Callahan and Callahan (No.2)
[2012] FMCAfam 1114
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALLAHAN & CALLAHAN (No.2) | [2012] FMCAfam 1114 |
| FAMILY LAW – Children – parenting orders – interim orders – variation of earlier interim orders – best interests of the children – parental responsibility – equal shared parental responsibility. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA |
| Callahan & Callahan [2012] FMCAfam 459 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS CALLAHAN |
| Respondent: | MR CALLAHAN |
| File Number: | SYC 1855 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 September 2012 |
| Date of Last Submission: | 28 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sperling |
| Solicitors for the Applicant: | Southern Waters Legal |
| First Respondent: | In person |
| Solicitors for Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS UNTIL FURTHER ORDER
All earlier parenting Orders are vacated.
That the father and the mother shall have equal shared parental responsibility for the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005.
That the children [X], [Y] and [Z] live with the father.
That the children spend time with the mother during school terms as follows:
(a)from after school Friday until before [sport omitted] on Saturday morning each alternate week or if there is no [sport omitted] until 6:00 pm;
(b)from after school Friday until 6:00 pm Saturday each other week in respect of the children [X] and [Y] and until the commencement of school on Monday in the case of [Z]; and
(c)from after school Tuesday until before school on Wednesday each week.
That when the children are spending time with the mother the father be restrained from attending the children’s sporting/extracurricular activities that fall during times when the children are in her care.
That when the children are spending time with the father the mother be restrained from attending the children’s sporting/extracurricular activities that fall during times when the children are in his care.
That both parents be permitted to attend the children’s sporting/extracurricular semi and grand final games.
That the children spend the following additional time with the mother:
(a)for each child’s birthday, [dates omitted] from 3:00 pm/after school to 6:00 pm;
(b)on the mother’s birthday [date omitted] from 3:00 pm until 6:00 pm;
(c)on Mother’s Day each year from 9:00 am until 6:00 pm; and
(d)from 9:00 am Christmas Eve 2012 until 12 noon Christmas Day 2012.
That the children spend time with each parent during school holiday periods as follows:
(a)For one half of all the mid-term two week holiday periods as agreed between the parties and failing agreement the first week with the father and in the second week with the mother AND for the purpose of giving effect to this Order the children will spend time with the mother from 6:00 pm on Saturday 29 September 2012 until 6:00 pm on Sunday 7 October 2012;
(b)For the Summer school holiday period the children will spend from 9:00 am on 2 January until 6:00 pm on 16 January in each year with the mother and the balance of the time with the father; and
(c)At all other times as the parties may agree in writing.
That the children spend the following additional times with their father:
(a)for each child’s birthday, [dates omitted] from 6:00 pm to 8:00 pm;
(b)on the father’s birthday, [date omitted] each year from 3:00 pm/after school until 6:00 pm;
(c)on Father’s Day each year from 9:00 am until 6:00 pm; and
(d)from 12 noon Christmas Day 2012 until 6:00 pm Boxing Day 2012.
That for the purposes of changeover when each party is spending time with the children that parent or his or her representative will collect the children from the children’s schools at the commencement of their time and that at the conclusion of their time the children will be returned to school and the other parent shall not be present.
In the event that the children are not at school, changeover shall occur out the front of [omitted] Shops, [address omitted].
That the mother shall ensure that her partner Mr S not be present at changeovers when the children are not at school.
That the father and the mother be restrained from unilaterally enrolling the children in any sporting or extracurricular activity.
That the father and the mother must:
(a)consult one another by email prior to enrolling the children in any extracurricular activities; and
(b)ensure that the children participate in no more than 3 extracurricular activities at any one time; and
(c)ensure that both parties consent prior to the children or any of them participating in and commencing any extracurricular activities.
That the mother and father ensure they speak in a pleasant manner to one another in the presence or hearing of the children.
That the mother and the father ensure that the children are not exposed to any adult material including pornography of any kind whilst the children are in their care.
That the mother and the father be restrained from discussing the following in the presence and hearing of the children and shall ensure that no third person discusses the following in the presence or hearing of the children:
(a)these court proceedings;
(b)any dealings that the children and/or the parents have with Mr F, child psychologist;
(c)any dealings or discussions that the children have with the Independent Children’s Lawyer.
That the father and the mother will ensure that when the children spend time with the other parent they attend with any clothing, books, school papers, homework and/or equipment which they require for school or extracurricular activities.
