CALLAHAN & CALLAHAN
[2012] FMCAfam 459
•22 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALLAHAN & CALLAHAN | [2012] FMCAfam 459 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – independent representation of the children’s interests – whether spending equal time with each parent in child’s best interests – substantial and significant time – views of the children and their level of understanding considered – where mother has formed a new relationship – objects of Part VII of Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65AA, 65DAA, 68L |
| Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 Macquarie Dictionary (3rd Ed.) Sydney 2003 |
| Applicant: | MS CALLAHAN |
| Respondent: | MR CALLAHAN |
| File Number: | SYC 1855 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 May 2012 |
| Date of Last Submission: | 11 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Southern Waters Legal |
| The Respondent: | In person |
ORDERS
BY CONSENT UNTIL FURTHER ORDER
That the father and the mother shall have equal shared parental responsibility for making all decisions in relation to the major long term issues concerning the children of the marriage [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005.
That the child [X] live with his parents in a shared care arrangement at such times to be nominated by the child [X] and agreed upon by the parents.
That the children [X], [Y] and [Z] spend the following additional time with their mother:
(a)on the children’s birthdays as follows:
(i)if the mother is not spending time with [Z] on his birthday from 4.00 pm to 6.00 pm on that day;
(ii)if the mother is not spending time with [X] on his birthday from 4.00 pm to 6.00 pm on that day;
(iii)if the mother is not spending time with [Y] on his birthday from 4.00 pm to 6.00 pm on that day;
(b)on the mother’s birthday from 4.00 pm until 6.00 pm if the children are not otherwise spending time with her on that day;
(c)on Mother’s Day each year from 9.00 am until 5.00 pm if the children are not otherwise spending time with their mother on that day;
(d)during the school holiday periods as follows:
(i)one-half of the two week term holiday periods as agreed between the parties and failing agreement the first week with their father and in the second week with their mother;
(ii)for the Summer school holiday period the children will spend one block week with each parent at times to be agreed by the parties and failing agreement for the third week of the school holidays period with their father and for the fourth week of the school holiday period with their mother. It is agreed that the week will commence on the Monday at 9.00 am and conclude on the following Sunday at 5.00 pm;
(iii)during the remainder of the six week Summer holiday period, the children will live with their parents as outlined in other Orders.
That the children [X], [Y] and [Z] communicate with their mother at the following times:
(a)by telephone each evening when the children are in their father’s care;
(b)at any time as instigated by the children and the father assists the children to telephone their mother at all reasonable times when they request to do so.
That the children [X], [Y] and [Z] spend the following additional times with their father:
(a)on the children’s birthdays as follows:
(i)if the father is not spending time with [X] on his birthday from 4.00 pm to 6.00 pm on that day;
(ii)if the father is nor spending time with [Y] on his birthday from 4.00 pm to 6.00 pm on that day;
(iii)if the father is not spending time with [Z] on his birthday from 4.00 pm to 6.00 pm on that day.
(b)on their father’s birthday each year from 4.00 pm till 6.00 pm if they are not otherwise living with their father on that day;
(c)on Father’s Day in each year from 9.00 am until 5.00 pm if they are not otherwise living with their father on that day;
(d)during the school holiday periods as follows:
(i)One-half of the two week term holiday periods as agreed between the parties and failing agreement for the first week with their father and in the second week with their mother;
(ii)For the summer school holiday period the children [X], [Y] and [Z] will spend one block week with each parent at times to be agreed by the parties and failing agreement for the third of the school holidays period with their father and for the fourth week of the school holiday period with their mother. It is agreed that the week will commence on the Monday at 9.00 am and conclude on the following Sunday at 5.00 pm;
(iii)During the remainder of the six week Summer holiday period, the children will live with their parents as outlined in other Orders.
That the children communicate with their father as follows:
(a)By telephone each evening when the children are not in their father’s care;
(b)At any time as instigated by the children and that the mother assists the children to telephone their father at all reasonable times when they request to do so.
