Cutler and Weeton

[2014] FamCA 585

FAMILY COURT OF AUSTRALIA

CUTLER & WEETON [2014] FamCA 585

FAMILY LAW – CHILDREN – Interim Parenting – Where the father made an application to vary interim parenting arrangements – Consideration of the best interests of the child –Where the children support an equal time arrangement – Where the father seeks equal shared parental responsibility – Where the father travels regularly– Where the father can spend substantial and significant time with the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA & 114(1)(f)

APPLICANT: Mr Cutler

RESPONDENT: Ms Weeton

FILE NUMBER: SYC 544 of 2014

DATE DELIVERED: 26 June 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 26 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Ms Hauptmann -

Swaab Attorneys

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Edwards –
Edwards Family Lawyers

Orders

1. That pursuant to s 114(1)(f) of the Family Law Act 1975 (Cth) Mr Cutler is to vacate the property known as and situate at B Street, C Town leaving it in good order and condition by 5pm on Sunday 29 June 2014. Thereafter Ms Weeton shall have exclusive occupation of that property pending further order of the court.

1. That, pending further order of the court, the children D and E shall live with their mother.

1. That the children shall spend time with their father during school terms from after school Friday until the commencement of school on the following Tuesday morning in each alternate week.  Such time shall commence in week two (2) of each school term. 

1. That by consent, I make the further order contained in the handwritten short minutes of order, initialled by me and dated today, set out herein:

1.That each parent notify the other parent at least 48 hours prior to departure of any intention to take the children interstate.

1. That the balance of outstanding interim matters are adjourned to the duty list at 9.30 am on 18 August 2014. 

1. That both parties’ costs in respect of these interim parenting proceedings are hereby reserved. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cutler & Weeton 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 SYDNEY

FILE NUMBER: SYC 544 of 2014

Mr Cutler

Applicant

And

Ms Weeton

Respondent

REASONS FOR JUDGMENT

1. These proceedings raise two issues: the sole occupation of the matrimonial home and the time the children spend with each parent.  Yesterday, by consent, I made a number of Interim Orders dealing inter alia with parenting.  The Orders made were comprehensive Orders dealing with all aspects of the parenting of the two children of the parties’ relationship save for the issue as to where the children should live during school term.  It’s necessary, therefore, for me to make a determination as to that issue on an interim basis.  The father proposes that the children should spend alternate weeks with each parent with changeover to occur each Thursday.

2. The mother proposes that the children live with her and spend time with the father from after school Friday until before school on Tuesday.  These are interim proceedings and, as such, I cannot and should not make findings that would be made on a final basis. 

3. The mother and the father started living together in about 1990 and were married in 1992.  They have two children.  D who was born in 2001 and is 12 years of age.  He is currently in year seven at F School.  E was born in 2004 and is consequently 10.  She is still at G School.

4. The parties agreed that they separated on 23 August 2013.  The family home is at B Street, C Town, which was purchased approximately 11 years ago.  It consequently has been the family home for the children for all or most of their lives.  Notwithstanding the separation on 23 August 2013, both parents have remained living in that property. 

5. In October 2013 the father rented an apartment in H Street, Sydney.  He has not yet moved into it.  He said in his affidavit of 3 February 2014, “I do not wish to move into the apartment until such time as there is a parenting plan in place.”  That remains his view.  His counsel said in submissions there is no issue that the father will vacate the matrimonial home within 14 days of parenting being sorted out. 

6. Each parent makes allegations that the other has engaged in abusive and denigrating behaviour in front of the children.  I cannot determine on this application which version, if any, should be accepted.  It is sufficient to say that, with both parents living in the one house, there is an unsatisfactory tension there as was observed by the children’s paternal grandfather.  It is apparent also from the affidavits of the parents themselves.

7. There is no real suggestion in the evidence that, had the father moved out of the matrimonial home, at any time, the children would have been denied appropriate time with him.  In a few moments there will be a complete set of Interim Parenting Orders in place.  Even on the father’s view there will be no further basis for him remaining in the matrimonial home.  Consequently there will be an order that the father vacate the C Town home by 5 pm on 29 June 2014 and that thereafter the mother have exclusive occupation of that property, pending further order of the court. 

