CORTESE & CORTESE

[2017] FamCA 168

FAMILY COURT OF AUSTRALIA

CORTESE & CORTESE [2017] FamCA 168

FAMILY LAW – CHILDREN – INTERIM ORDERS – Application by the mother to vary final parenting orders due to a change in circumstances – Where it is in the best interests of the children to vary the parenting orders – Where interim orders are made for the children to be enrolled at a school close to their residence and for the father to spend time with the children each alternate weekend.

Family Law Rules 2004 (Cth) r 15.41

APPLICANT: Ms Cortese

RESPONDENT: Mr Cortese

FILE NUMBER: SYC 5068 of 2016

DATE DELIVERED: 22 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 22 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cruzman

SOLICITOR FOR THE APPLICANT: McBride Harle & Martin

SOLICITOR FOR THE RESPONDENT: Cara Marasco & Co

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That the children B born … 2007 and C born … 2010 (“the children”) attend D School, Suburb E.

2. That the children spend time with the father, during school terms each alternate weekend from Friday afternoon at 6.30 pm until Sunday afternoon at 6.30pm.

3. That the mother deliver the children to the father on Friday afternoon at 6.30pm and that the father return the children to the mother on Sunday afternoon at 6.30pm.

4. That this matter be listed before a Registrar for directions in relation to the substantive proceedings.

5. That pursuant to Sections 65DA(2) and 62B 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 those particulars are included in these 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 Cortese & Cortese 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: SYC 5068  of 2016

Ms Cortese

Applicant

And

Mr Cortese

Respondent

REASONS FOR JUDGMENT

1. Ms Cortese (“the mother”) and Mr Cortese (“the father”) are the parents of B born in 2007 and C born in 2010 (“the children”).

2. On 6 August 2016, they entered into consent orders which provided, relevantly, for the father to retain the family home in the north of Sydney and for the mother to receive a sum of money.

3. The orders also provided for the parents to have equal shared parental responsibility for the children, for the children to live primarily with the mother, and for them to spend time with the father from 6.30 am on Thursday until 5.00 pm on Sunday in one week and overnight on Thursday in the alternate week.

4. The orders also made provision for the mother to deliver the children to the father at the commencement of his time and for him to return them.

5. At the time the orders were made, the father was living in the family home, the mother and the children were living in rented accommodation, also in northern Sydney. The children were attending a private school in northern Sydney. The mother, who is a public servant, was working near a private school in the south west of Sydney.

6. The mother deposed that the children are familiar with this school.

7. The mother deposed that, on 6 October 2016, she had a conversation with the father where she told him that her lease was coming to an end and that she could not afford to continue to pay rent. She told him that she proposed to buy near the school and enrol the girls in the school. The father opposed that proposal.

8. On 27 October 2016, the mother entered into a contract to purchase a home near the school.

9. The mother’s lease expired in November 2016.

10. She and the children moved into their new home in December 2016.   

11. The mother deposed that her mortgage payments are $230 per week less than the rent she had been paying.

12. The mother filed an application on 15 November 2016, seeking orders, inter alia, that the children attend the school near where they live and altering the time they spend with the father so that they live with him on Thursday over night and, on the alternate weekend, from after school on Friday until the beginning of school on Monday. The substantial alteration she proposes to the present orders is that the children’s weekend time with their father would start after school on Friday rather than Thursday morning before school and end on Monday morning rather than Sunday evening. The mother’s proposal does not constitute a diminution of the children’s time with the father.

13. The mother proposes that the father collect the children from school and return them to school. This would result in more travelling for the father but, as will be seen, much less travelling for the children.

14. The children have continued to attend school in northern Sydney while living in the south west.

15. The mother deposed that she and the children typically leave home at 5.00 am on some days and at 5.40 am on others. The children eat their breakfast in the car. The drive to school can take up to one and a quarter hours. The mother then drives back to her work. In the afternoon, the children are collected from school either by the father (on alternate Thursdays and alternate Fridays) or by the maternal grandmother. The maternal grandmother drives the children home on Mondays, Tuesdays and Wednesdays. They arrive home at about 5.00 pm. On the Friday and Sunday when the children are returned to the mother, she collects them from the father’s home.

16. The mother deposed that the children are not sleeping well, they cry when she wakes them in the morning and don’t want to go to school.

17. The father filed a response to the mother’s application on 19 December 2016. He proposed that the mother be restrained from relocating to south west Sydney, that the children remain enrolled at their school in northern Sydney and that the mother be restrained from enrolling them at any other school. In his affidavit, the father submitted that the mother should rent out her house and rent accommodation in northern Sydney. He does not suggest that he will compensate her for the increased costs involved in that proposal. In the alternate, he proposed that the children live with him from Monday to Friday each week so they can attend their present school.

