Calley & Calley

FAMILY COURT OF AUSTRALIA

CALLEY & CALLEY

[2008 ] FamCA 998

FAMILY LAW – CHILDREN – Interim – With whom a child spends time

APPLICANT:

Ms Calley

RESPONDENT:

Mr Calley

FILE NUMBER:

PAC

3722

2007

DATE DELIVERED:

25 September 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

18 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Riddle,
Adams & Partners Lawyers

ORDERS, PENDING FURTHER ORDER

That the children:
S born … July 1995
G born … December 1996
N born … December 1989
(‘the children’) live with the mother at all times other than the periods specified in order 2, during which they will live with the father.
That the children live with the father:
2.1from 9:00am on Sunday until the commencement of school on Wednesday in each alternate week, commencing on the first weekend of Term 4 in 2008
2.2from 9:00am on Monday 29 September 2008 until 5:00pm on Friday 3 October 2008
2.3for one half of all school holidays, as agreed between the parties, or being the second half thereof in default of agreement
3.1 That the children spend Mothers Day, from 9:00am until 5:00pm, with the mother in the event that they are not in her care pursuant to these orders.
3.2That the children spend Fathers Day, from 9:00am until 5:00pm with the father in the event that they are not in his care pursuant to these orders.
That each child spend a period of 3 hours, if a school day, and 5 hours, if a holiday, with the parent who does not have his care on the child’s birthday.
That the parties effect all non-school changeovers by the parent whose care the children are leaving, delivering them to the home of the other parent at the commencement of all such periods and that parent returning them to the home of the first parent at the conclusion thereof.

IT IS NOTED that publication of this judgment under the pseudonym Calley & Calley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3722 of 2007

MS CALLEY

Applicant

And

MR CALLEY

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

These proceedings concern interim parenting arrangements for the children:
S born in July 1995 (13),
G born in December 1996 (11) and
N born in December 1998 (9)
The children currently live with their mother, Ms Calley, and spend time irregularly with their father, Mr Calley. There are a number of reasons why there is no fixed arrangement for the children to spend time with their father.

The Proposals of the Parties

By an Application in a Case filed on 16 June 2008 the father sought orders that the children live with him from the conclusion of school on Monday until the commencement of school on Friday in each week and with their mother for the remainder of the time during school terms. The children would spend half of all school holidays with each parent and there was provision for the boys to spend time with both their mother and their father on special occasions.
The mother sought interim orders that the children live with their father from the conclusion of school on Friday until the commencement of school on Monday in each alternate week and that they otherwise live with her during school terms. The boys would spend half of all school holidays with each parent. Although her proposal contained no specific orders for time on special occasions, there was nothing to indicate that the mother would be opposed to such arrangements.

Background

The father, who is now 41, and the mother, who is now 40, married in April 1990 and separated in April 2007. The children remained with their mother and saw their father as arranged by their parents from time to time.
In an affidavit which he swore on 4 June 2008 the father detailed the periods when the children have been in his care. These dates are a mixture of weekdays and weekends.
The father is a self-employed tradesman. He claimed that most of his work needs to be carried out on weekends. He maintained that he can be flexible with his work hours during the week.
The father has a relationship with Ms B, whom he sees on an average of four days per week. The father and Ms B do not live together.
The mother lives with her fiancé, Mr R. They operate a business. One of Mr R’s daughters lives with them and his other child spends time in his care each alternate weekend.

