Cousins and Cousins

[2013] FamCA 808

FAMILY COURT OF AUSTRALIA

COUSINS & COUSINS [2013] FamCA 808

FAMILY LAW – CHILDREN – Interim Orders – with whom a child should live – consideration of family report – best interests – orders made for the children to live with each parent on a week about basis.

Family Law Act 1975 (Cth) s 60CC; 65DAA

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Cousins

RESPONDENT: Mr Cousins

FILE NUMBER: ADC 1839 of 2012

DATE DELIVERED: 9 October 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGinn

SOLICITOR FOR THE APPLICANT: Cardone & Associates

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Clelands

Orders

1. The matter is adjourned to Thursday 5 December 2013 at 9.15 am before the Honourable Justice Dawe for further consideration of the interim orders in relation to the children.

2. Paragraph 8 of the father’s Response filed on 1 October 2013 is dismissed.

3. By way of interim orders the parties have equal shared parental responsibility for each of the children B born … 1996, C born … 1999 and D born … 2001.

4. The children live with each parent on a week about basis with handover to take place at the conclusion of school on Fridays and if Friday is a non-school day handover to take place at 3.30 pm commencing with the father on Friday 11 October 2013 at 3.30 pm with handover to the mother on Friday 18 October 2013 and each alternate week thereafter.

BY CONSENT IT IS FURTHER ORDERED THAT

1. On the children’s birthdays the children spend time with their mother as follows:

   5.1for D’s birthday from conclusion of school until 7.00 pm with the mother to return the children to the father’s residence;

   5.2for B’s birthday from 9.00 am to 2.00 pm.

2. All Friday handovers that do not occur at school occur at McDonalds Suburb E in the State of South Australia at 3.30 pm.

3. The parties do all things necessary to cause themselves and the children to attend upon Dr F in November 2013 for the purposes of an updated assessment the cost of such assessment to be borne by the husband in the first instance with the wife to reimburse one half of the cost of such assessment at the time of property settlement.

4. On the mother’s birthday  the children spend time with the mother:

   8.1 if a school day from after school to 7.00 pm with the mother to return the children to the father’s residence;

   8.2 if a non-school day from 9.00 am to 2.00 pm.

5. Subject to paragraphs 10 and 11 hereof the parties do all things necessary to arrange that the children obtain passports and that these passports shall be held by the mother thereafter the mother shall provide the children’s passports to the father within seven [7] days of request for the purpose of a holiday and the father shall return the passports to the mother within seven [7] days of the date of return from the holiday.

6. Each party is restrained and an injunction is hereby granted restraining each parent from removing the children from the Commonwealth of Australia without prior written consent of the other PROVIDED THAT such written consent shall not be unreasonably withheld.

7. In the event of either party wishing to holiday outside of the Commonwealth of Australia with the children then:

   11.1the travelling party shall provide to the other at least twenty-eight [28] days written notice of their intention to take the children overseas for a holiday;

   11.2the travelling party shall provide to the other party copies of flight details together with an itinerary stipulating the destination, date of departure and date of return and an address and contact number which the children can be contacted upon no later than fourteen [14] days prior to departure;

   11.3if the travelling party wishes to take the children overseas for longer than one week then the party shall first obtain the written consent of the other on the condition that the children shall have make-up time with the non-travelling party at times to be agreed;

   11.4the notice time shall be waived in case of an emergency such as serious illness or death of a family member.

8. The orders will, therefore, be that by way of interim orders the parties have equal shared parental responsibility for each of the children and that the children live with each party on a week-about basis with handovers taking place at the conclusion of school on Friday or 5 pm if the Friday is not a school day.  The orders should actually provide for a day for that to commence. 

9. So, they spend time with their father from 5 pm on 11 October 2013 with handover to the mother, therefore, being on 18 October 2013 and each alternate week thereafter. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cousins & Cousins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1839 of 2012

Ms Cousins

Applicant

And

Mr Cousins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter in which I am being asked to make interim orders in relation to the children of the parties.  The orders are sought by way of interim orders pursuant to the Application in a Case filed by the wife on 17 September 2013 and the Response to that Application in a Case filed by the father on 1 October 2013. 

2. Proceedings were first commenced in what was then the Federal Magistrates Court in May 2012.  No orders, by way of interim orders, have however been made since then with the parties making arrangements up until now without Court orders.  It cannot be said that those arrangements have worked satisfactorily from the children’s point of view. 

3. The three children of the parties are B, who was born in 1996 and is therefore nearly aged 17, C who was born in 1999 and is therefore 14, nearly 15 and D who was born in 2001, who is therefore aged 11, nearly 12. 