That each party ensure that the items that were sent with the children at the changeover are returned at the conclusion of the time that the children are spending with that parent.
That neither party will denigrate or encourage a third party to denigrate the other parent in the presence or hearing of the children.
That the mother shall ensure that the children are not left alone in the sole care of her partner, Mr S.
That each parent will inform the other parent as practicable after they have become aware of any medical condition or ailment from which the children are suffering.
That each parent will inform the other parent by email within 24 hours of their becoming aware of any medical appointment that the children may attend from time to time.
That in the event that either parent wants to take the children outside of the Sydney metropolitan area for more than 48 hours, the parent who wishes to travel will notify the other parent at least seven (7) days in advance of the proposed travel and provide the details as to the proposed destination, address and telephone numbers at which the children are to be contacted
That the parties are to communicate all day to day matters relating to the children by way of sms text message to each other’s mobile telephone number.
That the parties are to communicate all major decisions relating to the children by way of email.
That the parties are to ensure that decisions and communications made relating to the children are not relayed through the children but rather that the parents together make these decisions and communications in direct consultation with the other parent in writing.
That the mother and the father ensure they follow all recommendations of [X]’s treating specialist or specialists regarding the treatment of his ADHD.
That both parents be entitled to attend any medical appointments for the children.
That within seven (7) days of the date of these Orders both parents do all things necessary to register and enrol in the ‘Parents not Partners” program at Interrelate [omitted] and provide the Independent Children’s Lawyer with confirmation as to their registration and enrolment.
FAMILY REPORT
That pursuant to subsection 62G(2) of the Family Law Act 1975 the parties, the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005, the paternal grandparents and the mother’s partner Mr S attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of this Court, on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues:
(a)whether the children are at risk of being exposed to any physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence;
(b)any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(c)the relationship between the children and each other and with each of their parents and any other relevant person;
(d)the willingness and ability of the children’s parents to facilitate, encourage and promote a close and continuing relationship between the children and the other parent;
(e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(f)the capacity of each parent or any other person to provide for the needs of the children, including emotional, intellectual and educational needs;
(g)the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (or any other relevant person);
(h)the effect on the children of any family violence to which they may have been exposed;
(i)the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to each parent’s current and future capacity to:
(i)implement such an arrangement; and
(ii)communicate with each other and resolve difficulties that might arise;
(j)the mental/emotional state of both parents in so far as it relates to parenting issues;
(k)the willingness and ability of each parent to provide for [X]’s special needs including the treatment of his ADHD;
(l)the special needs of the children including their participation in sporting/extracurricular activities;
(m)the extent of the parents’ involvement of the children in any conflict between the parties, if any, and further, the impact of such involvement upon any views expressed by the children;
(n)the effect on the children of different time arrangements for each child with each parent; and
(o)any other matter the Family Consultant considers relevant.
The Independent Children’s Lawyer is to send copies of all the Court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.
For the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the Court file and all documents produced under subpoena once leave to inspect has been granted to at least one other party in the matter.
The parties and their legal representatives are to confirm with the Family Consultant no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
The Independent Children’s Lawyer is granted leave to photocopy the subpoenaed material for the purpose of providing a copy of the subpoenaed material to the Family Consultant.
The Family Consultant is to liaise with Mr F, child psychologist, regarding his therapy with the family.
FAMILY THERAPY
The father and the mother are to make all necessary arrangements for the children to continue attending for family therapy with Mr F, child psychologist at [omitted] Child and Adolescent Psychology Service, [address omitted].
The father and the mother are to share equally the costs of all family therapy provided by Mr F, child psychologist.
The father and the mother shall make the children and each child available to attend for family therapy sessions with the other parent and/or individually as may be required at the request of Mr F, child psychologist.
The father and the mother hereby authorise the Independent Children’s Lawyer to speak with Mr F, child psychologist, as to the progress of the children’s therapy with him.
The mother and father agree not to issue a subpoena to Mr F, child psychologist, to produce any documents relating to the family therapy provided.
That the Independent Children’s Lawyer be at liberty to provide Mr F with a copy of these Orders.
That Mr Craig F is at liberty to liaise with the Family Consultant writing the Family Report.
The parties are restrained from referring to family therapy and any alleged conversations with Mr F in their affidavits.
The Application is listed for final hearing at 10:00 am on Tuesday 25 June 2013 to continue to Friday 28 June 2013.
The Applicant must pay the Setting Down fee no later than 10 June 2013.