18. The mother’s application came before the Court in the Judicial Duty List on 11 January 2017. The Court made orders requiring the father to sign the forms required to enrol the children in D School so that their places could be secured. Further orders were made which have led to the matter being listed to determine the issue of whether the mother can file a fresh application so soon after the final consent orders were made.

THE HEARING

1. It is clear from the evidence of both of the parents that the present situation is intolerable for the children. The proposition is explicit in the mother’s evidence and implicit in the father’s proposal that the children live with him from Monday to Friday so that they can continue to attend their present school.

2. When the matter came before me on 22 March 2017, the father conceded that the orders as they presently operate, are not in the children’s best interests and that it was necessary to change the arrangements for the children.

3. Both parties agreed that I should hear and determine  their respective interim applications as follows:

4. The Mother’s application was that, pending further order, the children be enrolled at the school in south west Sydney and that they should spend time with the father, during school terms on alternate Thursdays from after school on Thursday until the beginning of school Monday. In submissions, the mother, through Counsel, said that she would deliver the children to the father’s home at 6pm on Thursday and he could return them to school on Friday. In the second week, the mother proposed that the children should spend time with the father from after school on Friday until school started on Monday, and the father should be responsible for the travelling.

5. The father’s application was that the children should live with him from 8.30am on Monday until the end of school on Friday in each week, the mother collecting them from school on Friday and returning them to school on Monday.

6. In the event that orders were to be made which would enable the children to be enrolled in D school, then the father’s position was that there should be no mid-week time with him and that the children should spend time with him on alternate weekends from Friday evening until 5pm on Sunday and that the mother should deliver the children to him on Friday and collect them on Sunday.

7. The solicitor for the father took objection to the mother’s reliance on an affidavit by Dr F who is B’s treating psychologist. He was invited to indicate whether, and in what way, Dr F’s affidavit offended the Rules about evidence from treating doctors but declined to do so. The mother was allowed to rely on Dr F’s affidavit. I indicated that I would provide reasons for that ruling and these are the reasons.

8. Affidavits by treating doctors are governed by Rule 15.41 which is set out below:  

   RULE 15.41 APPLICATION OF PART 15.5

   15.41(1)  This Part (other than rule 15.55) does not apply to any of the following:

   (a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

   (i) the results of an examination, investigation or observation made;

   (ii) a description of any treatment carried out or recommended;

   (iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;

   (b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:

   (i) about that expert's involvement with a party, child or subject matter of a case; and

   (ii) describing the reasons for the expert's involvement and the results of that involvement;

   (c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert's association, involvement or contact with that party, child or subject matter;

   (d) evidence from a family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).

9. Dr F’s report dated 9 March 2017 does not offend the Rules.

10. Dr F deposed that B has clinically significant symptoms of anxiety and depression. B has had 16 sessions with Dr F. On one occasion, both parents brought B to Dr F but the father did not participate in the session. On all but one occasion, the mother has brought B to Dr F and been involved in the treatment, which involves cognitive behavioural therapy. B has spoken positively to Dr F about attending the school in south west Sydney, because it is close to home. Dr F attached to her report entries from B’s diary where B writes that she does not like the travelling. She is annoyed when she is woken early and is scared of the dark. B wrote “Our dad lied to us when I asked him why he is stoping (sic) us going to [the school] and he said no im not.”

11. The father’s proposal that the children live with him during the school week is found at paragraph 15 and following of his affidavit sworn 25 January 2017. He deposed:

    I am prepared for the children to live with me each week Monday to Friday so they can continue attending their current school where they have established friendships with their peers and teachers. I am prepared for the Mother to have six (6) nights per fortnight on Friday, Saturday and Sunday if she is prepared to collect the children from school and return them to school. This would fit in with her part-time work commitments.

    I am of the view as the children’s parent that they are settled in their present school and it would not be in their best interests to subject them to a further upheaval in their life as they are still getting used to their parents’ separation.

    I am of the view that the best interests of the children will not be served if they have to start all over again and establish new relationships with their teachers and other children at the Mother’s proposed school. I can only see this contributing to and/or causing anxiety to them.

WHAT ORDERS SHOULD BE MADE?

1. There is no dispute that the children will benefit from having a meaningful relationship with each of their parents.

2. There is no suggestion that the children need to be protected from harm.

3. There is no evidence that C, aged six years has expressed any view. B’s views are found in her diary entries annexed to the affidavit of Dr F and in her conversations with her mother about her wish to start at the new school.

