Darcy and Darcy

[2014] FCCA 2193

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARCY & DARCY [2014] FCCA 2193

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – variation of interim orders – best interests of the children – where Family Report recommends slight increase in the amount of time children spend with the mother – where children aged 15 years, 11 years and 9 years – where each parent has limited accommodation for children – where children sharing beds.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MS DARCY

First Respondent: MR DARCY

File Number: SYC 1069 of 2013

Judgment of: Judge Scarlett

Hearing date: 22 September 2014

Date of Last Submission: 22 September 2014

Delivered at: Sydney

Delivered on: 23 September 2014

REPRESENTATION

Solicitor for the Applicant: Mr Fernie (as agent)

Solicitors for the Applicant: David H. Cohen & Co

Solicitor for the Respondent: Mr Taylor

Solicitors for the Respondent: Hughes & Taylor

Counsel for the Independent Children's Lawyer: Ms Saw

Solicitors for the Independent Children's Lawyer: Mark Whelan Lawyer Pty Ltd

ORDERS

UNTIL FURTHER ORDER

BY CONSENT UNTIL FURTHER ORDER

1. Order 1 made on 6 May 2013 is discharged.

2. The children [X] born [in] 1999, [Y] born [in] 2003 and [Z] born [in] 2005 are to spend time with the mother as follows:

   (a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, the first such weekend to commence on 31 October 2014;

   (b)For half of each gazetted school holiday period at the end of Terms 1, 2 and 3 as agreed between the parties noting that the mother’s time with the children in the September 2014 school holiday period will commence on 19 September 2014 for 7 days;

   (c)For a period of not less than 2 weeks during the Christmas school holiday period as agreed between the parties;

   (d)In the event that the children are not otherwise spending time with their mother on the weekend when Mother’s Day falls, the children shall spend time with the mother on Mother’s Day from 9:00 am until 5:00 pm;

   (e)At other times as agreed between the parties.

3. Notwithstanding any Orders to the contrary, the children shall spend as a minimum 9:00 am to 5:00 pm with their father on Father’s Day in the event that they are not otherwise with the father on that day.

4. For the purposes of implementing Order (2) above, the mother shall collect the children from school and return the children to school at the commencement and conclusion of the time that she is spending with them and in the event that the school is not operating at one of those times then she will collect from or return the children to the father’s residence.

5. The children shall communicate with their mother by telephone on a liberal and frequent basis as arranged between the children and the mother.

6. Order 2 of 6 May 2013 is hereby discharged and it is requested that the Australian Federal Police give effect to this Order by removing the names of the said children from the Airport Watch List also known as the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

7. The father is at liberty to travel with the children to [P] in October 2014 provided that:

   (a)The father provides the mother with a travel itinerary and with travel documentation;

   (b)The father deposits the sum of $2,500.00 into the trust account of his solicitors, Hughes & Taylor Solicitors, and such funds to be held in that trust account until the children have safely returned to Australia or to be provided to the mother in the event that the children fail to return to Australia in accordance with the travel itinerary referred to in Order 7(a) above;

   (c)The children shall communicate with the mother at reasonable times and at reasonable frequency by telephone in accordance with the Optus Travel pack obtained by the father;

   (d)When the children return from [P] their passports will be held by Hughes & Taylor Solicitors in safe custody pending further Order of this Honourable Court or the written consent of both the mother and the father.

8. That both the mother and the father enrol in and complete a Parenting After Separation program as offered by Unifam (9373 5500) or Relationships Australia (1300 364 277) and provide evidence of enrolment and completion to the Independent Children’s Lawyer.

9. That each parent is restrained from speaking badly about the other parent to or in the presence of the children and shall use their best endeavours to prevent any other person from so doing.

10. That the mother and the father communicate with each other in relation to any issue in respect of the children by email or SMS text messages only and shall respond to the other’s email or message within a period of not less than 72 hours and further, the mother and father are each restrained from denigrating or criticising the other in the said email.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. In addition to the times set out in Order (2) above, the children [X], [Y] and [Z] are to spend time with the mother as follows:

   (a)Each Thursday from immediately after school until 8:00 pm commencing on 6 November 2014;

   (b)Each alternate Monday from immediately after school until 8:00 pm; and

   (c)As a minimum from 9:00 am to 5:00 pm on Christmas Day 25 December in 2014 and all even numbered years thereafter and as a minimum from 9:00 am on Christmas Day 25 December to 10:00 am on Boxing Day 26 December in 2015 and all odd numbered years thereafter.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1069 of 2013

