Childers and Childers
[2014] FCCA 2905
•12 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHILDERS & CHILDERS | [2014] FCCA 2905 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – parental responsibility – equal shared parental responsibility – best interests of the children –where parties have three children – where parties’ daughter is now an adult – where Family Consultant recommends that no parenting orders be made for parties’ elder son aged 16 years – where parties’ second son is aged 13 years – where parties agree son aged 13 years should live with each parent in an equal time arrangement on a week-about basis. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 65H |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR CHILDERS |
| First Respondent: | MS CHILDERS |
| File Number: | PAC 2831 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 31 October 2014 |
| Date of Last Submission: | 31 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Godden |
| Solicitors for the Respondent: | Godden Lawyers |
| Independent Children's Lawyer: | Mr Holmes |
| Solicitors for the Independent Children's Lawyer: | KDB Holmes Solicitors |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children X born (omitted) 1998 and Y born (omitted) 2001.
The father and the mother will each have responsibility for day to day decisions concerning the care of the children when the children are living with them or spending time with them.
The child X (otherwise known as “X”) is to live with each of the parties as follows:
(a)With the mother from immediately after school on Friday of the first week of the fortnight during the school term until the commencement of school the following Friday; and
(b)With the father from immediately after school on the Friday of the second week of the fortnight during the school term until the commencement of school the following Friday;
(c)For the Autumn, Winter and Spring school holidays in each year:
(i)With the mother for the first week of the fortnight during the school holidays from 3:00 pm on the Friday until 3:00 pm the following Friday; and
(ii)With the father for the second week of the fortnight from 3:00 pm on the Friday until 3:00 pm the following Friday; and
(d)During the December/January school holiday period with the father for the first half of the holiday period excluding Christmas Eve, Christmas Day and Boxing Day which days are the subject of Orders (6) (a) and (b) following and with the mother for the second half of the school holiday period.
Notwithstanding the provisions of the immediately preceding Orders the child X will otherwise spend time with the father as follows:
(a)In 2014 and all even numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(b)In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(c)On the father’s birthday being (omitted) 2015 if the child X is otherwise in the care of the mother on that day then from immediately after school until the commencement of school on the following Monday 31 August 2015;
(d)If Father’s Day falls on a weekend when the child X is otherwise in the care of the mother then from immediately after school on the Friday before Father’s Day until the commencement of school on the following Monday; and
(e)At such other times as the parties shall agree.
Notwithstanding the provisions of Order (4) above the child X will spend time with the mother as follows:
(a)In 2014 and all even numbered years thereafter from 10:00 am on Christmas Day until 10:00 am on Boxing Day;
(b)In 2015 and all odd numbered years thereafter from 10:00 am on Christmas Eve until 10:00 am on Christmas Day;
(c)On the mother’s birthday being (omitted) 2015 if the child X is otherwise in the care of the father from immediately after school on the Friday until the commencement of school on the following Monday;
(d)If Mother’s Day falls on a weekend when the child X is otherwise in the care of the father then from immediately after school on the Friday before Mother’s Day until the commencement of school on the following Monday; and
(e)At such other times as the parties shall agree.
In the event of a significant event such as a wedding, engagement, christening or funeral the parties are to inform each other of their wish to spend time with the child X as soon as is reasonably practicable and make such arrangements as are reasonable in the circumstances.
Changeover between the parties where the child X is to go from the care of one party to the care of the other will take place at the child’s school if on a school day or otherwise at the home of the child’s maternal grandparents.
Notwithstanding the provisions of Order (8) above if the child is spending time with his paternal grandparents in Queensland during the school holidays and the mother is also holidaying in Queensland during that time then changeover between the parties will take place at the McDonald’s Family Restaurant at (omitted) in the State of Queensland.
The parties must keep each other informed of their current residential address, telephone numbers and email address and notify each other of any change within seven (7) days of such change occurring.
In the event of a medical or other emergency the party who has the care of the child X at the time must immediately notify the other party by SMS.
In the event that the child X suffers a serious illness or injury the party who has the care of the child must inform the party of the relevant details and provide the other party with details of the hospital where the child is being treated and the names and addresses of any treating doctors as soon as is reasonably practicable.
The parties are restrained by injunction from abusing, criticising or denigrating the other party in the presence or hearing of either of the children X or Y.
The parties are restrained by injunction from discussing these proceedings or the contents of any documents filed in these proceedings with either of the children X or Y.
Each party must be responsible for the provision of a school uniform, sporting uniform and other clothing for the child X whilst he is in their care in accordance with these Orders and ensure that he is returned to the care of the other party with school and sporting uniforms.
