Croft and Croft

[2014] FamCA 493

FAMILY COURT OF AUSTRALIA

CROFT & CROFT [2014] FamCA 493

FAMILY LAW – CHILDREN – Interim parenting – What time the child should spend with each parent pending further hearing – Best interests of the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Croft

RESPONDENT: Mr Croft

FILE NUMBER: PAC 654 of 2014

DATE DELIVERED: 30 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Rowlandson & Co

SOLICITOR FOR THE RESPONDENT: A R Walmsley & Co

Orders

1. Orders are made in accordance with paragraphs 1 to 20 of the orders sought by the mother on an interim basis, with the exception of paragraph 3.3 and 13, as follows:

   Parenting

   1. Pursuant to Section 64B(2)(c) of the Family Law Act 1975 (Cth) (“the Act”), both the Applicant and the Respondent (“the parties”) have equal shared parental responsibility for [N] born … 2007 (“the child”).

   2.   That the child live with the Applicant.

   3.   That the child spend time with the Respondent –

   3.1during school term from the conclusion of school Friday until the commencement of school the following Monday and each alternate week thereafter;

   3.2during school term and in the alternate week from the conclusion of school Tuesday until the commencement of school Wednesday;

   3.3Deleted.

   3.4for one half of each of the Term 1, 2 and 3 NSW school holiday periods as agreed between the parties and failing agreement, for the first half of the NSW school holiday periods in years ending in even numbers and the second half of the NSW school holiday periods in years ending in odd numbers;

   3.5for two one (1) week periods in the Christmas school holiday period as agreed between the parties and failing agreement, for two one (1) week periods commencing 5.00 pm on 2 January and concluding at 5.00 pm on 9 January and commencing at 5.00 pm on 16 January and concluding at 5.00 pm on 23 January;

   3.6such other time as may be agreed between the parties in writing.

   4.   The child shall spend time with the Applicant from 9.00 am on 24 December until 3.00 pm on 25 December in each alternate year commencing 2015 and from 3.00 pm on 25 December until 5.00 pm on 26 December in each alternate year commencing 2014.

   5.   The child shall spend time with the Respondent from 9.00 am on 24 December until 3.00 pm on 25 December in each alternate year commencing 2014 and from 3.00 pm on 25 December until 5.00 pm on 26 December in each alternate year commencing 2015.

   6.   The child’s time with the Applicant shall be suspended:-

   6.1from 4.00 pm the day before Father’s Day until 4.00 pm on Father’s Day if Father’s Day falls on a weekend when the child would be living with the Applicant;

   6.2from 5.00 pm until 8.00 pm on the child’s birthday if the child’s birthday is on a school day;

   6.3from 12.00 noon until 6.00 pm if the child’s birthday is not on a school day;

   6.4between 10.00 am and 4.00 pm on the Respondent’s birthday (if such a day is not a school day). If the Respondent’s birthday falls on a school day then the child’s time with the Applicant shall be suspended from 5.00 pm to 8.00 pm.

   7.   The child’s time with the Respondent shall be suspended:-

   7.1from 4.00 pm the day before Mother’s Day until 4.00 pm on Mother’s Day if Mother’s Day falls on a weekend when the child would be living with the Respondent;

   7.2from 5.00 pm until 8.00 pm on the child’s birthday if the child’s birthday is on a school day;

   7.3from 12.00 noon until 6.00 pm if the child’s birthday is not on a school day;

   7.4between 10.00 am and 4.00 pm on the Applicant’s birthday (if such a day is not a school day). If the Applicant’s birthday falls on a school day then the child’s time with the Respondent shall be suspended from 5.00 pm to 8.00 pm.

   8.   Each party be allowed to contact the child by telephone at all reasonable times and with reasonable frequency when the child is not with them.

   9.   Neither party shall denigrate the other party nor permit any third person to do so in the presence or hearing of the child.

   10. Each party shall keep the other advised at all times of their residential address and residential telephone number and any emergency contact number.

   11. Each party shall ensure that the child is transported to any sporting or cultural activity and any training or tuition in which the parties have agreed in writing that the child shall participate in.

   12. For the purposes of implementing Orders 3.1 and 3.2, the Respondent or his nominee shall collect the child from his school/after school care at the commencement of such times and the Respondent or his nominee shall deliver the child to his school/before school care at the conclusion of such times.

   13. Deleted.

   14. For the purposes of implementing Orders 3.4 to 7 inclusive the Respondent or his nominee shall collect the child from the Applicant’s residence at the commencement of those times and at the conclusion of those times the Applicant or her nominee shall collect the child from the Respondent’s residence.

   15. Each party shall ensure that the other is promptly advised of any medical emergency or significant illness suffered by the child including sufficient details to enable both parties to be consulted with respect to and be fully advised regarding such illness or condition and any treatment recommended or provided and both parties shall be at liberty to visit the child if hospitalised.

   16. Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with the other party the child’s attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to carers and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.

   17. That in the event that the child is absent from school due to illness then the party in whose care the child is at that time shall notify the other party that morning that the child is so absent.

   18. Neither party shall change the child’s place of residence without giving the other party written notice not less than 21 days beforehand of the proposed change.

   19. That in the event that either party propose to travel overseas with the child for any period, then at least two (2) month’s written notice must be given to the other party, providing the destinations, mode of transport, flight numbers and times of departure and return, relevant contact telephone number(s) and addresses of where the child and/or the party will be residing for the duration of the proposed travel.

   20. That unless either party is travelling with the child outside  the Commonwealth of Australia, the child’s passport remain in the custody and control of the Applicant.

2. The matter proceed in the Less Adversarial Trial program and the first day of the Less Adversarial Trial be listed on a date to be fixed.

3. The parties do all things required of them to enrol the child in out of school hours care and equally contribute to the cost of the out of school hours care.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Croft & Croft 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 PARRAMATTA

FILE NUMBER: PAC 654 of 2014

Ms Croft

Applicant

And

Mr Croft

Respondent

REASONS FOR JUDGMENT

1. I am dealing with this matter today on the basis of it being an interim, interim application because I am satisfied that urgent circumstances do exist in the sense that the mother will move from her premises tomorrow.  The parents in this matter have one child, N (“the child”), who is seven.  The parents separated in late 2012 according to the mother or in January 2013 according to the father.  For some time, they lived together in the same home but since their actual separation, they have come to be living next door to one another and, for that reason, they were able to enter into an agreement about the child’s living arrangements which would probably not be an agreement that would be able to be arranged for people who were not living quite so close to one another.

2. The current living arrangements for the child are, in my view, extremely complicated and just working out what can happen in a particular week – I think I am correct in identifying it can involve up to seven changeovers.  In some weeks, it involves the child spending a night with his mother on three consecutive nights but being delivered at 7.30 am the following morning to his father.  Although undoubtedly this arrangement is less disruptive for the child than it would be for a child whose parents live some distance from one another but it cannot be maintained beyond tomorrow under these current arrangements with the child simply going next door as the mother is about to move.

3. The mother proposes to move to a residence about 10 minutes away from the father’s home, but the former matrimonial home where the father has been living has been sold and it is not clear when the father will move from that home.  The settlement is in about two weeks’ time but he says that he can remain up to a couple of months.  The father’s proposal is that the current arrangements continue and the mother’s proposal is that the child lives with her and spends time with the father from the conclusion of school on a Friday to the start of school on the following Monday each alternate week and on Tuesday nights on the week when the child is not with the father.  The mother also wishes to be able to move the child from his current school, where he has been for some time, to the school where she is employed.

4. Many of the matters that are in dispute between the parties are unable to be resolved today and I can also say I am not assisted at this stage by the Children and Parents Issues Assessment report which is often available to a Court at the time of an interim hearing and will become available in a few weeks time. 

5. Having regard to the best interests considerations in the Family Law Act 1975 (Cth) and applying them to the undisputed facts, in relation to the primary considerations, I am of the view that either arrangement satisfies the child having the benefit of a meaningful relationship with both of his parents, having regard to the meaning that has been given to that expression, “meaningful relationship”.

6. There is also, in my view, no particular risk of harm factors that arise in this matter of the sort that are envisaged in the primary considerations.  There seem to be some matters that each party raises, particularly in relation to a particular incident that led to the relationship break down, but they are not the sorts of risk of harm factors of involvement or exposure to family violence or matters of abuse or those kinds of matters.  So far as the other considerations are concerned, the child is too young to express his views.  In relation to the relationship with his parents, I assume that it is a good relationship with both parents as both have been closely involved in his care. 

7. One of the issues, a big issue in my view, is the likely effect of the change in circumstances upon the child.  On the mother’s proposal there certainly will be fewer changeovers, which, in my view, is likely to be something that will benefit the child in that it will tend to lead to more stability.  But on the other hand, the mother wishes to change the child’s school, which would be a big change in his life considering the time of year it falls, the number of years that he has been at the current school and, particularly because there is about to be some more change for him on the mother’s proposal in any event.  So far as the father saying that he wishes to continue the current arrangements, that still will involve a change in circumstance because the mother will be moving.  It will involve more trips back and forth in the car and also the father’s future circumstances are, to a certain extent, uncertain.

8. As far as the issues of practical difficulty are concerned, they do not seem to be particularly problematic except to say that the mother’s plan will introduce before and after school care, which will involve some additional costs but the father has indicated that that is something he will be easily able to facilitate. 

9. This is not a matter where issues about capacity of parenting really arise on the limited information that I have, nor is it one that relates to issues of the responsibilities of parents or their attitude to parenthood.  There have been some allegations in relation to the issue of family violence but they are matters yet to be determined.

10. The mother raises in support of her proposal that the parties have poor communication between them and that therefore equal time is not appropriate.  The father has annexed to his affidavit some of the texts between the parties and I have to say, looking at them, communication between the parties does appear to be reasonable, particularly in the sense that there are not the abusive texts that one often encounters, and the parties seem to be capable of speaking to one another at least by text message in a fairly reasonable fashion. 

11. But, of course, the issue that is raised about the father’s proposal in describing it as an equal time arrangement and whether or not that is in the best child’s interest is not, in my view, the critical issue.  The biggest concern, in my view, about the father’s proposal continuing is the sheer number of changes for this child – not so much the fact that it amounts to equal time, but because of the very high level of changeover in arrangements – having a meal at one place, spending a night at another place, being dropped off and delivered, being picked up and dropped off by different parents.  I think that whilst that may have been tolerable for the child when the parties were living next door, it does not seem to be a tenable arrangement or in the child’s best interests now that the parties are no longer going to live next to one another.

12. In my view, the level of change that the mother proposes does promote a much greater sense of stability for the child, particularly in light of his age.  But having said that, for the same reason, in my view, it is not appropriate or in the child’s interests for his school to be changed at this stage.  The Court will certainly be in a better position to make a determination later about whether the child is really not doing so well at school, as suggested by the mother, or really doing quite well, as suggested by the father.  But these are sorts of matters that decisions should not be made on the run and if the mother were able to change the child’s arrangements at this stage and it turned out that he was better off remaining where he was, that would introduce yet another change in his life. 

13. For these reasons, I propose making the orders as sought by the mother on an interim, interim basis, except for her proposed order 21.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 June 2014.

Legal Associate:       

Date:    10 July 2014