C and C (No.1) - [2003] FMCAfam 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C (No.1)

[2003] FMCAfam 61

FAMILY LAW – Children – interim residence – best interests of children.

Family Law Act 1975, s.68(F)2

Cowling v Cowling (1998) FLC 92-801

Applicant:

M L C

Respondent:

L J C

File No:

PAM187 of 2003

Delivered on:

3 February 2003

Delivered at:

Parramatta (by video link from Wollongong)

Hearing Date:

31 January 2003

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms J. Vincent

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr M. Kearney

Solicitors for the Respondent:

Georgiadis & Baker

ORDERS

Pending further Order:

That (“the children”) T E C born 15 November 1994 and R A C born 13 June 1996 live with the mother.
That the children have contact with the father as follows:
(a)Each weekend from 4.00 pm Friday to 4.00 pm Sunday.
(b)For one half of each school holiday period being the first half in years ending in an even number and the second half in years ending in an odd number. School holidays start at 10.00 am on the Saturday immediately after school has finished and conclude at 2.00 pm on the day before the children return to school.
That the father shall collect the children from the mother’s home at the commencement of contact AND the mother shall collect the children from the father’s home at the conclusion of contact.

IT IS FURTHER ORDERED:

That the applicant father file and serve an amended application within seven days.
That the respondent mother file and serve an amended response within a further fourteen days.
That the matter be listed for further mention before me at 9.45 am on Thursday 13 February 2003.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM187 of 2003

M L C

Applicant

And

L J C

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

The applications

M C (“the husband”) filed an application on 17 January 2003 for interim parenting orders.
He proposed that the parties' two children, T E C born 15 November 1994 and R A C born 13 June 1996 live with him. The orders he proposed for the children’s contact with their mother are as follows:
1.That, pending further order, the children have contact with the mother as follows:
(a)   Each weekend from 6.00 pm Friday until 6.00 pm Saturday (except during school holiday periods).
(b)   For one half of each school holiday period, by agreement between the parties and failing agreement then for the second half of each school holiday period commencing in 2003.
(c)    By telephone between 6.00 pm and 6.30 pm each Tuesday and Thursday, the mother to make such call to a landline number nominated by the father.
(d)   At other times by agreement between the parties.
3.For the purpose of contact in accordance with these orders, the mother collect the children from the father’s residence at the commencement of each contact period and the father collect the children from the mother’s residence at the conclusion of each contact period.
4.That the mother forthwith and no later than 24 hours from the making of these orders make the child T available for collection by the father at her place of residence.
L J C (“the wife”) filed a response on 31 January 2003. She also asks that the court make an order that she has interim residence of the parties' two children. During the course of the hearing, her counsel confirmed that her proposal was that the husband would have contact with the children each weekend. If he obtained an interim residence order then she sought interim contact in similar terms in her favour.
Although the proceedings are about two children, T and R, it is important to understand that they have a half sibling, S H who has lived with them all of their lives. S is the wife's child by her first partner from who she separated in 1992. S is 13 years old and since separation has continued to live with her mother.
I heard this matter on Friday last, in part because the list was busy, but also because I welcomed the opportunity to reflect on the complexities of this particular case, I reserved my decision. This is an unusual matter and I have found the opportunity to reflect on it has been worthwhile.