The parties must file and serve all affidavits upon which they seek to rely no later than 10 June 2013 and no affidavits will be accepted for filing after that date without leave of the Court.
The Independent Children’s Lawyer is granted liberty to re-list the Application before the Court on seven (7) days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Callahan & Callahan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1855 of 2012
| MS CALLAHAN |
Applicant
And
| MR CALLAHAN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is a further application for interim orders in respect of parenting issues involving the parties’ three sons, [X], [Y] and [Z], who are aged 15, 13 and 7 years respectively. The applications before the court virtually seek a complete rewriting of the earlier orders made as a result of the earlier interim proceedings[1]. The Independent Children’s Lawyer has very helpfully prepared a document headed “Interim Orders As Proposed By the Independent Children’s Lawyer” and the parties have very sensibly used that document, which is quite a comprehensive document, as a working document for the purpose of submitting proposed orders to the Court.
[1] Callahan & Callahan [2012] FMCAfam 459
A number of these orders are the subject of agreement and it is to the parties’ credit that they have agreed on so many of these orders. However, it is the matters that are not the subject of agreement that concern the Court today. I will make it clear that, as this an interim parenting application, the Court must still consider the objects of Part 7 of the Family Law Act 1975, which are set out in sub-section 60B(1) of the Act and the principles underlining those objects which are set out in sub-section 60B(2).
Section 60CA of the Act requires that the court regards the best interests of the child or children concerned as the paramount consideration. The court determines what is in a child’s best interests by considering the matters set out in sub-section 60CC(2) and (3) of the Act. The objects and principles contained in section 60B have been held to provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case, as the Full Court of the Family Court held in Goode v Goode[2] at [10].
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
When making a parenting order, the Court is required by sub-section 61DA(1) of the Act to apply presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for the children. The presumption does not apply in cases of child abuse or family violence. It may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility. If the Court has already made an interim parenting order, section 61DB provides that when making a final parenting order, the Court disregards the allocation of parental responsibility made in the interim order.
That said, the Court also looks at the provisions of section 65DAA of the Act relating to circumstances where a court has made an order that the parents should have equal shared parental responsibility for the children, whether it is in the children’s best interests and reasonably practicable for the parents to have equal time with the children. Or, if the Court decides that that is not either in the best interests of the children or reasonably practicable, whether it is in the children’s best interests and reasonably practicable, for the parties to have substantial and significant time with the children.
Suffice it to say that I have considered all of these matters when making this decision. I have listened carefully to the submissions put by counsel for the Applicant, by the Respondent in person and by the solicitor for the Independent Children’s Lawyer. What I intend to do is concentrate on those orders that are in contention, rather than those orders which are the subject of agreement. There is little to be gained by reading out to the parties at this stage orders upon which it appears everyone agrees. Because the orders to be made are so comprehensive, it is, in my view, appropriate to vacate earlier parenting orders so the parties have the one document setting out interim parenting orders to which they can refer.
The parties have some controversy about a proposed order 3 which, in the form in which it is set out by the Court, will become order 4 which, in its present form, provides that the children spend time with the mother during school terms as follows:
a)From after school Friday until before [sport omitted] Saturday morning each alternate week or 10 am if there is no [sport omitted] and;
b)From after school Friday until 6 pm Saturday each other week and;
c)From after school Tuesday to before school on Wednesday each week.
Neither the Applicant nor the Respondent agree to the order, at least in that form. The Respondent is of the view that the existing orders are sufficient. The Applicant agrees with the form of the order but not the details. It is her proposal that order 3(a) would provide that the children spend time with her during school terms from after school Friday until before [sport omitted] Saturday morning each alternate week or to 6 pm if there is no [sport omitted]. It also her view that the proposed order 3(b) should provide that the children, [X] and [Y], spend time with her from after school Friday until 6 pm Saturday each other week but that the youngest child, [Z], should remain with her until the commencement of school on the Monday. She has no issue with proposed order 3(c).
As I said, the father is of the view that the existing order is sufficient and should be left until the availability of a full family report. The Independent Children’s Lawyer is of the view that in a case where there is a high degree of conflict between the parents and ongoing conflict, it is important for there to be clear rules for the children to follow and it follows that it is important for the children to travel as a group. Against this, whilst the mother agrees in respect of the two older boys, in respect of [Z], who is significantly younger than the other two, she believes that it is in his best interests for there to be a continuation of the substantial one on one time that he had with her.
I have considered those arguments. Basically, I am of the view that there is much to be said for the children being together with one parent or the other, although I think that there are some considerations applying to [Z] because of his relatively young age as opposed to the other two boys.