MS DARCY

Applicant

And

MR DARCY

First Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application to vary interim parenting orders that were made by consent on 6 May 2013. The Orders provided that:

   a)The parties’ three children would spend time with their mother, the Applicant in these proceedings, each alternate Friday from 5:00 pm until 12:00 noon on Sunday or after the finish of the child [X]’s [omitted] game, whichever is the later;

   b)The parties were restrained from removing the children from Australia and their names were to be placed by the Australian Federal Police on the Airport Watch List, now known as the Family Law Watch List;

   c)The mother agreed, without admissions, not to consume illicit substances whilst the children were in her care; and

   d)The mother agreed, again without admissions, not to allow anyone who appeared to be under the influence of an illicit substance to be in the children’s presence whilst they were in her care.

2. The parties have three children, two sons and a daughter, all of whom live with their father.

3. The parties’ eldest child, [X], was born on [omitted] 1999. He is now aged 15 years.

4. The parties’ younger son, and second child, [Y], was born on [omitted] 2003. He is now 11 years of age.

5. The parties also have a daughter named [Z]. She was born on [omitted] 2005 and is now 9 years old.

6. On 24 June 2013 an Order was made under the provisions of s.68L of the Family Law Act 1975 (Cth) that the interests of the children should be separately represented. The Independent Children’s lawyer is Mr Mark Whelan.

7. On 19 November 2013 an Order was made in accordance with s.62G of the Family Law Act 1975 for the preparation of a Family Report. The Family Report, prepared by family consultant Ms A, was completed on 5 May 2014 and released to the parties.

The Current Issues

1. The parties and the Independent Children’s Lawyer attended an FDR Settlement Conference at Legal Aid NSW on 11 September 2014. Whilst they agreed to a number of interim arrangements, there are still two issues which need to be resolved. The father’s solicitor, Mr Taylor, describes those issues in his outline of submissions as follows:

   (a)    Whether it is in the children’s best interests for the current interim arrangements to be varied; and

   (b)    Which of the competing proposals currently reflects the best interests of the children.

2. The Independent Children’s Lawyer prepared a draft Minute of Orders arising from the discussions at the Settlement Conference. The father’s solicitor has prepared a similar draft Minute.

3. Whilst there is a substantial degree of agreement between the parties to the extent that orders should be made increasing the amount of time the children will spend with their mother, as was recommended in the Family Report, there are three proposed orders about which the parties cannot agree.

4. Those three proposed orders relate to the children spending time with their mother:

   (b)    Every alternate Thursday from the conclusion of school until 8:00 pm commencing 6 November 2014;

   (c)     Each other alternate week on Monday or Wednesday (such day to be chosen by the mother) from the conclusion of school until 5:00 pm;

   (g)    As a minimum from 9:00 am on 25 December in even numbered years and as a minimum from 9:00 on 25 December to 10:00 am on 26 December in odd numbered years.

Submissions

1. Mr Fernie, who appeared for the mother, submitted that instead of proposed order (b), the children should spend time with her overnight, from after school on Thursday until Friday morning. She would seek that this should occur every Thursday, not just on alternate Thursdays.

2. As for proposed order (c), it was submitted that the children should spend time with their mother on either Monday or Wednesday each alternate week, not just from the commencement of school until 5:00 pm, but until 8:00 pm.

3. Finally, in respect of the proposed order (g), the mother submits that the arrangements for even numbered years should be exchanged with the arrangements for odd numbered years, as she has not spent Christmas with the children for the past two years.

4. The mother, in her proposal for overnight time from Thursday afternoon until Friday morning, acknowledges her current difficulty with accommodation for the children, which involves their sharing beds when they are with her, but seeks additional nights with the children for the purpose of obtaining a further Centrelink benefit.

   
   

   Mr Fernie explained that if the children were with the mother for 35% of the time, amounting to 128 nights per year, she would be entitled to a further benefit, by way of Family Assistance, amounting to $525.00 per fortnight. This additional income would enable her not to have to rely on receiving income from a lodger who currently occupies the second bedroom. As a result, she would be able to provide a furnished bedroom for the children.[1]  

   [1] Affidavit of Ms Darcy 22.9.2014 at paragraphs [10] and [12]

5. The mother also makes the point that on Thursday evenings the child [Z] attends [omitted] class for two hours. The mother is not permitted to attend the [omitted] class whilst the child participates and, as a result, has to wait outside with the two other children. This [omitted] class cuts into her time with the children.

