Conway and Laurie - [2003] FMCAfam 159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONWAY & LAURIE

[2003] FMCAfam 159

CHILDREN – Contact – interim orders – best interest of the children – children aged 5 years and 3 years.

Cowling (1998) FLC 92-801

Applicant:

MS CONWAY

Respondent:

MR LAURIE

File No:

PAM 554 of 2003

Delivered on:

9 April 2003

Delivered at:

Parramatta

Hearing date:

9 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Sarah Bevan & Associates

Solicitors for the Respondent:

Ian Harper & Co

ORDERS

the children [X] born [in] 1998 and [Y] born [in] 2000 are to reside with the respondent father as follows:
(a)each week from 9 am on Sunday, with the exception of Mother's Day from 12 noon on the Tuesday;
(b)for not less than three hours on each of the children's birthdays and on the father's birthday;
(c)at such other times as the parties shall agreed.
the said children are to reside with the applicant mother at all other times;
the father is to have telephone contact with the children before 7 pm each Thursday evening.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 554 of 2003

MS CONWAY

Applicant

And

MR LAURIE

Respondent

REASONS FOR JUDGMENT

Application

The matter before the Court today relates to issues between the parties about residence and contact. In effect, what is sought is that there should be orders for joint residence with the two children residing mainly with their mother but spending time each week with their father. Now, the two children concerned are [X] who was born [in] 1998 and [Y] who was born [in] 2000.
The thing, which should not be ignored at this stage, is that the parents concerned have only separated comparatively recently. They separated in early February and it is now early April and it is not surprising that emotions are still running high and because there is a recent separation there are a variety of issues the parents need to resolve in their own lives. There are other proceedings of a financial nature, which will be dealt with by way of conciliation conference before a Registrar.
What needs to be done at this stage is to arrive at some interim arrangements for the children, which will be for the benefit of the children during this period. I have been referred to the decision of the Full Court of the Family Court in Cowling v. Cowling (1998) FLC 92-801.
Cowling, of course, is the authority for saying that in determining interim residence application the best interests of the child are the paramount consideration. These interests will normally be best met by ensuring stability in the children's lives pending a full hearing of all relevant issues. Where at the date of the hearing the child is well settled in the child's environment that stability will usually be promoted by an order providing for a continuation of that arrangement unless there are overriding indications relevant to the child's welfare to the contrary. Such overriding indications would include convincing proof that the child's welfare would be really endangered by the child remaining in that environment.
Neither parent is suggesting that the environment in which these children exists is unsuitable, let alone is one which would place the children in danger. They make certain criticisms of each other but these are not major criticisms. The mother said that the father did not take as much interest in the children when the parents were together, as he would have the Court believe. The father said that he did take a major role with the children and it is certainly an issue that the mother has suffered from depression which she has not sought to deny and that would have imposed strains on the family unit.
When the matter was before the Court on the previous occasion some interim orders were arranged which provided that the children would spend time with the father each week from 9.00 am on the Sunday to 5.00 pm on the Monday and 2.30 pm to 6.00 pm on the Thursday and other times agreed between the parties.
The mother, in effect, seeks that these arrangements continue. The father says that he only agreed to those orders as a way to guarantee some contact and that he regarded the contact that he has as minimal and that he wished to play, and had played, a larger part in the children's lives than that. What he seeks is for contact from 8.30 am on Sunday to 5.30 pm on the Monday; 2.30 pm to 9.00 pm on Wednesday to 9.00 am on the Thursday; all day on his birthday; half the day on the children's birthday; some time on Christmas Eve; telephone contact twice a week and other contact.
He also seeks some specific issue orders relating to a variety of matters including restraining the wife from calling the children any other surname than the surname on their birth certificate. Ms Bevan made the point, and I think with justification, that there is just no evidence that these orders are necessary at this stage.
It is relevant that the children are going to pre-school. [X] goes on Wednesday, Thursday, and Friday. [Y] has started to go on a Wednesday. The mother said that [Y] has been tired by taking that first step of going to pre-school. On Wednesday afternoons after pre‑school, he is very tired and irritable. Sometimes he falls asleep in the car. Sometimes he goes to bed as early as 6.30 pm rather than between 7.30 pm and 8.30 pm, which has been the time the children would otherwise have gone to bed.
The mother has also said that the father's proposal to have the children overnight on the Wednesday night would be disruptive while the children are at pre-school. She criticises the father's proposal for having overnight contact on the Sunday night with the father, the Monday night, Tuesday night with the mother, Wednesday night with the father, Thursday night, Friday night and Saturday night with the mother and then back to going with the father on the Sunday morning.
Ms Bevan for the mother is critical of the to'ing and fro'ing that this will involve and cites a practical principal that one should be reluctant at least to disrupt children's schooling or even pre-school. She also puts that there has been a settled arrangement since the interim orders were made on 10 March.
I do not accept that latter point. It is too early and too short a time has elapsed for there to be described a well-settled environment and, indeed, if one looks at Cowling the period of time went from