4. The children’s views in relation to their residence have not been canvassed.

5. Having regard to their ages and their undoubted unhappiness with the current level of travel, no great weight could be placed on B’s views. However, the father does not suggest that either of the children have expressed a desire to live with him or to continue at their present school.

6. The mother has been the primary carer for these children. So much is conceded by the father. No doubt they have loving and appropriate relationships with the extended families of each parent. Their maternal grandmother has a substantial involvement at present in collecting them after school and taking them home to the mother’s house.

7. The father is critical of the mother for failing to involve him in the decision about the children’s schooling. I do not accept that criticism. She attempted to consult with him. He did not agree with her proposals. She filed an application.

8. It is true, as the father submits, that the family finds itself in this position because the mother has purchased a property in south west Sydney. However, it must have been in the father’s contemplation, when he purchased the mother’s interest in the former matrimonial home, that she would use the money to buy elsewhere and that she might not choose to stay in northern Sydney. The mother has been working in her present position in south west Sydney for 15 years. The mother deposed that, in the course of the negotiations that led to the Orders made in August 2016, she told the father in a meeting with both of their lawyers present, that she would not be able to afford to live in northern Sydney.  

9. The aspect of the children’s best interests that attracts the greatest weight in this determination is the effect on the children of a change in circumstances which would lead to their being substantially separated from their mother. They are aged ten and six. She has been their primary carer since birth. Nothing in the evidence in the father’s affidavits suggests that they would not be distressed and harmed by a separation from her.

10. B already has significant symptoms of anxiety and depression. It is reasonable to assume that separation from her primary attachment, her mother, would exacerbate those symptoms.

11. On either proposal, the children would not have a significant separation from extended family members.

12. I accept that the children may take some time to adjust to a new school and new friends but there is no evidence that they will not do so. They will have the advantage of their mother being near to the school they attend.

13. The father makes much of the practical difficulty and expense involved in the children’s travel to and from school and the unreasonable burden of travel which would be imposed on him if orders were made in accordance with the mother’s application. The distance between the father’s residence and the children’s residence is about 40 kilometres. I accept that, at certain times, traffic conditions might make that trip arduous. The mother deposed that it can take up to 75 minutes. In submissions, the solicitor for the father suggested two hours. However, a distance of 40 kilometres is not excessive in a city the size of Sydney and a requirement to travel for 75 minutes to collect the children could not be decisive in determining where the children live. The mother would have to travel the same distance and for the same time per journey on the father’s application.

14. There is little evidence of the capacity of the parents to provide for the children’s needs. The mother has been their primary carer. The father makes no criticism of her parenting.

15. The attitude to the children and the responsibilities of parenting of each of the parents is, to some extent, exposed by their respective applications. The mother is prepared to drive the children to the northern Sydney on alternate Thursdays so they can spend time with their father. She proposes that they stay with him on alternate Sunday nights and that he drive them to school on the following Monday.

16. The father does not propose to spend time with the children on the alternate Thursdays. On his behalf it was submitted that his primary concern was to save the children from the burden of travel. A similar concern was expressed in relation to his delivering the children to school on Monday. The children will still have to travel from the northern Sydney to their home at the end of the weekend. The significance of the father’s position is that he will not have to drive them to school on Monday before proceeding to work. Whether the father’s position is motivated by his concern for the children or by his unwillingness to face the traffic cannot be determined here.

17. A further concern about the father’s ability to give priority to the children’s needs over his own wishes arises out of the fact that the father has been prepared to insist that the children have the burden of travel from their home to the northern Sydney since the beginning of the school term. His solution to the children’s situation was that the mother rent out her home and take rented premises in northern Sydney so that the mother would travel each day to work and return.

18. Having regard to all of the factors which have been discussed above, it is not appropriate that the children be removed from the care of their mother. If they are to live with her, then their school must be changed.

19. Both parents see the need to change the arrangements for the children to spend time with the father. The mother is proposing that the children have more time with the father than he proposes. I accept that, on the father’s proposal, the children will not spend alternate Thursday nights and Sunday nights with him but that is his decision.

20. I do not accept the father’s submission that the mother should do all of the driving for changeover because she has chosen to move. The return of the children on Sunday evenings is the least arduous journey and the father should be responsible to return the children to their home on Sunday. If he leaves the northern Sydney by 5pm, he should have no difficulty, in Sunday traffic, in having them home by 6.30pm. He may be able to leave a little later.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 March 2017.

Associate: 

Date:  22/3/2017