Cassidy and Cassidy
[2012] FMCAfam 270
•16 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2012] FMCAfam 270 |
| FAMILY LAW – Children – parenting – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – three children aged 11, 9 and 6 years. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Cassidy & Cassidy [2008] FMCAfam 1137 Cassidy & Cassidy [2009] FamCAFC 125 Cassidy & Cassidy [2010] FMCAfam 515 Cassidy & Cassidy [2011] FMCAfam 220 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MR CASSIDY |
| Respondent: | MS CASSIDY |
| File Number: | SYC 5446 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 13-15 March 2012 |
| Date of Last Submission: | 15 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Caldwell Martin & Co |
| Counsel for the Respondent: | Mr Lee |
| Solicitors for the Respondent: | CBD Legal |
| Counsel for the Independent Children’s Lawyer | Ms Fallon |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW |
ORDERS
BY CONSENT
All previous parenting orders are discharged in relation to the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.
Without derogating from the meaning of parental responsibility in these orders, the Respondent mother shall:
(a)advise the father in writing immediately she becomes aware of the need for a decision to be made; and
(b)provide the father in writing with all information relevant to the decision; and
(c)if reasonably possible, in exercising parental responsibility pursuant to Order 3, consider any views expressed in writing by the father, before making the decision.
That the children live with the mother.
That notwithstanding the provisions of any orders for parental responsibility in these orders:
(a)the mother shall be responsible for the day to day care, welfare and development of the children when they are living with her;
(b)the father shall be responsible for the day to day care welfare and development of the children when they are spending time with him.
The school term is defined in accordance with the information contained within the New South Wales Public Schools website (currently in the “Term dates” section, or in any official New South Wales school website that replaces this one, and such holidays shall be deemed to commence from the day after the preceding term ends, and the holidays shall be deemed to conclude on the day before the children are required to return to school pursuant to such information.
For any medical attention for the children other than emergencies the parents shall attend upon the family medical practice of Dr M at [address omitted] with the children and the parent taking the children to the family medical practice will ensure that the other parent:
(a)is advised of any diagnosis;
(b)is advised of any medication prescribed;
(c)ensures that any prescribed medication goes with the child to the other parent; and
(d)shall ensure that any medication is administered and/or that any treatment regime is complied with.
In the event that a child is admitted to hospital, the parents shall comply with any and all requests, recommendations and directions of the treating team including doctors, nurses and social workers, noting that this order does not in any way derogate from the authority, responsibilities and obligations of the treating team to make the necessary arrangements in relation to the safety and well being of the child being treated and the safety and well being of any member of the hospital staff.
The parties are restrained from attending any Parent-Teacher night at the children’s school/s at the same time as each other and both parents must make arrangements according to the convenience of the school to attend on different appointment times to each other, noting that this order does not in any way derogate from the authority, responsibilities and obligations of the school to make the necessary arrangements in relation to the safety and well being of the said children and any teacher or member of the school staff.
Notwithstanding any other orders herein the father is at liberty to approach the children’s school directly to obtain copies of the children’s school reports, school photographs and other information ordinarily provided to parents.
The parties are hereby restrained from permitting any relative or support person to be within 200 metres of the children and parents when the children are moving from the care of one parent to the other.
The parties are restrained from making any recording of changeover or requiring or permitting any other person to do so.
All changeovers shall occur as follows:
(a)at school each alternate Thursday and Monday during the school terms;
(b)at [C] Police Station at 12 noon on the midpoint of the school holidays; and
(c)at the children’s school at the end of the school holiday periods; and
(d)in the foyer of the [C] Police Station on all other occasions where it does not take place at the children’s school.
For the purposes of changeover at the [C] Police Station pursuant to Order 12 above:
(a)the parent delivering the children shall arrive at the foyer at least 5 minutes prior to the changeover time; and
(b)the parent collecting the children shall take the children immediately from the area; and
(c)the delivering parent shall then wait a further 5 minutes before leaving the Police Station.