6. Mr Taylor, for the father, submitted that his client opposed those proposed orders. He said that the children were spending more time with the mother than the original Orders provide. However, the father had a serious concern about the accommodation available to the children when staying with their mother and noted the paucity of evidence by the mother as to her proposals.

7. In respect of proposed order (b), the father submits that alternate Thursdays would be more in the children’s best interests. As to proposed order (c), the Court would need to consider the children’s activities.

8. The Christmas arrangements proposed by the mother were also opposed. Mr Taylor submitted that Christmas was not a significant time for the mother, as she was brought up in the [omitted] faith, and so did not celebrate Christmas.[2] In addition, each year the father takes the children to [S] for a holiday, which involves their leaving at 3:00 am on Boxing Day. The accommodation has to be booked a year ahead and the father has already made the booking.

   [2] Ibid at [14]

9. Counsel for the Independent Children’s Lawyer, Ms Saw, submitted that the purpose of the proposed orders was to allow the mother to spend some more time with the children. She did not oppose the mother’s Christmas proposal, noting that it would only mean that the children would spend one extra night with their mother.

10. However, the Independent Children’s Lawyer is concerned about the state of the mother’s accommodation for the children. As they get older, it will become less and less appropriate that the children should share beds, especially as one of them is a girl. The Independent Children’s Lawyer has some concerns that even one extra bedroom would not be sufficient for the children’s needs.

11. In any event, further overnight time would be contingent on the sleeping accommodation that the mother can provide for the children.

The Relevant Law in Respect of Parenting Applications

1. The Full Court of the Family Court set out in Goode & Goode[3] the way a court should approach an interim parenting application.

   [3] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

2. Needless to say, I have considered the objects and principles in s.60B of the Act, the requirement of s.60CA that the best interests of the child must be the paramount consideration and the guidance given by s.60CC as to how the court determines what is in children’s best interests.

3. I have also considered the requirements of s.61DA in respect of parental responsibility and s.65DAA, which applies where the Court makes an order that children’s parents should have equal shared parental responsibility.

Conclusions

1. I do not propose to make any order about parental responsibility, noting what is said by s.61DA(3) in respect of interim parenting hearings.

2. I do not consider that this is a case where either equal time or substantial and significant time with the children’s parents would be reasonably practicable at this stage. The matter can be considered at a final hearing.

3. I have read the recommendations in the Family Report. Essentially, the Family Consultant noted at paragraph [44] on page 20 that the children all seemed “keen or agreeable to spending more time with their mother, but not too much more time.” They appeared to be settled in their current arrangement and seemed to prefer having a “primary home base”.

4. The Family Consultant also expressed the view that the children are at an age where “continuing to share beds could be quite problematic”. Whilst the father seemed to the Family Consultant to be preparing for the children to have their own beds, the concern was expressed that:

   …unless Ms Darcy is able to find more spacious accommodation, it may be impractical for the children to spend too much more time with her.

5. The Family Consultant recommended at paragraph [47] of the Report that the children should spend time with their mother:

   …from after school on Friday to 6pm on Monday each alternate weekend and every Wednesday (or other day as agreed) from after school until 8pm. If the mother obtains larger accommodation which allows the children to have their own beds, it is recommended that the children spend time with her each alternate Thursday from after school to Monday before school, and in the alternate week, after school on Tuesday to before school on Wednesday (or some other mid-week night).

6. In my view, whilst it appears to be in the children’s best interests to spend more time with their mother, the difficulty with sleeping accommodation for the children acts as a major obstacle to their spending more overnight time with her. As the children grow bigger and older, it is less and less appropriate or in their best interests for them to be sharing beds.

7. For this reason, I am not persuaded that there should be any increase in the amount of time the children spend with their mother overnight, beyond the amount to which the parties have consented.

8. Sleeping accommodation is not an issue where the children are spending time with their mother after school and then going back to their father’s residence to sleep. Thus, it seems to me to be in the children’s best interests to spend time with their mother:

   a)Each Thursday from after school until 8:00 pm; and

   b)Each alternate Monday from after school until 8:00 pm.

9. This will increase the children’s time with her without causing any major disruption to their current living arrangements. Again, I do not propose to vary the proposed Christmas arrangements as suggested by the mother. It is important that the father has already booked accommodation for the children’s holiday with him at [S] in late December, and this should continue as planned. The following year will be a different matter.

10. The proceedings should be set down for final hearing. In the meantime, the parties need to consider what arrangements can be made for adequate sleeping accommodation for the children as they grow up. This may well be an important issue at the final hearing next year.  

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 September 2014