8. As to parenting orders, the parents have agreed upon equal shared parental responsibility and such an order on an interim basis was made yesterday. 

9. In considering parenting issues I must have regard to the objects of that part of the Family Law Act 1975 (Cth) (“the Act”) dealing with children as set out in s 60B of the Act. Pursuant to s 60CA the paramount consideration to be taken into account is the best interests of the children. I am required to deal with the issues raised by s 60CC bearing in mind that as this is an interim application final determination of the facts that would give rise to particular considerations has yet to occur.

10. One of the two primary considerations concerns the children having a meaningful relationship with both parents.  Both the children seem to have a close and loving and hence meaningful relationship with each of their parents and there is no suggestion that that relationship will not continue under either regime proposed by the parents. 

11. The second primary consideration is the effect which children might be exposed to family violence.  There is no suggestion of physical violence in this matter.  To the extent that the alleged behaviour of each of the parents constitutes family violence, in the sense that it’s said to constitute denigrating and abusive behaviour which occurred in front of the children, that is an issue that cannot be determined on this application as each parent gives completely different evidence on that issue. 

12. The views of the children must be considered.  On 19 May 2014 a Family Consultant, having interviewed the children on 12 May 2014, prepared a Child Inclusive Conference Memorandum to the Court.  Each of the children reported a close relationship with both their parents.  Whilst D thought that an equal time arrangement would be a bit difficult at first, he thought that this should be the arrangement.  Changeover should be on Sunday as that is what his friends do.  E also supported a week about arrangement with a changeover on Sunday. 

13. The Family Consultant said of this:

    The children each present as confident and loyal to each parent.  However, how they will react when there is a physical separation and to the reality and practical issues of moving between two homes is not home.  Given the parents’ views about what is in the best interests of the children and relation to their longer term parenting arrangements it might be that the parents will experience difficulties in supporting the children to suggest if the arrangement is not what he or she was seeking.

    Thus there is a caveat placed upon the children’s views as expressed to the Family Consultant. 

14. I bear in mind that this is an interim arrangement.  By the time a final hearing commences the children will have experienced moving between the two homes and will have a chance to form views based upon that.  At that time it may then be appropriate to give the children’s views more weight. 

15. The mother has been the primary caregiver to the children whilst the husband has worked.  This is so even on the father’s version of the facts which gives a greater prominence and role to him in the care of the children than does the evidence given by the mother.  The issue of the precise degree of day-to-day involvement of the father in the children’s lives is a matter that will be determined at another time. 

16. Each of the parents has a close relationship to the children. 

17. D consulted a psychiatrist in 2012.  There was a disagreement between the parents on this issue as well as many others.  The fact of disagreement does not, however, mean that the parties have not attempted to be involved in major decision making regarding the children.  The mother said, seemingly without contradiction, that she does much of the day-to-day organising of the children’s tasks and extracurricular activities however as to major decisions both parents seem to be involved when they can. 

18. They each spend significant time with the children when they are able to do so. 

19. There is no great practical difficulty and expense involved with either set of orders.  E will be at school near C Town, both at primary school and high school, and D in the city, thus, in any event, travel will be involved.  It will be easier for E to travel to and from school from her mother’s and D to and from school from his father’s.  I have referred already to the father remaining in the family home since October 2013, notwithstanding having rented an apartment at considerable expense. 

20. I have referred to the tension in the family home which was caused by the two parents remaining separated in the one house.  Even with the best will available to parents, tension, in those circumstances, is likely to arise.  The evidence tends to suggest, on either view of the facts, that at least at times the best will was not available.  This was clearly not a desirable situation regardless of whether that tension could be attributed to the father, the mother or both.  The father elected to maintain his position in the house, asserting that he would not move until there was an appropriate parenting plan in place. 

21. Yet there was no suggestion that, had he moved, he would not have continued to maintain a relationship with the children. 