If a child is not at school on a day when he/she would be collected by a parent in accordance with these orders then the child shall be delivered to the [C] Police Station 30 minutes after the time he/she would have been collected from the school.
Each of the parties is to ensure that the children’s school uniforms, shoes and other school equipment accompany the children at changeover and that the school uniforms, shoes and other equipment be returned and in good repair at the conclusion of the children’s time with a parent.
The parties are hereby restrained:
(a)from discussing these orders with the children or any other person on any occasion when the children are moving from the care of one parent to the other.
(b)from discussing these proceedings in the presence or within the hearing of the children, and shall use their best efforts to ensure that no other person discuses these proceedings in the presence or hearing of the children.
Without admissions both parents are restrained from using physical discipline on the children at any time.
The parents shall in the first instance communicate concerning arrangements for the children by using e-mails, and/or text messages (SMS) where necessary.
The mother and father:
(a)shall do all such things as may reasonably be required to facilitate the children communicating with the other party by telephone between 7.30 am 8.00 am on each of the said children’s birthdays, and the parent who does not have the said children in his or her care at that time to initiate the call; and
(b)shall do nothing to prevent a child from telephoning the other parent at any reasonable time.
Each party shall give the other not less than 7 days notice in writing of an intention to change his/her residential address and/or telephone number(s) and shall advise the other party in writing of the new address and telephone details.
The Independent Children’s Lawyer shall be at liberty to provide copies of these Orders to the children’s current school, to Ms D Psychologist, the children’s General Practitioner and [C] Family Support Service within 7 days of the date of these Orders.
The parents or either of them shall comply with a request by the Independent Children’s Lawyer that the children attend the office of the Independent Children’s Lawyer for the purposes of the Independent Children’s Lawyer explaining to the children the nature and effect of the orders on the time the children will spend with each parent.
AND IT IS FURTHER ORDERED THAT
The parties are to have equal shared parental responsibility for the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 as to matters concerning the children’s religious practice and upbringing.
The mother will otherwise have sole parental responsibility for the children [X], [Y] and [Z].
The mother shall provide to the father a yearly calendar of proposed extra-curricular or sporting activities for the children if available or at least 72 hours notice prior to any extra-curricular or sporting activity shall provide to the father by SMS text or email the times, dates and location of each activity and any other necessary details for the participation of the children in those extra-curricular or sporting activities.
Each parent notwithstanding any other parenting order is restrained from enrolling or registering any of the children in any extra-curricular or sporting activity or hobby that would take place or occur or be scheduled when the child would be in the care of the other parent as provided by these Orders except by way of agreement in writing between the parties.
The parties are hereby restrained from approaching each other as follows:
(a)at any school function which they attend and which parents would ordinarily attend whether on the school premises or at any other location outside the school premises where a school event is held; and
(b)at any extra-curricular or sporting activity which parents would ordinarily attend and in which the children participate,
except in case of any emergency affecting the health or safety of any of the children.
The children shall spend time with the father as follows:
(a)During school terms from after school each alternate Thursday to before school on the following Monday, or to before school on the Tuesday in the event of a gazetted long weekend;
(b)For one half of the school holidays at the end of Terms 1, 2 and 3 each year as follows:
(i)the mother’s time to commence at the conclusion of Terms 1, 2 and 3 during 2012 and each alternate year thereafter, and conclude at 12 noon on the second Saturday of each school holiday period;
(ii)the father’s time to commence from 12 noon on the second Saturday during the holidays at the end of Terms 1, 2 and 3 during 2012 and each alternate year thereafter, and conclude at the commencement of school in Terms 2, 3 and 4;
(iii)the mother’s time to commence from 12 noon on the second Saturday during the term holidays at the end of Terms 1, 2 and 3 during 2013 and each alternate year thereafter, and conclude at the commencement of school terms 2, 3 and 4; and
(iv)the father’s time to commence at the conclusion of Terms 1, 2 and 3 during 2013 and each alternate year thereafter, and conclude at 12 noon on the second Saturday of each school holiday period.