That for the purposes of change over, 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.
In the event that the children are not at school during the time of collection or pick up the parties will arrange a time which is mutually convenient to both parties and on such occasion the parent who is due to have the children will attend upon the other parent’s residence for the purpose of collecting the children for the time.
That the father and the mother will make joint decisions in respect to the children’s participation in sports and extra-curricular activities.
That the father and mother will ensure that when the children spend time with their parents that they attend with any clothing, books, or school papers, which they require for school or extra-curricular 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 parent will denigrate or encourage a third party to denigrate the other in the presence of the children and that each parent will allow the children to feel comfortable in the presence of the other parent and encourage them to communicate with both parents.
That each parent will inform the other parent as soon as practical after they have become aware of any medical condition or ailment that the children are suffering from.
That each parent will inform the other parent within 24 hours of them becoming aware of any medical appointment that the children may attend from time to time.
That either party is permitted to attend any of the children’s medical, school, social, sporting or any other significant events and that within 24 hours of a parent becoming aware of such activity they notify the other parent of the details of the activity.
That in the event that either parent wants to take the children outside of the Sydney metropolitan area for more than 48 hours, that 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 that the children are to be contacted.
The interests of the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange the representation of the children by an appropriately qualified lawyer.
AND IT IS ORDERED THAT
The parties are to forward to Legal Aid New South Wales for the use of the independent children’s lawyer when appointed copies of all applications, responses, affidavits and other relevant documents within fourteen (14) days of the date of this Order.
AND IT IS FURTHER ORDERED THAT UNTIL FURTHER ORDER
The children [Y] and [Z] are to spend time with the Applicant mother during school term time:
(a)from immediately after school until 7.00 pm each Monday and Wednesday; and
(b)from 8.00 am until 7.00 pm each alternate Saturday and Sunday commencing on the first Saturday after the date of these Orders.
For the purposes of these Orders, the mother’s time with the children [X], [Y] and [Z] is not to be in the presence of Mr S.
For the purposes of Order (4) the mother is not to use the loudspeaker function on the telephone when speaking to the children.
IT IS NOTED that publication of this judgment under the pseudonym Callahan & Callahan 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
Application
This is an application by the mother of three boys, [X], [Y] and [Z], for interim parenting orders that would see [Z] live with her, [X] live with his father and his mother in a shared care arrangement at times he nominates and [Y] live with his father.
The father, for his part, seeks interim orders that the children should live with him and spend time with their mother:
a)for [X], at times that he nominates;
b)for [Y], from 3.00 pm to 6.30 pm on Mondays and Wednesdays and alternate weekends from 8.00 am to 6.00 pm on the Saturday and the Sunday;
c)for [Z], from 3.25 pm to 6.30 pm on Mondays and Wednesdays and alternate weekends from 8.00 am to 6.00 pm on the Saturday and the Sunday;
d)for all three children:
i)commencing in 2013 and each alternate year thereafter from 9.00 am on Christmas Eve until 3.00 pm on Christmas Day;
ii)commencing in 2012 and each alternate year thereafter from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day;
iii)from 4.00 pm to 6.00 pm on the children’s birthdays;
iv)from 4.00 pm to 6.00 pm on the mother’s birthday;
v)from 9.00 am to 5.00 pm on Mother’s Day;
vi)for the second half of the school holidays during the year; and
vii)for one week during the Christmas school holidays.
The father also seeks an order providing that:
…the Mother’s partner, Mr S, is not to be present when the Mother is spending time with the children…
Background
The mother’s solicitor, Ms Bennett, has prepared a useful background which is included in her written submission and some recourse has been made to that document.
The mother was born [in] 1971 and the father was born on [date omitted] that same year. The mother is 41 years of age and the father is 40.
The parties started living together in June 1996 and were married on [date omitted] that same year.
There are three children of the marriage.
