.

5. The Court also accepts that the acrimony between the parents has not, at this point in time, impacted upon the children's relationship with each of the parents.

6. However, even in interim proceedings, the Court is required to have regard to such evidence that is available concerning the potential risk to children. In that respect, the Full Court in Deiter & Deiter[16] said that it is a task that "cannot be postponed until the last piece of evidence is given and tested, and the last submission is made...”[17]

   [16] [2011] FamCAFC 82 at [61].

   [17] See also George & George [2013] FamCAFC 182 at [21] and more recently Galloway & Duke [2014] FamCA 569 at [15], Dixon & Dixon [2014] FamCA 686 at [22] and Appleby & Appleby [2015] FamCA 138 at [5].

7. As noted, the risk that the Court has identified, in this case, is the ongoing deterioration of the relationship between the parents and the potential that the acrimony between them presents a real risk of psychological harm to the children in the future.

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.

1. Counsel for the father argued that the mother's proposals for the children spending time with the father are unnecessarily complicated and confusing and made the point in his written submissions that: "If a table is needed to explain [the schedule] to an adult there is no chance that young children could possibly follow this pattern day to day and week to week."

2. There is, with respect, merit in that submission and the Court has endeavoured to simplify the arrangements for the children spending time with the father, particularly during the school holiday periods. The Court has also sought to minimise the transportation issues which appear to have been quite a significant aspect of disagreement between the parties.[18]

   [18] Father’s affidavit filed 11 June 2015 at paragraph 25.

3. The father also argued, under this consideration, that the pace of increase in the time the children will spend with the father is far too slow to meet the needs of the children. While the Court has not accepted the argument of the father in respect to the amount of time the children are to spend with him, the increase in time that is specified in these orders will apply from the date that the orders are made.

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.

1. The father argued that the children have experienced no difficulty in the time they have spent with him and the Court should not accept as valid, the mother's concerns that the emotional and psychological well-being of the children will be adversely affected if they spend extended periods of overnight time with him.

2. On the other hand, senior counsel for the mother noted that the mother has been and remains the primary carer of the children and the children have been living with her in the former matrimonial home since separation. Senior counsel for the mother also referred to the fact that the Child Responsive Program Memorandum noted that "children appear to be coping well the current parenting arrangements."

3. Senior counsel for the mother argued that the Court has evidence before it which indicates that, on the one hand, the children are coping well with the current arrangements and, on the other hand, that the "ongoing acrimony and tension between the parents" presents a risk to the children. In that context senior counsel for the mother argued that the Court should take a cautious approach in terms of making any orders to increase the amount of time the children spend with the father.

4. The Full Court in Goode & Goode (supra) provides guidance as to the extent to which the Court should have regard to the children’s current circumstances in making interim orders. In circumstances where findings are not possible, the Court should look to less contentious matters “such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”[19] (Emphasis added)

   [19] at 80,901.

5. The phrase “the current circumstances of the parties and their children” is not to be taken as suggesting that the Court should apply a presumption of maintaining the “status quo” in interim parenting cases. That is clearly not the case. In that respect, the Full Court in Goode & Goode (supra) said that, even where there is a "status quo or well settled environment", the Court’s task must nonetheless "follow the structure of the Act". However, as noted by the Full Court:

   …That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests.[20]

   [20] at 80,902.

6. Accordingly, it is entirely proper for the Court, when considering the factors set out in section 60CC, to also have regard to “the current circumstances of the parties and their children”. That is not to say, of course, that those circumstances are the only consideration.

7. As noted, the children are currently living with the mother who is their primary carer in the former matrimonial home and are spending some time, including some overnight time, with the father.

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. Counsel for the father argued that this consideration was not relevant.

2. Nevertheless, it was noted that the round trip between the father's residence and that of the mother is approximately 90 minutes. While there was no direct evidence of peak hour travel, it appears that the non-peak hour travel time between the father's residence and the children's school and preschool is in the order of approximately 35 to 40 minutes. It was accepted that school drop-offs and pickups are likely to be affected by peak hour traffic. Indeed, a number of the text messages referred to above were sent in the context of the father being held up in traffic.

3. This travelling time is also relevant to where the children participate in extracurricular activities, although, it may well be the case that travelling to such events does not involve peak hour travel.

4. The Court has had regard to the travel time that the children are currently subject to, which was aptly described in the father’s written submissions as being such that "during the week it is really a case of having a say goodbye to the children before they have really finished saying hello.”

5. Accordingly, the Court has removed one of the midweek days that the children are to spend with their father and replaced it with an additional overnight stay every second weekend. This is intended to have the effect of decreasing the amount of travelling time for the children as well as providing for the opportunity for an additional overnight stay with the father.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

1. The affidavit material filed on the behalf of the father contained references to his opinion that the mother suffers from depression. The mother denied that assertion.

2. In turn, in paragraph 20 of the Child Responsive Program Memorandum, the family consultant referred to the mother expressing her opinion that the father suffers from a "narcissistic personality disorder". Counsel for the father noted that the mother's opinion is not that of the expert and should be disregarded.

3. There was no evidence before the Court that suggested that either of those respective opinions of the parties in respect to the other is justified and the Court makes no finding regarding that consideration.

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

1. Counsel for the father argued that this consideration is not relevant. However, the Court finds that the age of the children is highly relevant. In particular, one child is of primary school age, one child is in kindergarten and the other child attends preschool.

2. Currently, and to the credit of both parents, the children appear to be coping well with the separation. In the words of the family consultant, B "presented as bright, chatty and friendly."  C "impressed as being somewhat shy, but, she was easy to engage in discussions" and "seems to enjoy her time with both parents." D "indicated that she loves both her parents and enjoys spending time with them.”

1. As previously noted the family consultant reported that:

   The children impressed as being much loved and well cared for by their parents. In general, their relationships with each parent appears to be warm and loving.

   And further,

   The children appear to be coping well with the current parenting arrangements.

2. It would be indefensible for the children who, currently appear to be doing so well, to become embroiled in this litigation and the consequent conflict, acrimony and tension that has developed between the parents.

3. At this stage the Court has before it only the Child Responsive Program Memorandum and no other expert evidence. Given the clear evidence of conflict, acrimony and tension between the parents and the advice of the family consultant of the potential risk that tension poses to the children, the Court will take a conservative approach in these interim proceedings. Having had regard to their vulnerable ages, the Court will refrain from making orders that significantly change the current arrangement for the children.

Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.

1. Counsel for the father argued that the ability of the parents to co-parent despite the acrimony that exists between them is an additional consideration for the Court in determining the appropriate orders in this matter.

2. In oral submissions, counsel for the father referred to the consent orders made on 22 September 2015 and, in particular, Orders 2 to 7 as reflecting that the parents are capable of co-operation in respect to the day to day care and arrangements for the children. Those Orders relate to telephone communication, travel with the children, communication with the school, transportation between sporting and extracurricular activities and attendance at those events.

3. Counsel for the father argued that the evidence is that the children have been only minimally exposed to that conflict and acrimony of the parties and that is in the context of broader family dispute over property.

4. In other words, counsel for the father argued that the acrimony between the parties is not such that the Court should restrict the time that the children spend with the father. In the father’s submission, "a party who is unreasonable in her dealings with the father of her children cannot expect this to be a reason to limit their time with him."

5. In these interim proceedings, the Court is not prepared to engage in a determination as to which parent has or has not been reasonable in their dealings one with the other. Without judging causation and/or fault, there is clear evidence of ongoing disputation and conflict between the parents regarding matters concerning the day to day care of the children. As noted, this is evidenced by the text messages and solicitors’ correspondence to which reference has already been made. The Court is also on notice through the Child Responsive Program Memorandum that the ongoing acrimony and tension between the parents presents a risk to the children.

6. Section 60CC(2)(b) is very clear in its language that a primary consideration for the Court is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As noted, there is no evidence of potential risk of physical harm to the children. However, there is evidence of risk of potential psychological harm and the orders which have been made have been structured with the aim of minimising the prospect of that occurring.

Parental Responsibility

1. Section 61DA relevantly provides:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Emphasis added)

2. In these interim proceedings, it is not possible to make a determination in respect to significant issues of fact. There is however common ground between the parties as to the acrimonious nature of the relationship between them. For instance, in letter dated 11 June 2015 from the solicitors for the father to the solicitors for the mother, reference is made to "the intractable nature of dispute between the parties on the issue of parenting."[21]

   [21] Father’s affidavit filed 9 September 2015 at Annexure “B”.

3. On the basis of the facts already referred to, including the text messages, and the content of the communication between the solicitors for the respective parties, in these interim proceedings, the Court cannot have confidence regarding the parties’ ability to consult with a view to making a genuine effort to come to a joint decision about major long-term issues in respect to their children.

4. In accordance with section 61DA(3), the Court considers that it would not be appropriate in the circumstances for the presumption to be applied in these interim proceedings. It is therefore unnecessary to consider whether the children should spend equal or substantial and significant time with each parent in accordance with section 65DAA. Accordingly, the Court has determined directly what orders are in the best interests of the children.

Ancillary matters

1. The father sought orders that an Independent Children's Lawyer be appointed to represent the interests of the children. In view of the findings that the Court has made regarding the potential risk that the level of conflict, discord and acrimony between the parties presents, the Court agrees that such an order is appropriate

2. The Court notes that the parties have agreed that it is appropriate for a single expert to be appointed pursuant to Part 15.5 of the Rules to provide a report in respect to the parenting issues. There has been some discussion between the parties regarding the appropriate timing of such a report. The Court notes that these proceedings are at a relatively early stage and it may well be that the parties would prefer to obtain such a report at a point that is closer to the final hearing date. The Court would be willing to facilitate that approach.

3. Finally, the mother sought orders for the parties to attend counselling. Such an order has been opposed by the father. In those circumstances, there would be little utility in compelling the father to attend counselling if he did not do so on a voluntary basis. Accordingly, the Court will not, in these interim proceedings, make such an order.

4. The Court notes the suggestion of the family consultant that the parties consider attending a parenting after separation course as noted in his report. That course of action is commended to the parties. Otherwise, the Court will leave any further recommendations regarding the parties attending counselling to be a matter to be further considered when the report of the single expert is obtained.

Conclusion

1. It is noted that the cautious approach adopted in this matter and the reluctance to significantly change the present circumstances of the children’s living arrangements is primarily as result of the Court’s concern about the potential for the acrimony and tension between the parents presenting a risk of psychological harm to the children. Whether that risk eventuates will, in large, be determined by the conduct of the parents.

2. The Court trusts that the parents will reflect upon these reasons and reassess the way that they have engaged one with the other. The manner and content of future communication between the parents will very likely be a significant issue for the Court to consider when it comes to making final parenting orders.

3. For the reasons set out above, I make the Orders set out at the commencement of this judgment.

I certify that the preceding night-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 11 November 2015.

Associate:

Date:  11 November 2015