(c)Each year for one half of the Christmas/New Year school holidays as follows:
(i)The mother’s time to commence at the conclusion of Term 4 and to conclude at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2012/2013 and each alternate year thereafter;
(ii)The father’s time to commence at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2012/2013 and concluding at the commencement of school in Term 1 in 2013 and each alternate year thereafter;
(iii)The mother’s time in 2013/2014 to commence at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2013/2014 and concluding at the commencement of school in Term 1 in 2014 and each alternate year thereafter; and
(iv)The father’s time in 2013/2014 to commence at the conclusion of Term 4 and to conclude at 12 noon on the fourth Saturday of the Christmas/New Year holiday period and each alternate year thereafter.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the first weekend after the school term resumes in all those years where the father’s time commences at the conclusion of Terms 1, 2 and 3 and concludes on the second Saturday of each school holiday period.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the second weekend after the school term resumes in all those years where the father’s time commences at 12 noon on the second Saturday during the holidays at the end of Terms 1, 2 and 3 and concludes at the commencement of school in Terms 2, 3 and 4.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the second weekend of Term 1 in 2013 and each alternate year thereafter.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the first weekend of Term 1 in 2014 and each alternate year thereafter.
The mother is restrained from being within 100 metres of the [K] School or any other school the children may attend from 15 minutes before and until 15 minutes after the beginning and end of school on any day on which the father is collecting or delivering the children to and from school as provided by these Orders.
The mother must do all things to ensure that during school terms the children are to communicate with the father by telephone each Thursday evening when they are not otherwise spending time with the father on those Thursdays between at a time between 7:30 and 8:00 pm by way of the mother calling the father’s telephone number.
Each party is restrained by injunction from doing any act or thing so as to:
(a)change the surname or use any other surname for any of the children; or
(b)apply for any passport for any of the children
except by way of consent in writing of the other party or Order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Cassidy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5446 of 2007
| MR CASSIDY |
Applicant
And
| MS CASSIDY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father for parenting orders relating to the parties’ three children, [X], aged eleven, [Y] aged nine and [Z] aged six. The children have been living with their mother and spending time with their father.
The parties have a lengthy history of litigation, in this Court, the Family Court and other Courts.
The children’s interests are independently represented by a lawyer from Legal Aid NSW, who has briefed Ms Mary Falloon of counsel to appear in these proceedings.
Over the time of this litigation there have been three separate Reports prepared, two Family Reports by Ms B, a Family Consultant, and, more recently, a Single Expert Report by Dr W, a child and family psychiatrist. Dr W’s Report has been tendered in evidence and Dr W gave oral evidence by telephone.
The parties have engaged in a series of discussions through their respective counsel, and a number of parenting orders have been agreed upon. Those agreed orders were made by consent.
There are, however, a number of parenting issues still to be decided. The Court has heard evidence from Dr W on a number of those points and counsel have made submissions on what additional parenting orders should be made. There are also property proceedings between the parties, concerning a modest pool of assets, and the father gave oral evidence on that issue.
At the request of counsel for the father, Mr Campton, as parenting orders needed to be made with some urgency prior to the weekend, I handed down a series of parenting orders on Friday 16 March. Counsel indicated to the Court that reasons could follow in due course. The property proceedings are not of the same urgency and it was agreed that a separate decision on property would be handed down in due course.
These are the reasons for the parenting orders.
Background
Counsel for the Independent Children’s Lawyer prepared a detailed chronology for the purpose of these proceedings which has been very useful in setting out the relevant history.
The father was born [in] 1975. He is now 37 years old.
The mother was born [in] 1977. She is now 35 years old.
The parties were married [in] 1999.
There are three children of the marriage. [X] was born [in] 2000. She is now 11 years and 8 months old. [Y] was born [in] 2003. He is 9 years and one month old. The youngest child, [Z], was born [in] 2005. [Z] is therefore 6 years and 9 months old.
In April 2006 the father suffered a stroke and was hospitalised for several weeks.
There had been some differences between the parties for a considerable time. The mother obtained an Interim Apprehended Violence Order against the father at [C] Local Court on 12 September 2006. This order was extended on 11 December 2006 and the application was listed for hearing on 23 February 2007.
The parties separated in March 2007.
On 23 June 2007 the mother applied for an Apprehended Violence Order against the father and the paternal grandfather after an incident at the former matrimonial home.
Mediation at the [omitted] Centre in [C] on 7 July 2007 did not produce an agreement.
The mother applied for a further apprehended violence order against the father on 24 July 2007.
The father applied to the Family Court for parenting orders on 2 August 2007. Both parties filed Notices of Abuse.
On 7 August 2007 Judicial Registrar Loughnan, as he then was, ordered that the children’s interests should be independently represented under the provisions of s.68L of the Family Law Act and made some interim parenting orders.
On 21 August 2007 the Local Court at [C] dismissed the applications for apprehended violence orders against the father and the paternal grandfather.
On 5 September 2007 interim parenting orders were made by consent, providing that the children live with the mother during the week and with the father on weekends. The proceedings were then transferred to the Federal Magistrates Court.
The interim consent orders were amended by consent on 21 November 2007 to include holiday time, telephone communication and other issues.
A final hearing took place before Lindsay FM on 12 and 13 June and 16 July 2008.
On 17 October 2008 his Honour handed down judgment (Cassidy & Cassidy[1]).
[1] [2008] FMCAfam 1137
The father appealed and on 15 July 2009 Boland J handed down judgment, allowing the appeal and remitted the matter for rehearing (Cassidy & Cassidy[2]).
[2] [2009] FamCAFC 125
In the meantime, the children had been removed from the parents’ care by the Police after a dispute outside the children’s school. They were placed with the grandmother for some days but were later returned.
On 21 July 2009 Baumann FM ordered a second Family Report to be prepared. The report was released on 1 October 2009.
On 7 October Baumann FM made an interim order that the children spend a week with their father during the October school holidays.
The children met with Ms D, a psychologist, on 29 October 2009.
The application was listed for final hearing on 29 and 30 April 2010.
On 29 April 2010 the mother sought an adjournment of the final hearing. Interim parenting orders were made by consent and further orders were made after submissions. The mother was restrained from being within 500 metres of the [E] School from 30 minutes before until 30 minutes after the beginning and end of school on any day on which the father was collecting or delivering the children to and from school.
The application was listed for final hearing from 3 to 5 November 2010, but on 26 October those dates were vacated and a further Family Report was ordered.
The application was then listed for final hearing from 9 to 11 February 2011.
The children commenced attending [K] School in February 2011.
The hearing was vacated on 9 February and an Independent Children’s Lawyer was appointed.
On 11 March 2011 orders were made for Dr W to be appointed as the Single Expert Witness for the purpose of the proceedings. The parties were ordered to pay Dr W’s fees in equal shares and they were ordered to direct the solicitors holding the balance of proceeds of sale of the former matrimonial home to hold an amount in trust for the purpose of payment of the fees. The amount to be held was later increased on
15 November 2011 and 27 February 2012.
The application, including claims for a division of matrimonial property, was listed for final hearing from 13 to 16 March 2012.
On 30 October 2011 the child [Z] suffered burns in an accident at the father’s home, resulting in her being hospitalised.
Dr W’s Single Expert Report was released to the parties on
29 February 2012.
The final hearing was due to commence on 13 March 2012. The parties’ counsel engaged in a process of negotiation on that day and the next with a view to resolving parenting issues.
On Wednesday 14 March the parties’ counsel prepared a schedule of consent orders. Counsel for the father, Mr Campton, prepared further minutes of parenting orders sought by the father.
Orders Sought
The Orders to which the parties agreed were, in summary:
a)All previous parenting orders are discharged;
b)The mother is to advise the father of the need for a decision to be made, provide him with relevant written information and, if reasonably possible, consider any views expressed by the father;
c)The children live with the mother;
d)The parties are to be responsible for the day to day care, welfare and development of the children when the children are with them;
e)The school term is to be defined in accordance with information in the New South Wales Public Schools website;
f)For any medical attention other than emergencies the children are to be treated at the practice of Dr M in [suburb omitted];
g)If a child is admitted to hospital the parents must comply with requests, recommendations and directions of the treating team;
h)The parties are restrained from attending Parent-Teacher nights at the children’s schools at the same time;
i)The father is at liberty to approach the children’s schools to obtain copies of school reports, school photographs and other documents;
j)The parties are restrained from allowing any relative or support person to be within 200 metres of the children at changeover;
k)The parties are restrained from recording any changeover;
l)Changeovers are to be at school where relevant, otherwise at the [C] Police Station;
m)The parent delivering the children to the police station must arrive 5 minutes early, the other parent must take the children away immediately and the delivering parent must wait for another 5 minutes before leaving;
n)If a child is not at school on a changeover day the parent concerned should deliver the child to the police station 30m minutes later than the changeover time;
o)The children’s school uniforms and other school equipment are to accompany the children and be returned clean and in good repair;
p)The parties are restrained from discussing the orders and the proceedings with or in the presence of the children;
q)The parents are restrained from using physical discipline on the children;
r)Communication is to be by email or SMS;
s)The parents should facilitate the children telephoning the other parent;
t)The parties must give 7 days notice of any change of address or telephone number;
u)The ICL has permission to provide copies of these orders to the children’s school, Ms D, the children’s general medical practitioner and [C] Family Support Service; and
v)The parents must bring the children to the office of the Independent Children’s Lawyer to have the orders explained to them.
The father sought orders additional to those agreed. The additional orders which he sought were set out in three documents:
a)Paragraphs 5, 9, 12 and 18 of the Minute of Consent Orders;
b)A partly typed and partly handwritten Minute which was tendered and marked as Exhibit 2;
c)A handwritten minute marked as Exhibit 3; and
d)A further handwritten Minute marked as Exhibit 6.
Mr Campton pointed out that there was nothing in the Minute that formed Exhibit 2 that was in dispute, but conceded that there were matters in dispute in Exhibit 3.
Evidence
The parties relied on their affidavits. The mother gave oral evidence and was cross-examined by Counsel for the father.
Counsel for the mother sought that evidence should be taken from
Dr W. Dr Wgave evidence by telephone on the final day of the hearing.
The mother stated that she had become the [omitted] for the school. She had been working in the [omitted] since the previous year. She has attended the [omitted] on both [Thursdays and Fridays]. She said that she had to be at the [omitted] by 9.00 am on Thursdays and Fridays to deal with [omitted].
The mother, in reply to a question from the Bench, said that the [omitted] was situated near to the front gate of the school, less than 10 metres from it.
Dr W was asked by counsel for the mother about several of the father’s proposed parenting orders. His evidence was that orders made need to take into account that there may be some change of heart by the parties but assume that the pattern of their behaviour is to continue. The parties should have minimal communication. The children should live with the mother.
Noting that the mother was seeking sole parental responsibility, Dr W said that, given the parties were in constant conflict, it would be likely to escalate into more conflict. If there were any joint parental responsibility it would lead to more conflict.
Dr W was also of the view that the children spending time with the father during the week would be bad because of the number of changeovers that it would involve. Midweek time would have the effect of doubling the number of changeovers. He noted that the father had said that it took the children a little while, a day or two, to settle into his home.
If the children were to have a three day weekend including overnight time with their father, this would be a better arrangement than a weekend and a separate day, as it would give the children a better experience with their father.
Dr W further said that he saw no difficulty in the proposal for the children to spend half of the school holidays with their father.
Dr W was asked to consider the father’s proposed orders restricting the parties’ ability to enrol the children in extra-curricular activities that impinged the other party’s time. He said that extra-curricular activities had been a “somewhat fraught issue” and an order along the lines proposed by the father in the Minute marked Exhibit 3 would have the effect of reducing conflict and would therefore have some merit. In plain language, if a parent were to enrol a child into something, they are not entitled to expect that if it occurs in the other parent’s time they will necessarily go. The children would miss out on activities, but the disadvantage is outweighed by the fact that conflict is avoided.
Further, Dr W said in evidence that there was benefit in having a fixed time for the children to speak to the father on the telephone. [Z] is still quite young and a routine is not a bad idea. [Y] is still relatively young, also.
It was Dr W’ view that the Court should make orders that would minimise the opportunities for the parents to run into each other, although the Court should not make orders like an apprehended violence order.
Neither Mr Campton for the father nor Ms Falloon for the Independent Children’s Lawyer sought to cross-examine Dr W.
Submissions
Ms Falloon submitted that the objective was to provide an endpoint to parental conflict. The children have a meaningful relationship with each parent and they are flourishing educationally.
Thus the children need:
a)continuation of these meaningful relationships;
b)shielding from conflict; and
c)a check on the ability of any one parent to make decisions that would impact on the children and the time they spend with the other parent.
The Independent Children’s Lawyer supports the proposal that the mother should have sole decision-making power in respect of those matters that most directly impact on the children’s lives but the father should be consulted on maters such as changing the children’s names.
It was further submitted that the orders sought by the father were not inconsistent with Dr W’s evidence to the Court and his expert report.
Ms Falloon submitted that it was not sufficient for the mother to say that arrangements for telephone communication between the father and the children had been made but “just had not worked”. She relied on the decision of Stevenson v Hughes[3], where it was held by the Full Court of the Family Court that an access order (to use the old terminology) imposes an obligation which goes beyond mere passive non-interference and imposes a positive obligation to encourage that access.[4]A similar obligation arises with telephone communication.
[3] (1993) FLC 363
[4] (1993) FLC 363 per Nygh J at 79,813
The Independent Children’s Lawyer supported the proposed order in the Minute Exhibit 6 restraining the parties from changing the children’s names or applying for a passport for the children.
Counsel for the mother, Mr Lee, submitted that the mother would not oppose the proposed orders restricting the parties from changing the children’s surnames but raised the question whether the restriction would apply to the use of a nickname for one of the children. He also submitted that the mother would consent to an order restraining the parties from applying for passports for the children without the permission of the other party, such permission not to be unreasonably refused
One point that Mr Lee raised was when alternative weekend time for the father should commence after school term resumes. The mother was of the view that the father should have the first weekend after school goes back if the children had spent the first half of the school holidays with him, but that he should have the second weekend if the children had spent the second half of the school holidays with him. The reason for that is that, in the latter case, the children would return to the mother at the end of the school holidays but would be back with their father the following weekend.
The mother had difficulty with an order prohibiting the parties from enrolling the children in any activity that would have the potential to impinge on the other’s party’s time with the children, on the basis that this order would prevent the mother from enrolling the child in that activity at all.
The mother also sought a relaxation on the injunction against her being present at the school for a period of 30 minutes before or after the time when the father would be delivering the children to school or picking them up after school, because of the difficulties it could cause her in her role in the school [omitted].
Counsel for the father submitted that there were gravely disturbing aspects of the submissions made on behalf of the mother.
First, there appeared to be a self-fulfilling prophecy that arrangements will not work. The mother, he submitted, was seeking endorsement of her conduct in shutting the father out.
Second, the mother had conducted the proceedings on the basis that she had some understanding of the issues between the parties. However, the submissions on her behalf implied that there were issues about matters where the mother had not sought relief.
Mr Campton endorsed the position taken by the Independent Children’s Lawyer in suggesting a commonsense approach based on Dr W’ evidence.
This was the first time the parties had reached a consensus position on the basics of the parenting issues, but this was only after a substantial progression in the father’s approach. It was submitted that where there was a commonsense approach to parenting issues the mother would react in an oppositional way.
Mr Campton submitted that the Court should heed the Independent Children’s Lawyer’s “insightful submission”. All prior parenting orders should be discharged.
It was further submitted that there was nothing in the Minute marked Exhibit 2 that was in dispute. All the issues in dispute were in the Minute Exhibit 3.
Mr Campton submitted that the Court should make the order providing that the father should spend time with the children for the first weekend of each school term irrespective of which half of the school holidays they spent with their father. This would provide the parties with certainty and avoid conflict6. Also, if the arrangement meant that the children occasionally spent one extra weekend with their father, on his calculations it would only amount to about four extra weekends over the next five years.
The Relevant Law
Section 60CA of the Family Law Act makes it clear that when a Court is deciding whether to make a parenting order it must regard the best interests of the child (or children) concerned as the paramount consideration.
Section 60CC of the Act sets out how a Court determines what is in a child’s best interests, which involves a consideration of the matters set out in subsections (2) and (3) of section 60CC. These are known respectively as the “primary considerations” and “additional considerations”.
When making a parenting order, the Court is required by section 61DA of the Act to apply a presumption that it is in the best interests of the children concerned for their parents to have equal shared parental responsibility for them. The presumption does not apply in cases of abuse or family violence (s. 61DA(2)), and 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 for them.
I have considered all of the above matters.
Conclusions
The mother has sought an order for sole parental responsibility for the children and the parties have consented to orders relating to the issue of parental responsibility. The mother will be required to advise the father in writing of the need for any decision to be made and provide him with all relevant information. If reasonably possible, in exercising parental responsibility the must consider any views expressed in writing by the father.
When the children are living with the mother or spending time with the father, the mother and father respectively will be responsible for the children’s day to day care, welfare and development.
This is not a case where the presumption of equal shared parental responsibility would be in the children’s best interests. The lengthy history of parental conflict and the lack of communication between them would make equal shared parental responsibility unviable. It is clear from the Single Expert Report of Dr W that the opportunities for contact between the parties should be reduced as far as possible, to reduce the likelihood of further conflict between them. The only exception to this is that an order will be made that the parties will have equal shared parental responsibility in respect of the children’s religious practice and upbringing.
However, the terms of the proposed order connecting equal shared parental responsibility to the children’s names or travel outside Australia seems problematic. The father’s alternate proposed order, set out in Exhibit 6, restraining the parties from changing the children’s names or applying for passports without consent or order of the Court appears preferable and more workable. I am not persuaded that such an order would have an effect on the use of a nickname, as the mother has submitted, but the order will specify a restriction on the change of the children’s surname. There is no evidence that either party proposes to change the children’s given names.
Otherwise, the mother will have sole parental responsibility for the children.
There have been allegations of family violence between the parties but this is not a case where there is a risk of violence or abuse to the children. It is clear from the evidence of Dr W and his Report that the children have a close and meaningful relationship with each of their parents.
The children are relatively young. [X], who was born [in] 2000, is the eldest of the three. She spoke freely to Dr W and expressed positive views about both parents, although she expressed disappointment about missing out on [activity omitted] camps on the weekends when she is with her father. She also said that:
…she does not think he is going to let her go to the [omitted] in 2013. She indicated that she was very disappointed about this if it happens and explained that the [omitted] only occur every three years and that by the time the next one comes up in 2016 she will be too old for [activity omitted]…so she has only one chance to go to the [omitted].[5]
[5] Single Expert Report page 33
This is a matter that the father might wish to consider.
[Y] was born [in] 2003. He was reluctant to discuss his views about the family situation with Dr W:
He was quite happy to talk to me about school, friends and activities but as soon as I touched on the subject of his family, he would turn his attention back to his play and provided very non-committal or no responses. I tried to ask a bit about living at his mother’s house and his father’s house but he was unresponsive to those questions.[6]
[6] Ibid page 36
It can be inferred that a clear arrangement between the parents, setting out a definite routine that would reduce the likelihood of conflict, would be beneficial to [Y] and to his sisters as well.
[Z] is the youngest child. She was born [in] 2005. She was not particularly forthcoming in her views. Dr W reported:
I tried to explore a bit about life in both households but she was fairly unresponsive to these enquiries…[7]
[7] Ibid at 41
The parties have not, until recently, shown a willingness to facilitate and encourage a close and continuing relationship with the other party, but the fact that they have consented to a number of orders is an encouraging sign.
There will be no major effect on the children’s circumstances as a result of these orders, except insofar as to end the litigation between the parties and bring about a situation where the children will live with their mother and spend time with their father without ongoing conflict.
There is no real practical difficulty or expense in the children spending time with each parent.
The parents have a capacity to provide for the children’s needs, notwithstanding their differences. The children are doing well at school.
By consenting to various parenting orders, the parties are demonstrating a positive attitude to the children and the responsibilities of parenthood.
The orders to be made are final orders. Some are by consent; other proposed orders are not the subject of any contest. In some cases, the objections to the proposed orders are relatively minor. It is unfortunate that the parenting matter did not settle completely, but orders will be made that should be in the best interests of the parties. This should reduce the likelihood of further litigation.
As to the orders sought about calculating date on which the father’s alternate weekends with the children will recommence once school term starts, I am of the view that the mother’s submissions have some merit. Accordingly, the father’s time will recommence on the first weekend of each term where he has had the children with him for the first half of the school holidays, otherwise it will be the second weekend. If the children have spent the second half of the holidays with the father, it would seem preferable that the first weekend of term should be with the mother.
The mother should provide the father with a calendar of proposed extra-curricular activities or sporting activities, if those latter activities do not come within the definition of “extra-curricular”. If the father is made aware of those activities in plenty of time, he may well be more disposed to allowing the children to attend. [X] would certainly be pleased to attend the [activity omitted] next year, based on Dr W’s Report. I am not of the view that the father will necessarily stop the children from attending any activity that occurs in his time with the children.
There is merit in the proposal that the parents stay away from each other at functions which they both attend. Conflict between the parents at such an activity would be either embarrassing or distressing to the children, or both. An exception will be made for emergencies affecting the children’s health or safety.
Consideration has been given to the proposed order restraining the mother form being within 200 metres of the children’s school 30 minutes before or after the times when the father would be attending to deliver or pick up the children. Mr Campton has argued that this provision has been in place before and has worked, but that does not necessarily mean that it should continue on a final basis. In my view, 100 metres and 15 minutes should be sufficient, noting the mother’s responsibilities with the school [omitted].
There should be a regular time for the children to speak to their father on the telephone during the school term. It is difficult to see that there is any valid reason for the mother to submit that the arrangement has not worked. The parents have an obligation to make it work. Circumstances may dictate that a call cannot be made precisely at 7:30, but a thirty minute time span between 7:30 and 8:00 pm should suffice.
It was submitted on behalf of the mother that where orders refer to the consent of the parties, a rider should be added that this consent will not be unreasonably refused. The history of conflict between the parties suggests that this is just asking for trouble and would the potential to bring about further litigation.
The Orders in the Minute which is Exhibit 2 are not the subject of any contest and will be made as they stand.
The mother’s submission that the proposed order restricting a party from enrolling or registering the children in any activity that would take place on a day when the children were with the father effectively prohibits enrolling the children in any activity at all is not accepted. As Dr W pointed out in his evidence, the children will accept, as [X] already has done, that if the mother arranges activities for the children, they cannot expect to go to them if they take place during the father’s time with the children. It goes no further than that.
Those are the reasons for the parenting orders made in this matter.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 23 March 2012
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