CHAVES & CHAVES
[2020] FamCA 418
•1 June 2020
FAMILY COURT OF AUSTRALIA
| CHAVES & CHAVES | [2020] FamCA 418 |
| FAMILY LAW – CHILDREN – With whom the children spend time – Where each of the parties proposes minor changes to the existing interim parenting orders – Where the father seeks orders for make-up time as a result of not spending time with the children during the Christmas school holidays – Where the existing orders made no specific provision for the father’s time with the children during the Christmas school holidays – Where it is not appropriate to order make-up time – Orders made for the father to spend time with the children during future Christmas school holiday periods – Applications otherwise dismissed. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA |
| Champness & Hanson (2009) FLC 93-407 Eaby & Speelman(2015) FLC 93-654 Goode & Goode (2006) FLC 93-286 McCall & Clark (2009) FLC 93-405 SS v AH[2010] FamCAFC 13 |
| APPLICANT: | Mr Chaves |
| RESPONDENT: | Ms Chaves |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 925 | of | 2019 |
| DATE DELIVERED: | 1 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 18 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Beswick Lynch Lawyers |
| RESPONDENT: | Mother in person |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
Orders
In addition to such other changes as are agreed between the parents in writing, the Orders made on 13 June 2019 are varied pending further order to provide that the father also have time with the children X born … 2009, Y born … 2011 and Z born … 2015:
(a)in the 2020/2021 Christmas school holidays and in each alternate year thereafter, from:
(i)the conclusion of the last day of school in December 2020 to 12 noon on 21 December 2020; and
(ii)12 noon on 25 December 2020 to 5.00 pm on 10 January 2021.
(b)in the 2021/2022 Christmas school holidays and in each alternate year thereafter, from:
(i)12 noon on 21 December 2021 to 12 noon on 25 December 2021; and
(ii)5.00 pm on 10 January 2022 to 5.00 pm on 26 January 2022.
Otherwise the interim parenting applications of the parties are dismissed.
Leave is granted to the parties to bring the matter back before the Court within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chaves & Chaves has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC925 of 2019
| Mr Chaves |
Applicant
And
| Ms Chaves |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interlocutory proceedings in the context of proceedings for parenting and property settlement between Mr Chaves (“the father”) and Ms Chaves (“the mother”). The interim proceedings were heard on 18 May 2020. Although additional issues were raised in the parents’ material, the only financial matters pressed and argued by the parties related to a property at Suburb J and a question of disbursements. The dispute about that property was all but entirely resolved by agreement and orders were made on 18 May 2020. I gather that the issues raised by the mother about child support will be dealt with in another jurisdiction or, if practicable and necessary, will be included in the issues addressed at the final hearing. Similarly, I take it that the other issues about costs are deferred to the final hearing.
Judgment was reserved on the interim parenting issues. I have decided not to change the existing orders, save for making provision for the children to spend time with the father during the Christmas school holidays. As with the financial issues some parenting orders sought by the parties were not addressed in submissions and I take it that those orders were no longer pressed. What follows are the reasons for the orders set out above. The parenting proceedings relate to three children: X, aged 11; Y, aged eight; and Z, aged four. The father seeks an amendment to interim parenting orders made on 13 June 2019. The mother agrees to some amendments, albeit in different terms to the father’s proposals, and she opposes other amendments.
Applications
By a Minute of Orders included in the father’s Case Outline, the father seeks the following orders in relation to parenting:
1.That the time the father spends with the children be as follows:
a.Each alternate weekend commencing after school or child care on Thursday to the commencement of school and child care on the following Monday
b.All of the July 2020 school holidays commencing upon completion of the last day of school to the commencement of school for term 3.
c.All of the September 2020 school holidays commencing upon completion of the last day of school to the commencement of school for term 4.
d.The first half of each other school holiday period commencing upon completion of school term to 12 noon on the middle Saturday.
2.In addition, the father shall be entitled to attend sports training and sports games played by the child of the marriage Y and any school assembly, award night, sports carnival, parent teacher meeting or other school event, notwithstanding that such events might not otherwise fall upon times the children spend with the father.
3.The parties shall ensure that the children have access to the iPhone or other smart phone supplied to them by the father for the purposes of facilitating telephone, SMS, FaceTime or other forms of communication with the other parent at reasonable times and on at least one occasion each day.