Section 60CC Considerations

Section 60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

Neither party suggested that the children would do other than benefit from a meaningful relationship with each of their parents. In my view, this acknowledgement is implicit in each of their proposals.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father’s affidavit sworn 4 June 2008 made a number of serious allegations about the mother’s treatment of the children. I will not repeat all this material in these reasons but, in summary, the complaints were that the mother:
·    uses excessive physical chastisement
·    regularly shouts at the children
·    damages property in the presence of the children in fits of anger
·    engages in physical and verbal aggression towards the father in the presence of the children
·    sends the father abusive text messages and emails
·    is physically and verbally aggressive toward the father
·    suffers from a mental illness which the father categorised as “bipolar disorder”.
The mother denied these allegations and countered with complaints that the father has made verbal and text messaged threats to her since the separation. She maintained that this conduct has escalated since she began her relationship with Mr R.
In the context of this interim parenting hearing, there was no opportunity for testing of these mutual allegations by cross-examination. There was no independent evidence which might give more weight to the complaints of one party.
It seems to me to be significant, however, that the father’s proposal is that the children are in the care of their mother for three nights per week and for half of all school holidays. In my opinion, this proposal does not sit comfortably with a genuine belief on his part that the boys really are at risk of physical and/or emotional abuse while in the care of their mother.
I am thus satisfied that there is no need to protect the children from abuse while in the care of either parent. I should note that the copies of email correspondence between the parties, as annexed to the affidavit of the father, gives me reason for real concern about the exposure of the children to the obvious conflict and hostility between their parents.
Section 60CC(3)
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
The Family Consultant, Ms C, saw the parties and the children in April 2008 and prepared a Children’s and Parents’ Issues Assessment. Ms C referred to the views expressed by each of the children about their preferred living arrangements.
Ms C reported as follows on her interview with S:
“[S] wished that there was less conflict between his parents and he tried not to get involved. He was aware that his younger siblings wanted a week-about arrangement and declared that arrangement would not suit him. [S] proposed the arrangement that he felt would meet his needs to be every second weekend from Friday to Tuesday and every second Monday after school to Tuesday. [S] said that he would like to spend full days with his father rather than just after school, Monday to Thursday.”
Ms C reported as follows in relation to her conversation with G:
“[G] disclosed that he sometimes worried about when, and how much time, that he was going to spend with his father or that he might be causing the fighting between his parents. [G] indicated that it made him sad when his parents fought and wished that they were not fighting. He completed the sentence ‘the worst thing about divorce is …violence’. [G] said that he would like some certainty about when he was going to spend time with his father. He said that he would like to spend one week with his father and one week with his mother, because it would be fair.”
N’s interview with Ms C highlighted a need, which she identified in all three boys, for weekend leisure time with their father. Ms C reported:
“[N] volunteered that he would like a week-about arrangement because it would be fair. He said that he wanted to spend weekend time with his father although ‘my dad don’t want me on the weekends’. [N] claimed that he had said (or would like to say to his father) that, ‘if you loved me, you would work while I am at school’. ‘We do things after school such as going to the skate park’ but he said that he would prefer to spend time with his father on weekends.”
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
There was nothing to indicate any problems in the children’s relationship with their mother, other than the unsubstantiated allegations of the father. They made no complaints to Ms C about their mother’s treatment of them. Ms C gave oral evidence to the effect that she “gained no impression from the children that [their mother] could not manage them”. The only evidence about any difficulty in the children’s parental relationship was Ms C’s identification of the need of all three boys for weekend leisure time with their father.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
On behalf of the father, his solicitor conceded in submissions that “[the mother] has encouraged his time with the children”. In my view this concession was consistent with the evidence and entirely proper. In my opinion the mother has endeavoured to put in place a routine for the children to spend time with their father. I am not satisfied that she has been obstructive, as the father seemed to allege.
On the other hand, the father’s proposal was that the children spend three nights per week and half the school holidays in the care of their mother. To this extent, it is implicit that he is prepared to facilitate and encourage the boys’ relationship with her.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children are accustomed to being in the care of their mother during the school week. The father’s proposal involves a relatively significant change in arrangements for their care.
The change which the children need seems clearly to be the introduction of weekend leisure time with the father. He claims to be unable to give this time to the children due to work commitments. He also maintained that he is unable to provide weekend time to the children because he is engaged in the arts in a “semi-professional” capacity.
Section 60CC(3)(f):  the capacity of:
(i)each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
For reasons already indicated I am satisfied that the father’s proposal itself demonstrates that he has no serious concerns as to the mother’s capacity to provide for the children’s needs and her attitude as a parent. The mother raised no particular concerns about the father in terms of these factors.
I have some doubts about the father’s capacity to provide for the children’s needs because of his ongoing refusal to organise his life so as to spend time with them on the weekends. I agree with the opinion expressed by the Family Consultant as follows:
“[The father] appeared not to have heard the children’s expressed wish to spend time with him on weekends and insisted that he would pursue his orders of Monday to Friday each week through to a final hearing. He stressed that if he was forced to have them on weekends he would have them minded.”
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
The father made numerous allegations about violent behaviour on the part of the mother, as detailed in his affidavit filed 4 June 2008. As noted already, there was no independent evidence to corroborate any of these allegations. Further, as I have already observed, the terms of his own proposal do not sit comfortably with any real concern along these lines on his part.

Equal Shared Parental Responsibility

Neither party sought an order for sole parental responsibility. In my view, there was nothing in the evidence to warrant such an order. I consider it appropriate that the presumption is applied in these interim proceedings.
I am satisfied that it is in the children’s best interests that the mother and the father have equal shared parental responsibility. In my view, nothing in the evidence rebuts this presumption.

Conclusion

Neither party sought an order for equal time. Although G and N stated to Ms C that they would like such an outcome, she was of the view that they “have little understanding of the implication…..the week-about arrangement could have on them”. She was also of the opinion that:
“Children in [G] and [N’s] age and stage of development often place a lot of weight on being fair to their parents because they do not want to be the cause of their parents’ disputes, a concern that [G] had expressed.”
It thus seems to me that the Family Consultant did not regard these expressed views of G and N as soundly based. As noted, neither party sought such an arrangement and their mutual hostility would make week-about care of the children problematic, in my opinion. For these reasons, I will not make such an order.
It is then necessary to consider orders which would result in the children spending “substantial and significant time” with each parent. The proposal of the father does not meet that description, as the boys would spend all of their weekend time with their mother and all of their school days with him. On the other hand, a modified version of the mother’s proposal would meet the criteria for “substantial and significant time” as set out in the Family Law Act.
It is my view that the children’s need for weekend time with their father should be a priority. If he chooses to make good his threat “to have them minded” if he is to have them on weekends, he will probably pay an ultimate price in terms of his relationship with the children. Of course, they too will likely suffer the consequences of his decision.
I do not intend to impose the significant change on the boys of a new arrangement whereby they spend all of their school term time with their father. There will need to be far more evidence that this arrangement would be in their best interests before I would contemplate taking such a step.
It seems to me that the best interim arrangement would be for the boys to spend Sunday morning until Wednesday morning in each alternate week with their father and otherwise to live with their mother. The father said that he rarely has artistic events on Sundays and he has managed weekend time with the children in the past. I can see no reason why the boys should not spend half of all school holidays with each parent. There will also be provision for time on special occasions with each parent.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 25 September 2008

[2008] FamCA 998

25 September 2008

Key Legal Topics

Areas of Law

Family Law