[X] was born [in] 1997. He is about to turn 15 at the end of next month.
[Y] was born [in] 1999. He has only recently attained the age of 13 years.
The youngest child, [Z], was born [in] 2005. He has only recently attained the age of 7 years.
The parties separated in mid 2006 but remained living under the one roof until August 2008, when the mother moved out of the former matrimonial home, taking [Z] with her.
There is no evidence that the parties have divorced.
The parties’ accounts differ as to how much time [Z] used to spend living with each parent. However, they agree that the eldest boy, [X], lived between both parents’ houses but they disagree as to how much time he spent in each.
[Y] remained living with his father. Initially, he did not spend any time with his mother, but since 2010 he had been spending some overnight time at his mother’s residence.
The mother commenced a relationship with one Mr S in December 2011. She commenced living with Mr S about the end of March or early in April 2012.
The mother claims that the father has acted unilaterally to keep all three boys living with him since he found out about her relationship with Mr S.
The father claims that the boys do not want to have anything to do with Mr S. He also claims that there have been incidents when Mr S has spoken to him in an abusive and threatening tone.
The mother commenced proceedings in this Court by filing an Application and supporting affidavit on 30 March 2012.
The parties attended Court on 7 May where an Order was made for them to attend a Child Dispute Conference with a Family Consultant. In her Memorandum to the Court, the Family Consultant noted that the parties had not reached any agreement and recommended that therapeutic intervention by means of family counselling with either a psychologist or through a local organisation.
The Family Consultant recommended that for the future progress of the matter the Court should order the preparation of a Family Report under the provisions of s.62G of the Family Law Act and should order that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Act.
Areas of Agreement
At the interim hearing on 11 May 2012 the parties agreed on sixteen parenting Orders, which form Orders (1) to (16) made today.
It was put to the parties that because of the high level of conflict between them and what was stated to be the views of the children, the Court should follow the recommendation of the Family Consultant and make an order under s.68L appointing an independent children’s lawyer.
The parties agreed to that suggestion.
The principles to be followed by a Court in deciding whether or not to appoint an independent children’s lawyer are set out in the decision of the Full Court of the Family Court in Re K[1], which remains the authority notwithstanding various amendments to the Act in the intervening 18 years. It is relevant that there is an apparently intractable conflict, “a high level of long standing conflict between the parents”[2].
[1] (1994) 17 Fam LR 537; FLC 92-461.
[2] (1994) FLC 92-461 at 80,774
The Court may inform itself of views expressed by a child by having regard to anything contained in a Family Report under subsection 62G(2) of the Act or by appointing an independent children’s lawyer under s. 68L (see s.60CD).
As it has been put to the Court that the children are expressing strong views about their mother’s relationship with Mr S, I am satisfied that this is a matter where the Court would benefit by the appointment of an independent children’s lawyer.
Issues
The Family Consultant identified four issues impeding resolution:
· The highly conflicted nature of the parents’ relationship, their compromised capacity to effectively communicate and to co-parent, and the impact of these factors on the children
· Both parents present as fairly fixed in their respective positions in relation to future parenting arrangements for their sons
· The children’s apparent resistance to spending time with their mother and her new partner
· The father’s concerns about the children coming into contact with the mother’s partner.
In her written submission, the mother’s solicitor identified the following issues:
a)[Z]’s living arrangements:
i)with whom he should live; and
ii)the time he should have with the other parent;
b)the time [Y] should spend with his mother;
c)the father seeks that the mother’s time with the children should be limited in that:
i)the children [Z] and [Y] should not spend time with the mother overnight; and
ii)Mr S should not be present when the children are with their mother;
d)the time each party would spend with the children during the Christmas/January school holiday period.
At the hearing, Ms Bennett submitted on behalf of the mother that the key issues are:
a)the living arrangements for the child [Z]; and
b)the time that the child [Y] should spend with his mother.