4. The parties separated in circumstances which brought about the sudden break down of the relationship between each parent and the children.  The material before the Court already sets out the involvement which unfortunately the children have had placed upon them as a result of the emotional, financial and legal difficulties experienced between their parents. 

5. The Court has the benefit of a report prepared by Dr F.  However, that report (annexed to the affidavit of the solicitor for the father, Mr Farmer) was filed on 19 September 2012, being Dr F’s report of 14 September 2012.  That report contains the details of the interviews of the parties, relevant persons and the children and as a result made certain recommendations.  It is clear from the report itself that the children express concerns about the various matters which had arisen upon the parents’ separation.  It refers in the summary and opinion of a period of extended conflict and tension. 

6. The parents in this matter separated finally in May 2011.  This was precipitated by a trusted third party confronting them with the reality of the father’s extended affair with family friend, Ms G.  The father moved out and took up residence with Ms G and her two children, H and J.  Dr F’s report refers to the anger and emotional difficulties faced by the mother and the interaction and difficulties which were experienced.  The report writer refers to several difficulties, but also refers to what were then signs of the capacity to effectively share responsibility in the future.  As a final recommendation the report in September 2012, referred to the children spending equal time with the parties on a week about shared care arrangement with a similar arrangement during school holidays.

7. Paragraph 2 of that recommendation was that the father and partner, Ms G, consider making arrangements to ensure that there is a minimum non-overlap period of two nights between the respective care regimes of the children.  There were discussions about possible future schooling arrangements and the suggestion that the parents consider the benefit of consulting a suitable parenting expert. 

8. The fifth recommendation was that the parties move to financial settlement as soon as possible for the sake of the children.  It appears from the Court file that the financial settlement has not taken place and the financial matters and the children’s matters, still remain to be listed for determination by the Court.

9. The orders which the parties are seeking are set out in their recent documents filed.  The mother is now seeking orders that the parties have equal shared parental responsibility for the children, that they live with her and spend alternate weekends from after school on Friday to the commencement of school on Monday or Tuesday, if it is a public holiday, and on the Tuesday of the intervening week from after school until 8.00 pm during school holidays.  There are then specific suggestions for school holiday arrangements for each of the school holidays and significant special days, such as Birthdays and Christmas Days.  The mother also seeks an order that the husband give the wife the first option of caring for the children should he be required to be away for any longer than five hours or overnight and/or be unable to personally supervise the children.  It then refers to permission to go interstate for holidays.

10. In the Response to the Application in a Case, the father also seeks equal shared parental responsibility for the children and he seeks, “that the children live with each party on a week about basis with handovers taking place at the conclusion of school on Friday or 5 pm if a non-school day”.  He then also seeks specific orders in relation to Christmas Day, Easter and other special occasions.  I understand from the parties’ counsel that arrangements have now been agreed as to the place of handover if handover occurs other than on a school day. 

11. There have also been arrangements reached in relation to the passport applications, which was the subject of the father’s application, paragraphs 5 and 6. 

12. Paragraph 7 seeks that the wife allows the children to telephone or otherwise communicate with the husband when they are in her care. 

13. Paragraph 8 seeks the spouse maintenance variation matter which is not now pursued and can be dismissed. 

14. Having heard the submissions of counsel for the parties, it is necessary for me now not to make an order which might be in the interests or as supported by either of the parties but to consider, as is required by the Family Law Act 1975 (Cth) (“the Act”) that the best interests of the children are the paramount consideration. The provisions of the Act also require me to consider the equal shared parenting arrangement and if that is considered appropriate, I am required to give the consideration to equal or substantial and significant time, pursuant to the provisions of section 65DAA and others.

15. In this case, both parties are asking the Court to make an order for equal shared parental responsibility and it is therefore necessary for me to determine whether it would be in the children’s best interests, or why it would not be in the children’s best interests, for there to be a shared care arrangement, relying upon the decision of the authority of Goode & Goode (2006) FLC 93-286.

16. In this matter the difficulty appears to be that an arrangement that the parties reached after receiving the report of Dr F has not worked.  It is clear from both affidavits that changes have been brought about at times without the mother’s consent and at other times it would appear that the children have dictated what is going to occur. 

17. I expressed my concern to counsel about the part of the father’s affidavit, paragraph 31, which seemed, on the face of it, to suggest that the decisions were being left up to the children as to what the arrangements might be.  It is clear, however, that there has not been an order in place and that the parties have had difficulty carrying out what was the previous arrangement.

18. It is not possible for the Court to make findings in relation to all of the facts.  In particular, the disputed facts as they appear from the affidavit material and that will have to await a determination by way of final hearing, after all the evidence has been tested if the parties cannot exercise their responsibilities as parents and come to a sensible arrangement by way of a consent order that works in the best interests of their children. 