Background facts

The parties married on 6 November 1993.
Upon their marriage, they started to live together. Throughout the whole of their marriage S lived with them.
Prior to the children's birth, both parties worked full-time. The wife stopped work shortly before T was born. When she was about 6 months old, the wife returned to work again. She took leave not long before R was born and when R was not quite 6 months old, she returned to work. Once the wife returned to work, the husband's mother, M C, became substantially involved in the children's day to day care.
The husband works in the print trade and the wife is a nurse. Their work facilitates compatible working arrangements in the sense that that the husband worked in the morning and the wife worked in the afternoon.
M C[1] identifies the arrangements that were put in place for her care of the children:
From the time L returned to work in about May 1995, I am aware that she often worked afternoon/evening shift. I am aware that M worked morning shifts and is required to leave home prior to 6 am in order to commence work. As a result, a pattern developed whereby T would usually stay overnight at my home on weekdays, returning to her parents' home on weekends. M would come to my home, usually about 3 pm after finishing work and spend time with T. Sometimes he would care for and play with T at my home, but other times he would take T out with him. However, he would usually return T to my home every night. He would return to his home for dinner leaving T with me. I would put her to bed and check on her during the night if necessary.
After R was born, L again returned to work and from approximately October 1996, he also commenced to stay at my home on most weekdays, including overnight. M continued this pattern of visiting the children at my home from approximately 3 pm each day when he finished work and spent time with them, including attending to feeding and changing them both and putting them to bed as required. He continued to stay at my home until dinner time, when he would return to his own home living with L. Both children stayed with me.
[1] Paragraphs 5 and 6 of her affidavit
The husband worked from about 6.00 am until about 2.30 pm, five days per week. He still does. The wife worked three or four days per week after the children were born. She also took leave to help the children settle into preschool and took time off during school holidays so that when the children were not cared by M C, she was able to take care of them herself.
Once T started pre-school in 1999, she spent less time at her grandmother's home than she previously had. For the first few months of preschool T attended one day each week, for the next three or four months she went two days a week and thereafter three days each week until she started school. M C corroborates that T[2] did not stay at her home on the nights before she attended pre-school. The same situation developed for R so that by the time he started in school in 2001 Mrs C was involved, to an extent, in the children's care during school holidays, but her involvement in the children's care during the week had all but disappeared.
[2] Paragraph 7
When the children were at school, the husband maintained his five days a week working pattern, starting work at about 6 am and finishing at 2.30 pm. Obviously this meant that he had to leave home before 6.00 am if he was to arrive at work on time. The wife's work pattern was essentially Mondays, Tuesdays and Fridays from 12 noon until about 9.30 pm. She was at home on Wednesdays and she worked a longer day on Thursday, starting at about 8.00 am.
Thus, from the children's point of view during the week when they awoke their father had already left the house. The wife got them up, prepared them for school and took them to school. She regularly participated in classroom and school activities because she did not start work until later in the day.
On those afternoons when the wife was at work, the husband collected the children from school and cared for them until the wife arrived home. I infer that on some evenings, given their ages, the children were already in bed and asleep by the time the wife arrived home. On the weekends the parties shared the children's care. The effect of the arrangements is that the mother had their sole care in the mornings, was involved in school activities and shared their afternoon care on Wednesdays. The father had the care of the children after school other than when it was shared with the mother.
These arrangements continued until August 2002. By the middle of 2002, the wife had become quite seriously depressed. She was unable to work during August and M C, generously stepped in and took on a substantial role in the children’s care.
In paragraph 14 of his affidavit, the husband identified the nights that the children stayed with M C between 1 August 2002 and 10 September 2002. They slept overnight at their grandmother’s home 22 out of a possible 31 nights in August and 8 out of a possible 10 in the beginning of September. This is interesting in two respects. Firstly, it reveals how significant the wife's depression was: that she was unable to attend work and also unable to care for the children. Secondly, that because the wife was not able to care for the children, the husband needed his mother to take the children for almost the whole of August at night and for all but two of the first ten days in September.
On 11 September 2002 the wife voluntarily admitted herself to C Hospital. She did so on medical advice that she was depressed. She remained in hospital until 8 October 2002. Other than Saturday overnight leave when she went home, the wife did not want to see the children and made it clear that the pressure of marriage, work and children overwhelmed her. While the wife was in hospital the husband spent as much time with her as possible during which time his mother took care of the children.
Upon her release she immediately returned to work, indeed went to work on 9 October 2002. School resumed on 14 October 2002 and the pattern of the children's lives appears to have returned to that which existed prior to her becoming ill at the start of August. That is the wife caring for them in the mornings and the husband in the afternoons. Again, she became depressed and on 8 November 2002 she admitted herself again to C Hospital. She remained in hospital for five weeks and other than Saturday night leave two weeks into her stay, she had little to do with the children during her hospitalisation.
Upon her discharge on 12 December 2002 the parties continued discussions they had been having about the state of their marriage and its future. The wife went to see her parents and with the benefit of distance, decided that her marriage to the husband was at an end. It had obviously been unhappy for some time. Unfortunately, the wife had been on the receiving end of telephone calls from Mr C and his wife. Both Mr and Mrs C had attended at her home. Mr C alleged that the husband was having an affair with Mrs C. No doubt this put her under more pressure. The husband denies he had been having an affair with Mrs C and my findings do not suggest that he has been. The unchallenged evidence is however that Mr C has indeed been making approaches to the C household alleging that an affair has been going on between Mr C and Mrs C. A difficult situation for parties to a marriage that was already under considerable pressure.
At separation, on 19 December 2002 the wife packed her and the children’s bags and told the husband she was leaving. He did not oppose her departure with S but refused to allow her to take the younger children. The parties argued and were unable to agree about what should happen with the care of these children. A most unfortunate scene developed where there was a tug-of-war in effect, during which T was pulled between her parents. S called the police. The police officers spoke to the children and asked them whether they wanted to stay with the husband or leave with their mother. They organised that the wife would leave the home with T and R would stay with his father. There is no issue that S should be with her mother.
Since then, the father has remained in the home with R. The wife has been staying with T and S at her parents' home at K. Neither party has let the other parent have both children since separation. The children have effectively been held hostage one for the other and hence the younger children have not seen the other nor their other parent. Because neither agrees with the other’s arrangements the parties now invite the court's adjudication in relation to the younger children’s arrangements.