The orders that are proposed in the Independent Children’s Lawyer’s document as proposed orders 4 and 5 are mirror images of each other. They provide that when the children are spending time with a particular parent, the other parent be restrained from attending the children’s sporting or extra curricular activities that fall during times when the children are in that party’s care. That is agreed by the mother, opposed by the father. The reason given by the Independent Children’s Lawyer is that there is a need to minimise conflict between the parents and there has been a history of conflict between the parents, regrettably taking place on some occasions in the presence or hearing of the children.
The father, however, opposes this restriction, saying that he has been heavily involved with the children’s sport since the separation or certainly [X] and [Y]’s sport, and it would be very unfair to him if he were not able to attend those activities. That may well be the case. However, these are interim proceedings. I have mentioned during these proceedings that the best interests of the children concerned are the paramount consideration and by being the paramount consideration, as required by the law, that must take precedence over wishes or desires of the individual parents. I am satisfied that it is in the best interests of the children that conflict between their parents, certainly in their presence or hearing, should be minimised and for that reason, I propose to make those orders in those terms.
The next set of orders that have been the subject of some submission are the orders numbered 7 and 9 in the Independent Children’s Lawyer’s document. Order 7 provides that the children spend the following additional time with the mother:
a)For each child’s birthday, [dates omitted], from 3 pm or after school till 6 pm;
b)On the mother’s birthday, [date omitted], from 3 pm until 6 pm;
c)On Mother’s Day each year from 9 am until 6 pm;
d)From 9 am Christmas Eve 2012 until 12 noon Christmas day 2012.
The order proposed and numbered 9 is more or less a mirror image of order 7 and it provides that the children spend the following additional times with their father:
a)For each child’s birthday, [dates omitted], from 6 pm or after school to 8 pm;
b)On the father’s birthday, [date omitted], each year from after school 3 pm until 6 pm;
c)On Father’s Day each year from 9 am until 6 pm;
d)From 12 noon Christmas Day 2012 until 6 pm Boxing Day 2012.
The father has indicated that he agrees with those proposed orders. The mother, however, seeks that orders 7(d) and (9)d should be transposed, or, as her counsel said, swapped, so that the children would spend time with her from 12 noon on Christmas Day until 6 pm on Boxing Day, and they would spend time with their father from 9 am on Christmas Even until 12 noon on Christmas Day.
Counsel for the Applicant mother indicated that that was his client’s wish, but did not provide any other reasons of any significance to support that proposed change, and in my view, in the absence of some particular reason, I do not see why it is necessary to make that change. It would also be my view that in 2013, when hopefully there would be final orders in place, a reverse arrangement should apply, but for Christmas 2012, in my view, the orders proposed for Christmas Eve, Christmas Day, Boxing Day by the independent children’s lawyer should remain as they are.
The next area of contention is in the order numbered 8 on the ICL’s document, providing that the children spend time with each parent during school holiday periods. The father basically agrees with the proposal. The mother raises two issues. First, the proposed sub-order (a), which says:
For one half of all the mid-term two-week holiday periods is agreed between the parties, and failing agreement, the first week with the father and then the second week with the mother.
She raises the issue that at this time, the first week of the school holidays has almost been completed. The mother wishes to ensure that for the second week of the school holidays, commencing on Monday, the children are, in fact, with her, and would go through until the end of the weekend. There is a slight administrative difficulty which has been brought to my attention by the Independent Children’s Lawyer and counsel for the applicant, in that the two elder boys are apparently out on a boat, and their phones are turned off. The difficulty is that unless they can be contacted, they will not be able to come into town so that the orders can be explained by the Independent Children’s Lawyer. That is an unfortunate administrative difficulty, but I propose to proceed at this stage on the basis that this matter will right itself, and I will make an order accordingly.
The second part of the order that has caused some contention provides for the summer school holiday period. The proposed orders is that the children would spend one block week with each parents at times to be agreed, and failing agreement, for the third week with the father and the fourth week with the mother. The week would commence on Monday at 9 am and conclude on the Sunday at 6 pm. The father agrees with that.
The mother’s proposal, however, is that there should be a specific two-week block of time from 2 to 16 January when the children are with her. The father is opposed to that at this stage, on the basis that he believes that it would be too much too soon; it might be difficult for the children to deal with that length of time. I am not so persuaded. It is not uncommon for this Court to make an order providing for a specific period of time in January each year. It gives certainty, and I am of a view that each child should spend time with his mother at that time, and they should spend time together at that time.