So far as is reasonably possible the parties must ensure that the child X receives medical treatment from the (omitted) Medical practice except in cases of emergency.
The parties are to ensure that the child X attends school organised sporting and extracurricular activities as agreed between the parties.
The parties are restrained from attending any extracurricular and sporting activities occurring at the time the child is living or spending time with the other party in accordance with these Orders unless by prior arrangement with the other party.
Each party is to make arrangements with X’s school and sporting bodies so as to receive copies of school reports, school notices, newsletters, information about school photographs and other information normally provided to parents of children attending the child’s school.
The Application is adjourned to Wednesday 10 June 2015 for final hearing to continue to 11 June 2015.
THE COURT NOTES THAT:
(a)The father has agreed to be responsible for meeting the costs of the child’s membership of sporting groups and registration for sports;
(b)The mother has agreed to be responsible for maintaining the child X in a private health fund;
(c)The parties have agreed that no further parenting Orders need be made about arrangements for the child X.
(d)The next birthday of the child X falls on (omitted) 2015 which is a day when the child will be in the care of both parties at different times of the day.
IT IS NOTED that publication of this judgment under the pseudonym Childers & Childers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 2831 of 2012
| MR CHILDERS |
Applicant
And
| MS CHILDERS |
First Respondent
REASONS FOR JUDGMENT
Applicant
This is an Application for Interim Parenting Orders in respect of the parties’ son Y, known as “Y”. The parties have one other son, an older boy named X, but they have agreed that they do not seek any specific parenting orders in respect of X, who is now aged 16 years.
Each party seeks orders providing that X should live with them on an equal basis, but they differ as to how those arrangements should work. They also differ as to the venue for changeover, when X goes from the care of one parent into the other.
The substantive Application is listed for final hearing on 10 and 11 June 2015, but the parties need interim orders to cover the intervening period.
Background
The father was born on (omitted) 1968.
The mother was born on (omitted) 1970.
The parties commenced their relationship in 1991 and were married on (omitted) 1994. They separated on 9 June 2011 and were divorced by Order of this Court on 20 August 2012 at the Parramatta Registry of the Court.
There are three children of the marriage.
The parties’ daughter, Z, was born on (omitted) 1996. She has now attained the age of 18 years and, consequently, no parenting order can be made in respect of her in accordance with s.65H of the Family Law Act 1975 (Cth). Z has elected to live with her mother.
The child X, who turned 16 on (omitted) this year, has elected to live with his father. The parties are not seeking parenting orders in respect of X. I note that the Family Consultant who prepared the Family Report recommended that the parties should share parental responsibility for both X and Y but that no parenting orders should be made for X’s living arrangements.
The father commenced proceedings between the parties by filing an Application for parenting and property orders on 10 April 2013. The Application was returnable on 17 June 2013.
The parties attended a Child Dispute Conference on 9 August 2013. The Family Consultant recommended that an Independent Children’s Lawyer should be appointed and an order to that effect was made on 19 August 2013. On that same day an Order was made for the preparation of a Family Report.
On 4 November 2013 the parties entered into Consent Orders, resolving the property issues between them.
The Family Report was completed on 17 January 2014 and released to the parties on 22 November.
Orders Sought
The parties seek orders that X should continue to live with them for equal time, but the arrangements differ markedly.
The father seeks that X should continue living with his parents under an existing arrangement, which he describes in his affidavit of 27 October 2014 as:
2. The existing living arrangements are:
(a) That X lives with the Father each Thursday, Friday, Saturday, Sunday and Monday of week A and each Thursday and Friday of week B,
(b) That X lives with the Mother each Tuesday and Wednesday of Week A and each Saturday, Sunday, Monday, Tuesday and Wednesday of week B,
(c) That the father will return X to the Mother at 9.00 am each Saturday of week B, at the address of the maternal grandparents,
(d) Changeover will occur each Tuesday of week A and each Thursday by X’s attendance at school.
The father also sets out his proposals for school holiday time with the child:
6. Each School Holiday Period will commence from the first Saturday following the conclusion of a gazetted New South Wales school term and will conclude on the last Saturday prior to the next gazetted New South Wales school term commencing. During School Holiday periods X will live with the Father on the 1st, 3rd, 5thb or 7th week and live with the Mother on each 2nd, 4th, 6th or 8th week. Changeover will occur as per Clause 3 at 9.00 am.
The changeover places set out at the father’s clause 3 are:
3. Should changeover be other than as designated in clause changeover will occur at:
(a) (omitted), when the Mother is returning X to the Father.