Evidence
The mother relied on:
a)her Application;
b)her affidavit of 27 March 2012; and
c)the affidavit of Mr S of 8 May 2012.
The father relied on:
a)his Response filed on 3 May 2012; and
b)his affidavit of 3 May 2012.
Submissions
The mother’s solicitor, Ms Bennett, submitted that the question of Christmas Eve in 2012 was in dispute between the parties. The children had spent Christmas Eve with their father in 2011 and the mother believes that the children should spend Christmas Eve with her in 2012.
The mother wants [Z] to spend equal time with her and with his father and she wants to spend substantial and significant time with the child [Y]. She submits that this arrangement is reasonably practicable and in the children’s best interests.
Ms Bennett told the Court that the parties had agreed that the children should see a child psychologist and that the parties would submit names of suitable psychologists to each other and then select one.
The father submitted that the mother had precipitated the situation when she entered into a new relationship and moved into Mr S’s residence. The boys have reacted to that situation. He considered that the mother was seeking to spend more time with the youngest child, [Z], but seeking to spend more time with the two older boys. He also referred to an incident at the football field which involved an altercation with Mr S.
The father commented that the boys had complained that their mother put her telephone on speaker when she spoke to them and they could hear Mr S in the background giving advice to her. He also said that the mother was welcome to take the children to sporting and other activities.
The Relevant Law
Section 60CA of the Family Law Act 1975 requires the Court, in deciding whether to make a particular parenting order, to regard the best interests of the children concerned as the paramount consideration (see also s.65AA).
A court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act. I have done so in this case and will refer specifically to those matters that are particularly relevant.
The Court will consider the views of the children concerned under paragraph 60CC(3) where the children are of sufficient maturity for those views to be expressed. The weight given to given to the children’s views is a matter for the Court. As can be seen, this is a particularly relevant issue, and for that reason the children’s interests are to be independently represented by a lawyer. The court may consider anything contained in a report given to the court under subsection 62G(2). It would be preferable to wait until an independent children’s lawyer has been appointed and has had the opportunity to see the children before making a decision about ordering either a Family Report or a Single Expert Report.
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the children’s best interests (s.61DA(4)).
It needs to be remembered that s.61DB provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order. In other words, parental responsibility is considered afresh when the Court is making a final order.
If the presumption of equal shared parental responsibility does apply, then the Court is required by s.65DAA to consider whether it is in the children’s best interests and reasonably practicable for them to spend equal time with each parent (s.65DAA(1)) or, failing that, whether it is in the children’s best interests and reasonably practicable for them to spend substantial and significant time with each parent (s.65DAA(2)).
The term “substantial and significant time” is defined by subsection 65DAA(3) of the Act.
The mother’s solicitor has drawn the Court’s attention to the objects of Part VII of the Family Law Act in her submission. Those objects are set out in subsection 60B(1) of the Act and it may be helpful to reproduce them here.
The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Again, I have considered all of those matters.
Conclusions
In this case, the parties have consented to an interim order whereby they have equal shared parental responsibility for their three children. These are interim proceedings and the Court will reconsider the presumption of equal shared parental responsibility when making final orders (s.61DB). Subsection 61DA(3) provides that the presumption applies when the court is making an interim order unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied.
I am satisfied that it is appropriate to apply the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
Where the Court makes an order that the children’s parents are to have equal shared parental responsibility for them, this brings into consideration whether the children spending equal time with each parent would be:
a)in their best interests; and
b)reasonably practicable.
Reasonable practicality is not the issue. As the mother’s submission points out:
…Both parties reside close to the children and their schools. The mother’s work is flexible and she can and will facilitate any order made by the court.[3]
[3] Mother’s written submission paragraph 5.6
The question to be asked is whether it is in the children’s best interests to spend equal time with each parent. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of section 60CC.
The parties have consented to an order specifically relating to the oldest boy, [X], which provides that he will live with his parents in “in a shared care arrangement at such times to be nominated by [X] and agreed upon by the parents”.