22. This is evidence that is capable of establishing that at times the father lacks the ability to put the children’s interests first rather than what he perceives to be his interests.  It is no answer to suggest, as was suggested by his counsel, that the mother could have moved out.  She didn’t have an income or the funds to do so and the father had already rented an apartment.  There was no suggestion that, had the father moved, his involvement in the children’s lives would have been seriously diminished.

23. Even so, the father had to take the tension in the house, and the effect it was having on the children, into account. 

24. The father travels for work.  He says that he can tailor this to accommodate the orders he proposes.  There was a dispute between the parties as to the amount of travel of the father and the times he was away.  Recent events are the best guide as to what is likely to occur in the near future. 

25. On 14 May 2014 he sent the mother an email saying that next week he needed to be in Melbourne for presentations to investors on Tuesday and Wednesday evenings, and was planning to fly down on Tuesday morning and back Thursday afternoon, thus being away for two nights.  On 23 May 2014 he sent an email saying that on Tuesday 27 May 2014 he would be in Melbourne for the day, leaving on a 6.00 am flight and returning on a 7.30 pm flight, thus arriving back in Sydney at 9.55 pm.  That email also indicated that he was leaving for Brisbane at 7.30 am on 29 May 2014, a Thursday, and would be returning to Sydney at 8.00 pm on the following Friday.

26. On 30 May 2014 the father advised the mother that the following week he would be in Melbourne on Monday evening for a presentation, leaving Sydney at 3.00 pm Monday and returning to Sydney at 10.00 am Tuesday.  On 6 June 2014 he advised in the following week he would be in Melbourne on the Wednesday, leaving on a 6.00 am plane and returning home about 7.45 pm and that on the Thursday evening he had a meeting and dinner from 6.00 pm till late.  On 13 June 2014 he advised that in the following week he had a business dinner after work on the Wednesday and then on Thursday afternoon he was flying to Brisbane, returning to Sydney about 7.50 pm on the Friday evening.

27. Whilst these are not extensive trips, or of any length, they are frequent.  The father did not give any evidence as to who might be looking after the children or taking them to the school in the event he would need to travel.  Even the one-day trips would seem to have him being away from home from early in the morning until late in the evening.  Other than inferring that the children would either to have to fend for themselves whilst they were in his care or that the mother would have to take up the slack, the issue was left there.  If the mother were to look after the children during those times, as would seem to be the logical step, it would involve the children changing their routine from time to time and bring the parents, of course, into greater contact, both as to changeovers and, more importantly, having to agree for the mother to take the children when necessary and on the times they would be picked up and returned.

28. Giving that there is an order for equal shared parental responsibility s 65DAA(1) requires me to consider whether or not the children spending equal time with both parents would be in their best interests. On this hearing, and for the purposes of the interim orders I’m being asked to make, I do not think that it is. The mother has been their primary carer and their present residence has been their home for all or most of their lives. They have friends in the area. I take into account that on interim hearing it is appropriate for the Court to tread cautiously in making significant changes to the status of children’s lives and where they live. The children’s views are the subject of a caveat by the Family Consultant. They have not experienced living in two houses. I acknowledge that their views must be given some weight, but they are not determinative.

29. The attitude of the father in remaining in the matrimonial home is capable of indicating that he may have some difficulty in putting the children’s needs first.  Finally, I am concerned that the father’s business will require him to be away from the children frequently, albeit for short times, but at periods when they are to be with him, which would mean that the children would either have to, for example, find their own way to and from school, bearing in mind that some travel will be involved for at least one of them, or that the mother will have to take over the care of the children when he travels or is required to attend work functions.

30. This would require a reorganisation of the parenting arrangements on an ad hoc basis, which is going to be unsettling to the children and is likely to cause conflict between the parents, requiring them to agree from time to time to vary the arrangements.  On the present evidence, only the mother and the father are available to provide care to the children.  It seems to me that state of uncertainty is not in the children’s best interests. 

31. The orders proposed by the mother provide for the children to spend substantial and significant time – as that time is defined in the Act – with the father, and thus the requirements of s 65DAA(2) are met. I consider that that is the more appropriate arrangement to be made on an interim basis for the reasons I have just given.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 26 June 2014.

Associate: 

Date:  28 July 2014