19. When determining what is in the best interests of the children I have to give consideration to all of the matters set out in section 60CC, which include the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the children from harm.  In this case, both parties appear to accept that there is indeed a significant benefit for each of the children to have a meaningful relationship with both parents and that the children should be protected and will be protected in each parent’s care from being subjected to any harm.

20. The other matters which then have to be determined are those set out in section 60CC(2) and section 60CC(3) and include the views expressed by the children.  For children of the age of these children and in particular, B and C, their views would be significant.  It would appear also that D would also wish to express her views.  I am told that both parties are now asking the Court to make arrangements for Dr F to update his report so that the Court can have more reliable information as to the factors which impact upon the best interests of the children and in particular, their views. 

21. I am concerned however, that the children should not be given too much responsibility in determining the future arrangements.  There are concerns expressed in the affidavits that the children are being influenced by one or both of the parents to express views for different reasons.

22. In the report of Dr F they were, at that stage, content and expressing views for a shared care arrangement, including living with each parent for week about.  It would appear from Dr F’s report and even from the affidavits of the parties, that it is accepted that the children have a good relationship with each of the parents. 

23. There is still some issue concerning the nature of the children’s relationship with the husband’s partner, Ms G and her children.  There is a dispute as to the impact of that relationship on the children at the present time.  Those are matters which hopefully Dr F would be able to assist the Court with in the upcoming report.

24. Paragraph (c), the extent to which the child’s parents have taken the opportunity to participate in making decisions, spending time with the child and communicating with the child is not an issue in these proceedings.  Both parents have taken as much opportunity as would be possible considering the ongoing dispute between each of the parents. 

25. Nor is there any issue in relation to the obligations to maintain the child. 

26. Subsection (d) deals with the likely effect of any changes in the circumstances that would have upon the children.  These children have, in the past, for some considerable period now, experienced the difficulties their parents have had in the relationship between the parents, but it would appear from some of the affidavit material that the children have attempted to overcome those difficulties.  It is not clear from the evidence before me whether any change in the past arrangements which were, on the face of it, meant to be week-about but which have not worked as a week-about arrangement, would be of benefit for the children.  Nor is it really possible to say that reverting to alternate weekends and half school holidays, what effect that would have on each child’s circumstances.

27. Paragraph (e) the practical difficulty and expense is not a significant factor. 

28. Paragraph (f) and (i), the capacity of the parents and the attitude to the responsibilities of parenthood.  Both parents have a capacity to make suitable provision for the children’s practical day-to-day needs.  The question remains, however, whether their attitude is such and their capacity is such to deal with the psychological and emotional needs of the children as it appears from Dr F’s report and the affidavits of the parties, that these children have unfortunately been involved in some emotional and psychological distress as a result of the breakdown of their parents’ relationship and the behaviour of the parents since that breakdown.

29. It is not possible to make any conclusion as to how that should be overcome, until some of the contested evidence is determined. 

30. Paragraph (g) is the maturity, sex, lifestyle and background of the children and the characteristics of the child that the Court thinks are relevant.  I have already indicated that their wishes would be significant at their ages, however, I am concerned that the children are not, simply because of their teen years, given responsibility to overcome the difficulties which their parents have created.

31. The other factors set out in section 60CC(3) are not particularly relevant to these proceedings. 

32. I am concerned that the situation being created for the children by the ongoing dispute between their parents is not satisfactory.

33. Having considered all of the factors at this stage, and on an interim basis, it is important that the children have an opportunity to spend significant time with each of their parents.  I propose to make orders which provide for the children to spend during the period up until the date of trial, a week-about arrangement with each of the parents. 

34. The question of whether the children remain notionally in the care of the father if he is not present has been raised.  The difficulty in that regard is that simply having a five hour gap in arrangements is likely to be somewhat disruptive in relation to the care of the children.  However, if the father were to be absent from the home for more than two or three nights, those arrangements should be made known to the wife and she should have the option to take care of the children during that period. 

35. The father has indicated that it has not happened in the past, other than for a period of only one overnight.  If the parties are unable to come to any sensible agreement about rearranging the care if either party is unable to care for them for, say, more than two nights, I will deal with that matter further on the adjourned date.  I do not propose to make any order in that regard at this time, but it is something which should be capable of being agreed. 

36. The issues in relation to birthdays and special occasions that arise before the adjourn date have been dealt with.  I strongly recommend that the parties, with the assistance of their legal representatives, come to some sensible arrangements for the other special occasions referred to in the response and application in the case. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 9 October 2013.

Associate: 

Date:  21 October 2013