17 April until 5 August when the trial Judge there was not satisfied that that was a well-settled environment and I am not of the belief that a period of less than a calendar month would be regarded as a

well-settled environment even though it is an arrangement that whilst far from perfect seems to have been working not too badly.
The father would really like to have the children with him two nights each week and subject to criticism of whether arrangements are disruptive or not it is difficult to see why that should not be. I am mindful of the fact however that the current arrangements have the children going back and forth. The father says that Thursday afternoon is not a good time for him. I am not so persuaded that traffic on [omitted] on the way out to pre-school is a factor to which I should give an enormous degree of weight. I am more persuaded by the fact that the father's business arrangements involve certain heavy commitments on Thursday afternoon and Friday nights and Saturday nights.
Certainly, the best interests of the children are paramount and if they conflict with the parents' arrangements, the children's arrangements have to be preferred. But it does not mean that where proper arrangements can be made for the children that the Court should completely ignore other commitments of the parents and I accept the fact that Friday and Saturday night are times when the father does have a commitment. There is no reason why the children should not be with the mother at that stage.
I am more mindful of a regime being established where the children spend a period of time with one parent each week and a period of time with the other to reduce the number of times that they have to go back and forth. I am mindful of the fact that the period of time when the children attend pre-school, and for [X] it is Wednesday through to Friday would more preferably see her remain in the one home. I am also mindful of the fact that [Y] has only started pre-school this year. He is going on a Wednesday. He is particularly tired on a Wednesday night until he gets used to pre-school. This would not be an advantageous time of the week to change his routine.
There is no criticisms of either parent's parenting and, in fact, there is no suggestion that the children do not have a good time with their father and do not wish to see him. In fact, he put that the children would like to spend more time with their father.
The father says that the 2.30 pm to 6.00 pm arrangement on the Thursday is not a good time and I have some difficulty in seeing what particular benefit there is for the children at that time, especially if the father's intentions are distracted elsewhere, and it is a relatively short period of time.
I am of the view that the children, as I said, should spend one period of time, but for a longer period of time, with their father each week and it would seem to me that starting on Sunday morning is a good time. I accept the fact that 8.30 am on a Sunday morning is a little bit early. It would seem to me that there is no reason why there should not be two nights with the father but they should be consecutive nights and it would seem to me that the Sunday night and the Monday night would be appropriate nights and the children could be returned to their mother during the day on the Tuesday.
Thus when they go off to pre-school on the Wednesday they have had the night before at their mother's residence. They both go of to pre‑school on the Wednesday, [Y] for the one day and [X] for the three and that there is a continuity of residence in the one house throughout the pre-school period of time. The father is then free to keep his business running in the later part of the week and on the early part of the weekend.
I am of the view that this arrangement would lead to less travelling, less to'ing and fro'ing, a greater degree of stability and a reasonable time for the children to be in the care of each parent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 9 May 2003