(Emphasis in the original)
By a Minute of Orders filed 27 April 2020 the mother seeks:
THAT PENDING FURTHER ORDER:
Parenting
1.Orders made on 13 June 2019 by Justice Loughnan, are kept in place.
2.However, if his Honour has time to consider today or in the foreseeable future, then the following alternative variations of the current 13 June 2019 orders are suggested on an interim basis. The intent here is to:
a.Provide the father time through the long school holidays,
b.While ensuring mental health management is in place,
c.Better management of the children’s school equipment and uniforms from the time spent with the father on short school holidays / weekends,
d.Clarity around handover times when school staff development or public holidays occur to reduce further contraventions occurring and
e.Reduce instances of further court applications / interim hearings.
Suggested variations of the current 13 June 2019 orders marked up here:
1.That the children of the marriage X born in 2009, Y born in 2011 and Z born in 2015 live with the mother.
2.That the father spend time with the children as follows:-
a.Each alternate weekend from completion of school Friday (or 3.15pm) to commencement of school Monday (or 8.30am).
b.The first second half of the short school term holidays commencing completion of school Friday to 12 noon on the mid Saturday through to commencement of school Monday (or 8.30am on a public holiday).
c.Such other time as agreed between the parties in writing prior.
d.The 3 nights prior or following the Christmas period is alternated each year – i.e. For the 2020 period – 3.15pm 22 December 2020 through to 3.15pm 25 December 2020 is provided for the father. For the 2021 period – 3.15pm 25 December 2021 through to 3.15pm 27 December 2021 is provided to the father. For the 2022, 2023 and beyond periods – the above is replicated.
e.The 8 nights prior and including the Australia Day holiday – i.e. For the 2021 period and beyond - 3.15pm 18 January through to 3.15pm 26 January 2021.
3.That the father’s time in accordance with order 2(a) recommence on the first second weekend following the commencement of school term.
Orders 1. 4-12 remain unchanged.
13.The parties provide evidence to each other and the independent children’s lawyer of ongoing psychiatric care and compliance with pharmacology treatment by the last day of each H School term.
14.The changeover location remains fixed as M Place, K Street, Suburb L in the state of New South Wales.
15.Each parent to facilitate a phone / video call with the other parent the children are not with on each of the children’s’ birthdays.
16.Each parent has 4 hours time with the children on Fathers / Mothers Days from 8am to 12pm and their respective parent birthdates being from 3.15pm to 7.15pm, if this Fathers / Mothers / Parent birthdate does not fall on their scheduled time for the year.
17.The Our Family Wizard application is used for co-parenting messages only.
Orders 2. through to 5. remain unchanged.
Evidence
Relevant to the parenting dispute, the father relied on:
·affidavit of the father sworn 13 May 2020.
The mother relied on:
·affidavit of the mother filed 30 April 2020; and
·affidavit of Mr C sworn 15 January 2020.
Single Expert Evidence
The single expert forensic psychiatrist is Dr E. His qualifications include the following degrees:
·MBBS from P University awarded with honours;
·Fellowship Royal Australian and New Zealand College of Psychiatrists (FRANZCP); and
·Certificate of child psychiatry, RANZCP.
Dr E’s work experience includes:
·Numerous Child Psychiatry positions at various hospitals from 1991 to 2008;
·Professional educator from 2002 to date;
·Child, Family and Adult Psychiatrist in private practice from 1993 to date.
Dr E’s interviews were conducted in late October 2019 and his report is dated 25 November 2019.
It is important to note that:
·Dr E’s report was provided in final parenting proceedings and may have no direct relevance to what should happen in the interim;
·the material read by Dr E was different to the material relied on by the parties before me;
·there was no opportunity in these interim proceedings to test the opinions of Dr E or to confirm that he continued to hold those opinions; and
·Dr E reported having concerns about the accuracy of the accounts provided by each of the parents.
Background Facts
The father is 44 years of age and the mother is 36. They started living together in May 2004 and were married in 2006. They separated for the last time on 8 February 2019.
They have three children; X, who was born in 2009 and is 11 years of age; Y, who was born in 2011, and is eight years of age; and Z, who was born in 2015 and is four years of age. Parenting arrangements after separation had the children spending something like equal time with each of the parents.
There was an interim hearing conducted before me on 13 June 2019, and after that hearing, I ordered:
1.Until further order, orders are made in terms of the document titled “Proposed Orders of the ICL” (Exhibit 1 dated 13 June 2019), as set out hereunder:
1.That the children of the marriage X born in 2009, Y born in 2011 and Z born in 2015 live with the mother.
2.That the father spend time with the children as follows:-
(a)Each alternate weekend from completion of school Friday to commencement of school Monday.
(b)The first half of the short school term holidays commencing completion of school Friday to 12 noon on the mid Saturday.
(c)Such other time as agreed between the parties.
3.That the father’s time in accordance with order 2(a) recommence on the first weekend following the commencement of school term.
4.That the Father and Mother submit to urine analysis testing under the following conditions:
a.The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration.
b.The drug testing shall meet the Australian/New Zealand Standard 4308/2001.
c.The results shall be provided to the Independent Children’s Lawyer (ICL) not later than 24 hours of receipt of the results by the parties.
d.That each of the parties shall submit to the random drug testing within 24 hours of receiving a request from the ICL and such request is to be made by the ICL by emailing the solicitor for each of the parties, or in the event that that either or both parties are longer represented then the ICL will email that party directly.
e.That the ICL shall request the father to submit for urinalysis not more than twice in four (4) week period.
5.The each of the parties shall meet their own costs associated with the testing set out in order 1 above.
6.That each of the parties shall submit to CDT testing on the terms and conditions as a set out in Order 1 save that the ICL shall make such request for CDT testing to each of the parties no more than once in each eight (8) week period.
7.That each of the parties shall provide a hair sample of not less than 3 cm in length to N Service in accordance with their direction within seven (7) days of the ICL directing that such sample be given.
8.Such sample is given for the purpose of analysis of illicit drug use and use of alcohol.
9.That each of the parties shall direct N Service to provide a copy of the results to the ICL.
10.That each of the parties shall each meet the cost of such testing.
11.That Dr E be appointed as the single expert and the ICL has leave to file consent orders in chambers regarding his appointment.
12.That each of the parties shall not denigrate each other to or in the presence or hearing of the children and shall use their best endeavours to ensure that no third party does so.
2.The Court Notes that the orders in terms of paragraphs 4-12 inclusive of that document are made by consent.
3.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
4.The proceedings are adjourned to 10.00 am on 6 December 2019 for the purposes of considering a report by Dr E.
5.Leave is granted to the parties to administratively adjourn that date in the event that Dr E’s report is not available by that date or the parties or the parties are otherwise not ready.
The substantive proceedings are in the docket of Justice Henderson and are listed before her Honour on 7 July 2020 for trial directions if practicable.
The law as to Parenting
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in subsections 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
In Goode & Goode (2006) FLC 93-286 (“Goode”) the Full Court addressed the practicalities of interim parenting determinations in the context of recent amendments to Part VII of the Act. At 80,901 the Full Court said:
68.... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Eaby & Speelman(2015) FLC 93-654 the Full Court (Thackray, Ryan and Forrest JJ) noted the reference in Goode to disputed facts in interim hearings:
18. ...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In SS v AH[2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. ...
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
For the purposes of the determination of these proceedings, I will set out the reasons in the following format:
(a)set out the current arrangements;
(b)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(c)where possible and relevant, consider and make findings about matters set out in s 60CC;
(d)assess the proposals against the best interests criterion;
(e)consider and make findings about living arrangements; and
(f)make orders.
The Current Arrangements
The children currently reside with the mother and during school term they spend each alternate weekend with the father. The orders provide for that time to extend from the completion of school Friday to the commencement of school Monday. Under the COVID-19 arrangements the children’s schooling has been interrupted. The mother said something to the effect that the older children are gradually returning to school, and that they attended for two days in the week of 11 May 2020 and three days in the week of 18 May 2020. The orders currently provide for the children to spend time with the father for the first half of the short school term holidays commencing from the completion of school Friday to 12 noon on the middle Saturday. The orders do not specify any time during the Christmas school holidays, save that they provide for other time as agreed between the parents. The parents were not able to agree to any time in the 2019 – 2020 Christmas school holidays.
The Parties’ Proposals
Although the mother’s formal position is that there be no change to the existing orders, each of the parents allows for some amendments to the June 2019 orders.
The father proposes:
(a)that his time on each alternate weekend during school term commence after school or child care on Thursday rather than Friday;
(b)that he have the children for all of the July and October school holidays in 2020 so as to make up for time he lost in the last Christmas school holidays;
(c)that he otherwise have the first half of each other school holiday period commencing upon completion of school term to 12 noon on the middle Saturday;
(d)that he be entitled to attend sports training and sports games played by the child of the marriage Y and any school assembly, award night, sports carnival, parent teacher meeting or other school event, notwithstanding that such events might not otherwise fall upon times the children spend with the father;
(e) that the parties ensure that the children have access to the iPhone or other smartphone supplied to them by the father for the purposes of facilitating telephone, SMS, FaceTime or other forms of communication with the other parent at reasonable times and on at least one occasion each day.
The mother proposed no change to the orders but offered potential variations to the orders in the event that the Court had time to consider those suggestions “today or in the foreseeable future”. These were to the effect:
(a) that the father spend time with the children each alternate weekend from completion of school Friday (or 3.15 pm) to commencement of school Monday (or 8.30 am);
(b)that he spend time with the children for:
(i)the second half of the short school term holidays commencing 12 noon on the mid Saturday through to commencement of school Monday (or 8.30 am on a public holiday); and
(ii)the three nights prior to, or following, the Christmas period alternating each year – i.e. for the 2020 period: from 3.15 pm 22 December 2020 to 3.15 pm on 25 December 2020; and for the 2021 period: from 3.15 pm 25 December 2021 to 3.15 pm on 27 December 2021[1], and that those arrangements be repeated in that pattern thereafter;
[1] The mother has referred to a period of three nights but only proposes two nights. No explanation was provided for this.
(iii)for the eight nights prior to and including the Australia Day holiday – i.e. for the 2021 period and beyond: 3.15 pm on 18 January through to 3.15 pm on 26 January 2021; and
(c) that the father spend such other time with the children as is agreed in advance between the parties in writing;
(d) that the father’s time during school term recommence on the second weekend following the commencement of school term;
(e)that Orders 1 and 4-12 made on 13 June 2019 remain unchanged;
(f) that the following additional orders be made:
13. The parties provide evidence to each other and the independent children’s lawyer of ongoing psychiatric care and compliance with pharmacology treatment by the last day of each H School term.
14. The changeover location remains fixed as M Place, K Street, Suburb L in the State of New South Wales.
15. Each parent to facilitate a phone / video call with the other parent the children are not with on each of the children’s’ birthdays.
16. Each parent has 4 hours’ time with the children on Father’s/Mothers Day’s from 8.00 am to 12.00 pm and their respective parent birthdates being from 3.15 pm to 7.15 pm, if this Father’s/ Mother’s/Parent birthdate does not fall on their scheduled time for the year.
17. The Our Family Wizard application is used for co-parenting messages only.
The mother records that the intent of her proposals is to:
2.1. Provide the father time through the long school holidays,
2.2. While ensuring mental health management is in place,
2.3. Better management of the children’s school equipment and uniforms from the time spent with the father on short school holidays / weekends,
2.4. Clarity around handover times when school staff development or public holidays occur to reduce further contraventions occurring and
2.5. Reduce instances of further court applications / interim hearings.
The range of dispute on the key areas seems to be:
(a)whether there should be an extension of the father’s time during school term by an additional day each alternate weekend;
(b)whether the father should have the children for all of the July and October school holidays in 2020; and
(c)whether the Christmas school holidays should be evenly divided between the parents and whether the father should have the children the first half of those holidays.
The Independent Children’s Lawyer (“ICL”) proposes the following:
(a)that for the purposes of orders about school holiday time, the first and last days of the school holidays be as gazetted by the NSW Government. It should be noted that “pupil free” or “staff development” days not be included as part of the school holidays;
(b)that the father have time with the children:
(i)in the 2020/2021 Christmas school holidays and in each alternate year thereafter, from:
·the conclusion of the last day of school in December to 12 noon on 21 December;
·from 12 noon on 25 December to 5.00 pm on 26 December; and
·for the first half of the balance of the period from 5.00 pm on 26 December to 5.00 pm on the day prior to the last day of the Christmas school holidays.
(i)in the 2021/2022 Christmas school holidays and in each alternate year thereafter, from:
·12 noon on 21 December 2021 to 12 noon on 25 December; and
·for the second half of the balance of the period from 5.00 pm on 26 December 2021 to 5.00 pm on the day prior to the last day of the school holidays.
Section 60CC Considerations
Section 60CC specifies the following considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2]McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3]Champness & Hanson (2009) FLC 93-407.
Both parties seek orders that would have the children spending time with each parent, unsupervised, overnight and for block periods. It follows that it is agreed that the relationships of the children with each of their parents are meaningful.
(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.
‘Abuse’ and ‘family violence’ are defined terms.
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The mother described many incidents of physical and sexual violence inflicted on her by the father. She describes incidents during which he was verbally abusive, made denigrating comments to her and spat on her. When asked about those allegations, the father told Dr E that he denied it all. Dr E detected a level of exaggeration in the mother’s accounts. On the other hand the father conceded to Dr E that aspects of his behaviour that had been problematic.
The father was found guilty on three charges of assaulting the mother. As at October 2019 he was on an 18-month Good Behaviour Bond and under the supervision of a parole officer.
Despite that history, Dr E does not consider that the children are at risk of physical or psychological harm in either household. However, Dr E thought it probable that the children have been exposed to family violence in the past. Dr E reported that the children continue to experience stress in the context of parental mistrust which is particularly evident at handovers.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children are 11, eight and four years of age respectively.
Dr E identified X as a bright and articulate girl who is strongly aligned with her mother. X told Dr E that she wants to primarily reside with her mother. She described her experience of shared care between her parents as stressful.
Y spoke positively at interview about his experience with both sides of the family. Dr E reported that Y strongly identified with his father, while maintaining a close relationship with his mother. He said that he felt safe with his mother and that living with his father was calm and peaceful. He enjoyed the week about arrangement when that was in place and would like to return to that arrangement. He said that at times each of his parents shouted. Sometimes his mother was uncontrolled and sometimes his father became angry. However, Dr E opined that Y seemed less aware and preoccupied with exposure to parental conflict.
The mother records that on return from time with the father, Y and Z have said that they missed her.
Dr E considered that Z was too young to express any wishes.
(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);
Dr E observed a delightful rapport between the children and the mother. He noted that she had some difficulty in containing their behaviour at times.
X was slower than the other children to warm to the session with her father but Dr E reported that the father engaged in a warm manner with all three children. He observed the interactions with the father to be age appropriate and discerned no indication that the children felt distressed or fearful.
Dr E observed X intervening on behalf of her mother in relation to the father having possession of the mother’s phone on the day of the interviews.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
This is not a relevant consideration.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
This is not a relevant consideration.
(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;
It is possible that one or more of the children will be unhappy about spending a longer period with one parent and away from the other. Dr E supports equal time during the Christmas break.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
To date, the parents’ recent relationship is poor. Their failed negotiations for the father’s time with the children last Christmas demonstrates the difficulties they have.
(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;
Dr E reported that the father told him that the mother was a very good mother and a very good person.[4] The father recognised that all the children loved her and he told Dr E that he had no issues with the children being in the mother’s care.
[4] Paragraph 45 of Dr E’s report.
Those comments were made notwithstanding that the father alleges that the mother was violent to him. He alleged that the mother stabbed him. A forensic pathology report in the criminal proceedings concluded that stab wounds were self-inflicted by the father. The father told Dr E that the mother punched him while holding a knife and that he decided not to challenge the decision of the criminal court and decided to take the matter no further.
As Dr E reported, the mother has a history of anxiety and Bipolar Disorder. In 2013 the mother experienced an onset of depressive symptoms and then a rapid cycling mood between January and June 2014. The mother told Dr E that at that time she had been unfaithful to her husband, ran 10-15 kilometres a day and socialised excessively. She experienced hyper-sexuality, irritability, pressured thoughts and insomnia. There was a cycle of excessive energy during upswings of mood and fatigue during downswings. Dr E recorded that the mother’s condition was assertively addressed by her treating psychiatrist, and that the mother was compliant with that treatment.
Dr E reported that the father also had symptoms of depression, including lack of motivation and fatigue since 2015. The father reported to Dr E, depressed and stressed mood with associated feelings of helplessness and hopelessness regarding the Court process, the financial stress associated with that and importantly, the loss of contact with his children. He said that he had not experienced any suicidal thoughts or behaviour. He did describe impaired concentration and irritability. The father had been prescribed an antidepressant on three occasions but discontinued that treatment due to side effects. The father attended six sessions with a psychologist in 2019 but now manages his depressive symptoms with regular exercise. The father conceded that a recent communication of Eminem lyrics addressed to X was inappropriate but he contended that it had not been presented to the child but was intended as a communication directed towards the mother.
The mother continues to support the father having unsupervised time with the children, including time overnight and for block periods. That suggest that she has some faith in his capacity.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This criterion was not highlighted during submissions.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Neither parent has protected the children from conflict. Otherwise, the facts suggest that the parents are capable of meeting the needs of the children.
(3)(j) any family violence involving the child or a member of the child’s family;
I have referred to the father’s convictions for family violence. The mother makes further allegations that are denied by the father.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
An Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother at the Local Court on 23 April 2019 and is in place for a two year period. The terms of the ADVO initially prevented the father from communicating with the mother at all, although a provision has since been added permitting him to contact her through the Our Family Wizard application.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings and it is unlikely that they will bring the entire proceedings to an end.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
Because of the father’s convictions for assault, there is no presumption in favour of equal shared parental responsibility. No issue was raised before me about parental responsibility.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the child’s best interests does not apply and no order about parental responsibility is sought.
Living Arrangements
There is no requirement to consider any particular pattern of living arrangement beyond those proposed by the parties.
The father seeks an extension of the current provision for his time with the children during school term. The mother opposes that and there is no support from the ICL or Dr E. The COVID-19 arrangements have disrupted the school/pre-school attendance of many children. As these reasons are being prepared, substantial steps are being implemented to return to normal school attendances. I made orders in June 2019 for school term time and there is no substantial reason to revisit that issue.
The father seeks make-up time for the time he did not have with the children in the 2019/2020 Christmas school holidays. The mother opposes that make-up time and the ICL also opposes that time. The first thing to say is that there is no requirement in orders or legislation for make-up time. All parenting orders are to be made in the best interests of the children. Unless agreed, make-up time would normally only arise where ordered time has not occurred as a result of a breach of court orders. That is not the situation here. The existing orders make no specific provision for the Christmas school holidays. As the annexures to the father’s affidavit demonstrate, the parties and the ICL engaged in negotiations about the father having time with the children in the last Christmas school holidays. I can find no evidence of a concluded agreement about that time. It is hard to say where the fault lies in the failure to reach an agreement. Some of the mother’s proposals came with extensive conditions, including conditions about the property issues between the parties. On the other hand the father largely stuck to his proposals and did not engage with most of the mother’s concerns. I gather that the father took matters into his own hands in the middle of January and unfortunately a Recovery Order was necessary.
Importantly, there is nothing in the father’s affidavit to support this aspect of his application.
I made orders in June 2019 providing for the shorter school holidays to be shared between the parents. There was no challenge to that order and no reason has been established to change it for the upcoming two school holiday periods. The orders about the shorter school holidays will not be changed.
Ultimately the parents seek and the ICL supports provision for the children to spend time with the father in the Christmas school holidays. Dr E recommends a continuation of the current arrangement, which he describes as involving primary residence with the mother and equal time in the school holidays.
The mother says that she harbours concerns about the children’s time with the father. She alleges that the father harmed himself in February 2019 and that he was abusive to her during the marriage. The mother is concerned that Dr E has placed too little weight on the father’s conduct in making his recommendations. The mother was concerned by the father’s retention of the children in the middle of January 2020, which lead to the issue of a Recovery Order. The mother says that the father has threatened her and she is concerned as a result of those threats. The mother gives evidence that on return from the father’s home, the younger children have expressed that they miss her. In April, Z said that she did not know when she was going to see her mother again. On the other hand, the mother concedes that the father’s time with the children in the shorter school holidays has been satisfactory but that no period longer than eight days has been successful. I put to the mother that the father could have two separate periods of eight days and the mother accepted that argument. However the mother referred to the need for the children to have time with members of her extended family and that they lived more than right hours’ drive from Sydney.
As to the Christmas holidays, the parents’ proposals are inconsistent. Dr E recommends equal time and neither party is opposed to that in principle. The mother is concerned about the father having more than eight days in a row with the children. If the children are not at risk with the father for eight days then it is likely that they would not be at risk with him for a longer period. Having one rather than two longer periods avoids a handover, which the parents have found difficult. One longer period will address the mother’s desire that the children spend time with her relatives out of Sydney. I will make orders in the pattern suggested by the ICL. That will involve the children being with each parent for a long block of about 15 days. Consistent with the mother’s proposal but unlike those of the father, the ICL’s proposed orders will permit the sharing of the Christmas period and although longer than the mother wants, it reduces the longer period of time when the children are away from her.
I have attempted to translate the formula in the ICL’s proposal to specific dates.
Conclusion
The orders will leave the existing orders in place but will add an arrangement for the Christmas school holidays.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.
I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 1 June 2020.
Associate:
Date: 1 June 2020