The balance of the orders are subject to agreement, with the exception of the proposed order 13, which provides that the father and the mother be restrained from unilaterally enrolling the children in any sporting or extracurricular activity. The mother agrees; the father does not. The father’s view, in his submission, was that he does not choose what the children do in respect of their sporting activity. That may well be the case. It would seem to me, however, that this proposed order is in line with, or perhaps complementary, to the orders requiring that one parent and not the other spend time with the children at a sporting activity during that parent’s time.
In view of the regrettably low level of communication between the parties at this stage, my view is that an injunctive order restraining each party from unilaterally enrolling the children in any sporting or extracurricular activity is desirable and in the children’s best interests at this time. This does not mean that they stop engaging in the activities that they are doing now, but if one child suddenly decides that he wishes to take up fencing, or steeple chasing, or motor racing, or marathon swimming, or whatever, then there does need to be some consultation between the parents. So I propose to make that order, noting the fact that it is not agreed to by the father.
It is noteworthy that orders 22 and 23 provide that each parent will inform the other parent as soon as practicable after they have become aware of any medical condition or ailment that the children are suffering from, and each parent will inform the other parent by email within 24 hours of their becoming aware of any medical appointment, that the children may attend from time to time.
Each party agrees to that, but it was put to me during the course of submissions this morning that the mother was unaware of proposed treatment, including a procedure to be given to the child [Y] in respect of a stomach ailment. This is not to say that the treatment is not appropriate, and indeed, on the evidence before me it appears that it is to be conducted by a recognised specialist in the area. It would seem, therefore, to be in his best interests.
But it was put that the mother was not aware of it until she read this in the affidavit. The parties have equal-shared parental responsibility; the mother should have been aware of that, and should have been made aware of that, and each party must inform the other party of anything important relating to their child’s health. A sniffle or a stubbed toe does not come within the purview of the orders, but a procedure for this nagging and quite worrying stomach ailment to which the court has been referred is something that both parents should be aware of, and in their child’s interests, should be cooperating on.
The orders propose significant detailed orders relating to the ordering of a family report, although the Court did make such an order on 29 August, although not in such detailed terms. However, I am prepared to concede that the detailed order for a family report, proposed by the Independent Children’s Lawyer and agreed to by the parties, is appropriate. The mother seeks one small addition, which will become a paragraph n to the order, which would involve the family consultant considering the effect on the children of different time arrangements for each child with each parent, and the final sub-order will consider any other matter that the family consultant considers relevant.
I note that certain other proposed orders are not now sought. There is a notation that appears on the ICL’s draft document. To me it is neither here nor there, and I can see no particular point in the Court noting that fact. If the parties are eligible for a Medicare rebate, well and good; if they are not, that is most unfortunate.
I would comment on another issue. The father has drawn the Court’s attention to a matter referred to in his affidavit about where it is alleged that the children attended a function for Mother’s Day, and the claim is that the boys’ maternal uncle required the two older boys to hand over their mobile telephones for the purpose of the visit. I have no independent evidence to allow me to make a finding of fact one way or another. It is well known in interim proceedings, as the Full Court of the Family Court said in Goode v Goode [2006], that in such circumstances a court hearing an interim proceeding cannot make a finding of fact.
If the Court were to receive evidence at a final hearing that someone connected to a party had required the children to hand over their mobile phones for the purpose of a visit with their mother, the court would, in such circumstances, require an explanation of that behaviour. As I said, I cannot make a finding of fact, I will not make a finding of fact, but I think that as that matter is clearly before the Applicant and the Independent Children’s Lawyer, if there is such a practice it would need to be investigated, and I would have difficulty, without a great deal of persuasion, in finding that that were to be in the children’s best interests.
I will issue a full set of orders incorporating all those matters, and they will be followed by some relatively brief reasons, because I will be ordering a transcript of my reasons. That will be sent out to the parties in due course. I do think it is appropriate – and the father referred to this – for the family report to be prepared as soon as reasonably practicable. I would think that it would be ready within about the timeline of 90 days, which would mean that it would be ready early in the new year. This is also a matter that needs to be given a final hearing date.
I would like to mention this matter, say, right at the end of January. I will hear from the parties now as to whether it is appropriate to allocate the dates for a final hearing which would be in about the middle of 2013, and I would need to hear a reasonable estimate of the proposed length of time.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 October 2012
2
0