(b) (omitted), when the father is returning X to the Mother.
The mother’s proposed arrangements, set out in a Minute of Proposed Orders, are somewhat more straightforward:
3. That X live with each parent as follows:
a) with the mother from the conclusion of school Friday until the commencement of school the following Friday; (Week A)
b) with the father from the conclusion of school Friday until the commencement of school the following Friday; (Week B).
4. During the Terms 1, 2 and 3 school holiday period the child shall continue to spend time with each parent as per Week A and Week B arrangements.
5. During the December/January school holiday period X shall spend time with the father for the first half of each holiday period and with the mother for the second half of each school holiday period.
Issues
The mother claims, although the father denies, that the issues between them are:
a)Problematic changeover/frequency of changeovers;
b)Transfer of uniforms and sports gear between homes;
c)No communication between the parents; intractable and ongoing conflict;
d)Father’s undermining of the mother, denigration of the mother and involving the children in conflict orders agreed to on an ad hoc basis;
e)Undefined holiday periods and special times causing conflict;
f)No current interim “day to day” orders for X; and
g)Inconsistency in medical care.
Evidence and Submissions
The father relied on his affidavit of 27 October 2014.
The mother relied on her affidavit of 28 October 2014.
The mother also relied on the Family Report.
The mother submitted that there had been incidents at changeover and said that the fewer changeovers there were, the better. Because of the conflict between the parties, changeovers should be at school wherever possible so that there would be no fact to face contact. Where changeovers could not take place at school, they should be at the home of her parents.
The father denied that there had been incidents at changeovers. He said he had nominated two venues, both aquatic centres, places where he had not been before.
He conceded that there were currently five changeovers every fortnight, but only one of which involved face to face contact between the parents.
The father also submitted that the mother’s proposal would involve X having to carry up to 40 kilograms of gear at changeover. Currently, the child travels by train with his brother.
The father also raised the question of X’s birthday, which falls on (omitted) each year.
He also submitted that the mother’s proposal for the Christmas school holidays was “totally unworkable” from his work point of view.
In reply, the mother’s solicitor, Ms Godden, told the Court that on her instructions the child would not have to carry large amounts of gear to changeover, as most of his school gear stays at school.
The Independent Children’s Lawyer, Mr Holmes, submitted that the only independent evidence was in the Family Report, which he considered was “very insightful”. In particular, he referred the Court to paragraphs [40] and [41] of the Family Report.
The Family Report
The Family Report was prepared by a Family Consultant at the Sydney Registry of the Court, Ms P. Paragraphs [40] and [41] of her Report, to which the Independent Children’s Lawyer referred the Court, are quoted in full:
40. As previously stated, it is concerning that the parental conflict could weigh heavily on X and, if it continues, X may suffer a breakdown in the relationship with one of his parents. Unfortunately the parental relationship seems toxic and the conflict intractable. To avoid X suffering the very serious emotional and mental health problems which can arise from a child being caught in the middle of chronic parental conflict, it may be in X’s best interest to live primarily with one parent and to reduce the number of changeovers he has between the parents. That said, if the parent with whom X primarily lives does not support his relationship with the other parent, X’s relationship with that parent may be ruptured.
41. X expressed contentment with his current care arrangements although, through discussion, it seemed that he prefers his time in Mr Childers’ home because of his close relationship with X and inclination towards sports. In light of this, X would likely be distressed by any arrangement which reduced the amount of time he spends in Mr Childers’ home. Although X is still relatively young and will probably be compliant with Court orders, he is on the cusp of adolescence and may potentially rebel against any orders which are displeasing to him as he gets older. Given X’s very close bond with X, Y may become rebellious against an order for him to live primarily with his mother if X is not there.[1]
[1] Family Report 17.1.2014 at [40]-[41]
The Relevant law in regard to parenting applications
When the Court is considering making parenting orders, whether final orders or orders until further order (interim orders), it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII. In particular, it should have regard to the provisions of:
a)Section 60B , which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the court to regard the best interests of the child as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider whether it is both in a child’s best interests and reasonably practicable for the child to live in equal time with each parent or, failing that, substantial and significant time, where an order has been made that the parents should have equal shared parental responsibility for the child.
f)All of these matters have been considered, so far as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed further.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court in Goode & Goode[2] held that a Court at first instance must consider the matters in s.60CC of the Act that are relevant and, if possible, make findings about them, noting that:
…in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[3]
[2] [2006] FamCA 1346; (2006) 36Fam LR 422; FLC 93-286
[3] (2006) 36 Fam LR 422 at 445 [82]
In this case, the Court looks at the primary considerations set out in subsection 60CC(2). Although the relationship between the parents has been described as “toxic” and one of “intractable conflict” (hence the appointment of an Independent Children’s Lawyer), there does not seem to be any threat of physical harm to the child from abuse, neglect or family violence. There may be psychological harm from being exposed to denigrating or abusive behaviour between the parents at changeover, which the father denies, there does not appear to be any unacceptable risk of harm to the child in the care of either of his parents. There is no current family violence order in force.