This is an order for shared care, but the timing of it is flexible, being partly determined by the child himself. The child [X] is nearly 15 years of age. He has, according to the mother, learning difficulties, having been diagnosed with ADHD (Attention Deficit Hyperactivity Disorder), for which he has been prescribed medication. The mother deposes in her affidavit that:
[X] has had throughout his life and will continue to have learning difficulties. He suffers from dysgraphia[4]. In effect, he has issues with his short term memory. He is currently being treated by
Dr K[5] and is on medication for ADHD.[6]
[4] Dysgraphia is defined in the Macquarie Dictionary 3rd Edition 2003 as “impairment in the ability to write”.
[5] Dr K is a paediatrician
[6] Affidavit of Ms Callahan 27.3.2012
The terms of the Order are wide and do not necessarily provide for equal time being spent with each parent. However, where parents consent to a parenting order, the Court may, but is not required to, have regard to all or any of the matters set out in subsections (2) or (3) of section 60CC (see subsection 60CC(5)).
However, the parties do not agree on all aspects of parenting orders relating to the two younger boys, so the Court must consider their best interests as provided by s.60CC. The mother is of the view that it is in [Z]’s best interests to have equal time with his parents and that it is in [Y]’s best interests to live with his father and spend substantial and significant time with her, such time to coincide with the time that [Z] is with her.
The difficulty is that the father is opposed to the children being brought into contact with Mr S, saying that it is the children’s wish not to have contact with him. The mother believes that the children’s views are heavily influenced by the father.
It is in the children’s best interests to have a meaningful relationship with both of their parents. It is submitted that the children cannot have a meaningful relationship with their mother if they do not spend overnight time with her. I do not necessarily agree with that submission.
There is no real evidence of risk to the children of being subjected to abuse, neglect or family violence. However, there is evidence of acrimonious exchanges between the father and Mr S and of abusive language by the father to the mother. This is, of course, untested, and the Court cannot make definitive findings of fact in an interim hearing where the parties disagree about the evidence. That said, such exchanges in the presence or hearing of the children, if they have occurred, would be distressing to the children and destabilising to their relationships with their parents. They should be avoided.
The views of the children are important but the weight to be given to them will depend on their ages and level of maturity. I am firmly of the view that it is necessary for an independent children’s lawyer to be appointed, as there are conflicting views being advanced about their attitude to the mother’s friend, Mr S.
The nature of the children’s relationship with each of their parents and with each other is also an important matter at this stage. The mother is of the view that the youngest child, [Z], should be spending more time with her, but she accepts that [Y] wishes to continue to reside with his father.
The father claims that the three boys wish to be together. He says that the mother wants to spend more time with [Z] but is not pushing to spend more time with the two older boys, a claim the mother denies. She wants [Y] to spend time with her at the same time as [Z] does.
The mother also claims that the father is not willing to facilitate and encourage a close and continuing relationship with her. She feels that the father is trying to exclude her from the children’s lives. The father claims that he is, but says that he is following the children’s expressed desire that they not have anything to do with Mr S.
In my view the picture will be clearer once the children have the benefit of an independent children’s lawyer. It will take approximately four weeks for an independent children’s lawyer to be appointed and to be in a position to offer some guidance to the Court about the children’s wishes.
Until then, I consider that the best interests of the children require that they spend regular and consistent time with their mother as well as with their father, but for the time being Mr S should remain in the background until the Court has more information. It is not reasonable to expect the mother to remain without male companionship until the children all turn 18, but the question of the children’s views of Mr S needs to be investigated.
The mother should be free to attend the children’s sporting events and school functions, but she should so without Mr S in attendance. If nothing else, this will both reduce the likelihood of altercations with the father and reassure the children that their mother is interested in their sporting and educational activities.
The interim parenting orders can be revisited once the Court has the benefit of input from the independent children’s lawyer. There is no need for orders about Christmas at this stage.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 22 May 2012