Relevant Law

Interim parenting proceedings do not determine the long term rights and obligations of the parties and their children. Accordingly, the Court should not ordinarily be drawn into matters of contentious matters of fact, or matters relating to the substantive merits of each party’s case.
The principles that determine the adjudication of interim parenting matters are reflected in a long line of authority; most recently stated in Cowling and Cowling (1998) FLC 92-801. The Full Court of the Family Court there identified a five-element process for the determination of interim proceedings for residence and contact.
Firstly, the overriding principle is that the best interests of the child are the paramount consideration.
Next, given the circumscribed nature of interim proceedings, the orders made should maintain and promote stability in the child’s life pending the final determination.
Next, where it is clear that the child is living in a well settled environment, the child’s stability will usually be promoted by continuing these current arrangements. If the evidence establishes there are strong or overriding reasons relevant to the child’s welfare whereby in that environment the child will be at risk, then the court should not make an order that leaves the child in a situation of serious risk. In deciding whether a child is living in a settled environment, the court should examine and assess,
a)the wishes, age and level of maturity of the child;
b)the current and proposed arrangements for the day to day care of the child;
c)the period during which the child has lived in the environment;
d)whether the child has any siblings and where they reside;
e)the nature of the relationship between the child, each parent, any other significant adult and his or her siblings; and
f)the educational needs of the child.
Next, the weight given to the importance of the current living arrangements is to be determined by reference to the interests of the particular child. In deciding what weight should be given to the current status quo, the court may examine the circumstances by which the current status quo has been attained, the duration of the current arrangements and delay. This list is not exhaustive.
The court will undertake a limited evaluation of the matters set out in section 68F(2) of the Family Law Act in circumstances where the evidence does not establish that the child is living in a settled environment.

Conclusion

Ms Vincent emphasised that there are a number of features of the husband’s proposal, which make his application for interim parenting a strong one. These include that he continues to live in the family home; that the children have friends nearby and in his care, T and R would both be able to continue to attend T Christian School. T has attended there since 2001 and R since 2002. As well, the children would be able to continue to attend S at Parramatta.
Prior to separation, the children always attended fellowship meetings with their parents on Sunday and attended Sunday school at Parramatta. T has recently become a junior soldier and is also a member of the S Junior Choir. Choir practice is on Wednesdays.
The difficulties that the husband's case has by contrast to its strengths are important. It is his proposal that the children's paternal grandmother would resume her significant role in the children's care. Ms Vincent submitted that I would accept that her substantial care of the children in the afternoons and evenings continues a well settled arrangement. Hence the husband’s proposal maintains the relevant well settled environment described in Cowling (supra). I do not agree that there is a well settled environment whether or not the husband’s mother is involved in the children’s care. Prior to her illness in August 2002 the wife had been intimately involved in the children’s daily care and the children had always lived with their sister – the absence of both features satisfies me that the father’s proposal does not maintain the pre-separation environment. Clearly the mother’s proposal does not maintain significant features of the children’s environment pre-separation and thus I must determine this matter by reference to a limited evaluation of the relevant s.68(F)(2) factors.
The arrangement whereby the husband’s mother resumed substantial care of the children in August 2002 was a short-term arrangement that occurred because the children's mother was ill and the husband was not in a position to care for them during the week. There is no evidence that either party contemplated that the husband's mother would continue her care of the children after the wife regained her health. Her involvement was a limited, albeit an important stop gap measure. To a very significant degree, this arrangement meant that the children were in the care of neither party, something that causes me significant concern if it were to be allowed to linger longer than is necessary.
When I pressed the husband’s solicitor for a precise indication of the number of overnight stays that the children would be cared for by the paternal grandmother as compared to the time that the children would be cared for by their father were he to be successful on his application for interim residence Ms Vincent indicated to me that the outcome would be that the children would stay overnight with their grandmother at her home half the time. Yet the evidence suggests that the children would be more substantially in Mrs C's care. Akin indeed to the August/ September 2002 arrangements. When I consider paragraphs 5 and 6 of Mrs C's affidavit, they were in her care night after night during the week living more at her home than in their parent’s home. That is to me a less satisfactory outcome than a proposal that would have the children more substantially in the care of their parents.
An important factor that weakens in the husband's case is that S lives with the wife. Mr Kearney highlighted that there was virtually no mention of S in the submissions made in support of the husband’s case. It was a telling omission. These children have lived all of their lives with their half-sister. She is about five years older than T. One of the factors that Cowling (supra) emphasises the court must consider is the separation of siblings. The evidence reveals that the three children are close and that when needed S has willingly helped the parties supervise her younger siblings. Unfortunately the husband does not appear to recognise the strength of the children's attachment to each other and with respect to him, gave it less weight in the presentation of his case than I felt was warranted. Although the husband claimed that the children wanted to live with him I am not satisfied that I should come to this conclusion. The wife gives evidence to the same effect. Because of their ages and their parent’s recent separation their wishes, if they have may not yet be well formed. In any event I cannot resolve this controversy and proceed on the basis that the children do not have wishes in relation to interim residence that the court should give weight to.

I turn now to examine the wife’s proposal. She proposes that all three children will live with her at her parent's home at K. Her parents moved to Brisbane about 5 years ago and returned to live at K in 1999. Whilst the children have stayed there for short breaks they have never lived in their maternal grandparents home for any length of time. Their home is large and would provide adequate accommodation for the wife and all the children. The wife has made arrangements that T could attend B Public School where, if she is successful, this is where R will attend. She intends to resume work in March 2003 at N Private Hospital.
The obvious weaknesses to her case are that, if she is successful, the two younger children must change the home that they live in, change the schools they attend, change the place where they worship and lose contact at least in the short-term, with their friends that they have established in Sydney. These are important factors.
The other factor that I have considered carefully is her mental health. It is only in the latter part of 2002 that for two periods of approximately four weeks each, she voluntarily admitted herself to hospital because she felt she could not cope. As I have already indicated, she was unable to cope in the context of an unhappy marriage, substantial care of the children and working.
The evidence does not suggest that her depression is materially impairing her capacity to cope with the responsibilities of parenting or of work now that she has received treatment. She has the full support of her parents and importantly one of the stresses that resulted in her hospitalisation in 2002 is resolved. By that I mean the parties have separated and the daily struggle of living in a marriage that had become unhappy is no longer a feature of her life. On the evidence as presented to me I am satisfied that the wife is sufficiently well to manage to care for the children on a day-by-day basis into the indefinite future.
In any interim parenting proceedings different factors attract different weight. No two cases are alike. In some cases particular environments is the critical factor that results in the court determining that children should continue to live in the same house and attend the same school pending the trial. As the trial judge did in Cowling (supra). In other cases it is the people in the children's lives that are more important than the place they live or receive their education that is the most important element to retain. This is a case where I am satisfied that I must emphasise the children's relationships. Separating the younger children from their older half-sister is an outcome that is likely to be distressing for them both in the short term and potentially also the long term. The damage that could be done to the children in the long term, even if this outcome is more or less only on a temporary basis, is potentially significant.
When I compare the two competing proposals the wife's proposal involves the children's care by a parent more substantially than the husband’s does. Both parties rely on others to assist them in the care of the children. However, the husband must rely more substantially on the care that will be given by his mother than the wife must rely on the assistance that the wife will receive from her parents. She and the children will live in the one house, rather than moving between houses as the husband proposes. Whilst I am satisfied that the children enjoy good relationships with all of their grandparents and that their grandparents can competently attend to their needs, the children are entitled to their parents’ care and attention to the greatest extent possible. Parental separation is a time of great uncertainty for children, ensuring that these children can have as much time as possible in their parents’ care should ameliorate some of the unhappiness and dislocation that they are likely to feel.
Weighing in favour of the wife's proposal as compared to the husband's proposal is when I factored in the element of regular contact the children's arrangements in their father's care become fundamentally unsettled. During the week they will be living with the husband's mother and at times also with the husband, sharing weekends with the husband and their mother. That is three separate sets of arrangements for each short period. In the wife's care it is only two, that is living together in the same home with their sister and sharing weekends. Because of the children’s ages continuity in schooling is not as critical as it usually is for older children. Nor are the friendships established in the first few years as enduring as those established by older children. Thus changing the place where the children go to school is less significant in this case than many others. I am comfortably satisfied that these young children need to have continuity of parental care and close relationship with their half-sister.
As I indicated on Friday during the course of submissions, I have found this a very difficult case. Ultimately, I am satisfied that the best interests of the children, which must of course be my paramount concern, will be given effect to by ordering that the wife have interim residence and that the children spend their weekends with their father. During weekends he can take them to assembly and they will be able to have time with their friends and paternal grandmother. Both parties agreed that the children would not be enrolled at school before today because they needed the court's decision before they could know where the children should attend school. The orders I make are to be given effect to immediately.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 5 March 2003