Indeed, it would appear that there is a benefit to the child in having a meaningful relationship with both of his parents. There appears to be no issue between the parents on this point.
The views of the child, noting that he is now 13 years of age, are that he has some preference for living in his father’s home and would not be happy if his time with his father were to be reduced.
X appears to have a positive and affectionate relationship with each of his parents. He has a good and close relationship with his brother X, who lives with the father and appears to be estranged from his mother. He does not get along with his now adult sister Z, who lives with the mother and appears to be estranged from her father.
Equal shared parental responsibility and section 61DA of the Act
The Court is required to decide whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child does or does not apply. The mother in her Minute of Proposed Orders seeks an order for equal shared parental responsibility. The father, in his affidavit, does not seek any order.
In my view, the Court is required to consider the question. The current situation is that the child is spending equal time with each parent, albeit in a way that appears to me to be rather unsatisfactory, and each parent is committed to his welfare. Regrettably, their communication is poor.
I am satisfied that it is in this child’s best interests for his parents to have equal shared parental responsibility for him, at least on an interim basis. Section 61DB of the Act provides that if there is an interim parenting order in relation to a child, the court must, when making a final parenting order, disregard the allocation of parental responsibility made in the interim order. Thus, the allocation of parental responsibility must be considered afresh when the Court makes final parenting orders.
Section 65DAA of the Family Law Act
Each of the parents seeks an order that X should spend equal time with each of his parents, although they disagree as to the most appropriate arrangement.
I am satisfied that this is a case where interim orders should be made for Y to spend equal time with each parent. It seems clear that he would be unhappy if he were to spend less time with his father, because he has a close relationship with his brother X, who does not spend any time with his mother.
Orders that are in the child’s best interests
Whilst it appears to be appropriate to continue the equal time arrangement for Y with each of his parents, the current system appears not to be a convenient arrangement for him, as it involves five changeovers each fortnight, two blocks of five days and two blocks of two days with each parent.
The mother’s proposal is much simpler, involving a changeover each Friday, thereby reducing the changeovers from five per fortnight down to two. In addition, during the school term, changeovers will take place at school, thereby avoiding any confrontation between the parents, who appear to have a conflicted relationship. As for the father’s suggestion of changeovers at swimming pools, I cannot see any good reason to do so, certainly no good reason connected with Y’s best interests.
Where parents have a high conflict relationship, it is often a good idea for there to be a system of parallel parenting, where the child spends a week with each parent. That way, he will have the chance to settle in to each parents’ household for the week and live his life according to the customs of that household.
Another advantage of the Friday changeover as proposed by the mother is that it has the fortuitous advantage for 2015 that X’s birthday falls on a Friday, so he would spend time with each of his parents on his birthday.
The father’s proposal for mid-year school holidays may be simpler than it sounds, but it seems to be an odd way of referring to the holidays by starting the count from the beginning of the year, which appears to be what the father is doing. The mother proposes, as an interim arrangement, a simple split of half of the school holidays by following the week about arrangement that will exits during the school term. This should be relatively easy to follow.
That leaves special days like parents’ birthdays, Father’s Day and Mother’s Day. The mother complains that neither of her sons spent Mother’s Day with her this year, and blames it on the haphazard and ad hoc parenting arrangements that have been in force between the parties.
Father’s Day and Mother’s Day are not hard to work out in a situation where the Court does not see any unacceptable risk to a child of spending time with either parent. Children should be with their father on Father’s Day and with their mother on Mother’s Day.
Parents usually like to spend time with their children on their own birthdays as well as on their children’s birthdays. X’s birthday should not be a problem this year, as it falls on a Friday, which will be easy to organise with a Friday changeover. The mother’s proposal caters for the parents’ birthdays and I intend to adopt it.
These are interim orders. There is a final hearing to take place next June, when the entire question of parenting orders will be examined in detail. The orders are intended to put some order and stability into the child’s life until the final hearing. As always, the Court will regard the best interests of the child as the paramount consideration.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 12 December 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies