DARCY & DARCY

[2016] FCCA 1756

FEDERAL CIRCUIT COURT OF AUSTRALIA

DARCY & DARCY [2016] FCCA 1756

Catchwords:
FAMILY LAW – Child – parenting orders – final orders – consent orders – three children – discrete issue – additional time on top of already significant and substantial time – flexibility of orders for developing relationship with one child.

COSTS – Legal Aid – matter three years on foot – applied for orders largely successful.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2007) 36 Fam LR 422

MRR v GR (2010) 240 CLR 461

Applicant: MS DARCY

Respondent: MR DARCY

File Number: SYC 1069 of 2013

Judgment of: Chief Judge Pascoe

Hearing dates: 11 & 12 July 2016

Date of Last Submission: 12 July 2016

Delivered at: Sydney

Delivered on: 13 July 2016

REPRESENTATION

Counsel for the Applicant: Ms P Carr

Solicitors for the Applicant: David H Cohen & Co Solicitors

Counsel for the Respondent: Mr Neil Jackson

Solicitors for the Respondent:	Hughes & Taylor
Counsel for the Independent Children’s Lawyer:	Ms Elizabeth Stolier
Solicitor for the Independent Children’s Lawyer:	Mark Whelan Lawyer

ORDERS

1. The Orders set out in the document attached to these Orders, marked ‘Annexure 1’ and signed by each of the parties and signed and dated by me, be made by consent.

2. Order 4 of Annexure 1 be amended in the following manner, as underlined:

   “X born (omitted) 2003 and Y born (omitted) 2005 (“the children”) shall spend time with the mother as agreed between the parties but failing agreement as follows:

   …

   b. From after school Tuesday until 8:00pm Tuesday in the first off week per four-week cycle

   bA. From after school Tuesday until before school Wednesday in the second off week per four-week cycle.

   …”

3. The Father pay Legal Aid, by way of deposit into an identified fund, $1,500 as a contribution to the costs of the Independent Children’s’ Lawyer.

4. Pursuant to s.65DA(2) 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 party contravenes these Orders are attached to these Orders.

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

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, in addition to making the majority of Orders proposed by the parties by consent, I need to decide whether or not the daughter of the parties, Y (born (omitted) 2005) (“Y”), will spend overnight time with her Mother, the Applicant, on Tuesdays of the off week from after school until Wednesday morning before school. This question discretely relates to Order 4(b) of the otherwise wholly consented to Short Minutes supplied to my Chambers by the Independent Children’s Lawyer (“ICL”) on the morning of Tuesday 12 July 2016, prior to the commencement of day-two of the Final Hearing.

2. I note that such an Order would also allow the parties’ middle child, X (born (omitted) 2003) (“X”), to spend the same overnight time with the Mother and Y at his discretion.

3. I also note that the parties’ eldest child, Z (born (omitted) 1999) (“Z”), is now 17 years old. All parties are agreed that Z should spend time with the Mother at his discretion.

Submissions

1. The ICL submitted that the consent orders proposed in the Short Minutes provided for significant and substantial time for Y to spend with the Mother and so the extra night the Mother applies for would be additional time on top of that significant and substantial time.

2. The ICL submitted that the significant and substantial time without the additional time is “enough” for Y given her age.

3. The ICL pointed out that the additional time may not be practicable due to the high conflict between the parties and their difficulties to date regarding communication.

4. The ICL submitted that in her opinion, the Mother’s professional situation namely a (occupation omitted) whose work schedule is characterised by ‘shifts’ but who was currently unemployed, was “unstable” at the moment.

5. The ICL also pointed out that limiting the Tuesday in question to after dinner time and not overnight, may be more conducive to X also attending dinner.

6. Counsel for the Father supported the ICL’s submissions and further submitted he was concerned about the “unknowns” in relation to not only the Mother’s work schedule but her parenting capacity as raised by the Family Report Writer, Ms R, in her Family Report (issued 16 February 2016), which was entered as “Exhibit I1”.

7. Counsel referred to the Family Violence incident involving X, which is detailed in paragraph 36 of these Reasons, and the failure of the Mother to promptly notify the Father of the incident.

8. This failure to communicate it was submitted is indicative of the problems that exist between the parties as to proper communication regarding the children.

9. It was submitted by Counsel that additional time would mean additional communication and that is obviously difficult for these parties who are in high conflict.

10. Counsel did, however, note the positive relationship between the Mother and Y and reiterated that the consent orders as submitted in the Short Minutes provided for significant and substantial time.

11. Counsel for the Mother submitted that the consent orders, Y has less overnight time with the Mother than under the previous Interim Orders. This was not in accordance with the expressed views of Y for more time.

12. Presently, the Mother and the Father adequately communicate via text and email regarding change-overs and there have been few instances of problems about this mode of communication. Counsel for the Mother submitted that the proposed additional overnight time posed no additional problem regarding communication.

13. Counsel noted that with the additional overnight time, there would be fewer occasions for change-overs as change-over would be facilitated via pick-up and drop-offs at school, not at the Father’s house.

14. Counsel detailed the complicated pick and drop off regime the Mother adequately performs for Y, and X when applicable. Counsel submitted that the additional night would enhance the interaction between Y and her Mother.

15. It was submitted that at 11 years old, Y’s clear wish to spend more time with the Mother should be given considerable weight. Indeed, Y had told Ms R that she wanted a ‘week-about’ schedule between the Mother and Father.

16. Counsel submitted that Y was old enough to know what she wants. Counsel submitted that Y obviously loves her mother and enjoys time alone with her.

17. Counsel referred to evidence given by Ms R who stated that she (Ms R) saw no danger to Y in spending additional overnight time with the Mother.

18. Y is an 11 year old girl who currently lives with the Father and spends regular time with her Mother. Y and her Mother have a good relationship as noted by all parties and by Ms R in the Family Report:

    “Y described her relationship with her mother as being all positive. She said that they have fun together and that her mother is kind, helpful, caring and playful.”

19. Under cross-examination, Ms R was asked to give an opinion as to the benefit of Y spending additional time with the Mother. Ms R replied that she was “not concerned” about Y spending additional time with the Mother. Ms R noted that Y would be positive about any additional time with the Mother and may be disappointed if her (Y’s) expressed wishes to spend equal time between her Mother and Father were not met.

Relevant Law

1. The legal principles which govern parenting proceedings are set out in Part VII of the Act. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

2. Section 60B(1) of the Act enumerates the objects of Part VII of the Act as ensuring the best interests of the child, in this case Y and X, are met by:

   a)ensuring that the children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests; and

   b)protecting them from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect, or family violence; and  

   c)ensuring that they receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that both the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of Y and X.

3. In exercising my discretion as to what Order is in Y’s and X’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended. Although the two primary considerations detailed at s.60CC(2)(a) and (b) of the Act must assume greater importance than the additional considerations at s.60CC(3) of the Act, when determining what Orders are in the best interests of the child I must consider all the factors before making a determination.

4. In considering the objects of Part VII of the Act, it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court of the Family Court of Australia decisions, including Goode & Goode (2007) 36 Fam LR 422, and the High Court of Australia decision in MRR v GR (2010) 240 CLR 461.

Primary Considerations

S.60CC(2)(a) The benefit to Y and X of having a meaningful relationship with both of their parents

1. An Order for equal shared parental responsibility was made by consent. The three children all live with the Father.

2. It is common ground that Y spend regular and significant and substantial time with the Mother.

3. Y is at an age where it is clearly in her best interests to have a meaningful relationship with both her parents and to spend meaningful time with her Mother as she matures.

4. It is also common ground that the Mother and X have a strained relationship. Evidence was given that despite having limited contact over the past year, during the past several weeks the relationship has developed more positively with signs of concern and caring exhibited by X towards the Mother.

5. The Orders I make here which complement the consent orders continue to foster X’s relationship with his Mother without constraining or forcing X to spend time with the Mother which may be counter-productive.

s.60CC(2)(b) The need to protect Y and X from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence

1. There is no evidence of any Family Violence or risk of harm to Y when she is in her Mother’s care.

2. In the Family Report at paragraph 25, Ms R refers to a conflict between X and his Mother, which included physical violence by X towards the Mother, as related by the Father. The evidence given by the Mother at trial was that the relationship between X and the Mother was now positive. This was not disputed by the Father.

3. It is clear that X is somewhat troubled and that therapeutic counselling is required. This is dealt with by the consent Orders.

4. The alleged violence against X by the Mother was not tested at trial nor was it pursued as a reason for Y not to have the extra overnight time with the Mother. I do not give weight to the alleged incident with X and the Mother which remains hearsay.

5. The Mother gave evidence about another incident which occurred at her house on Sunday 9 July 2016 (the night prior to the first day of Final Hearing) with her (then) partner, Mr J (also known as “Mr J”) (“Mr J”). At this time the Mother returned home to her apartment with all three children to discover Mr J there apparently intoxicated. Mr J became aggressive in the presence of the children and was especially angry about the presence of X with whom Mr J had had an earlier altercation due to X’s apparently disrespectful behaviour towards the Mother.

6. Overall, the Mother dealt with this unfortunate incident in an appropriate manner, putting the best interests of the children first. The Mother gave evidence that as a result of Mr J’s behaviour her relationship with him was terminated.

7. Counsel for the Father submitted that the Mother had failed to properly communicate with the Father in relation to the incident and that it was X who had alerted the Father and Z who may have called the police.

8. Although the Mother should have been the one who alerted the Father and the Police, if necessary, I do not find any evidence of inappropriate behaviour on the Mother’s part. The situation was clearly a stressful one and I accept that her efforts were centred on protecting the children and removing Mr J, who was allegedly intoxicated, aggressive and uncooperative.

9. There is no evidence of any violence on the part of the Father, although I note that X told Ms R that he (X) sometimes had conflicts with the Father which he was able to handle.

10. Both parents, on the limited evidence available, are involved in the children’s lives despite a period of estrangement between X and the Mother, which I do not propose to canvass here as it is not directly relevant to the discrete matter in question.

Additional considerations

1. I do not intend to separately discuss each s.60CC(3) factor. However, I note that after considering all of the factors, the following factors were taken into account by me in making my decision.

2. Communication between the parties is problematic and this is a case where there is high conflict. The additional time Y will spend with the Mother is likely to reduce the necessity for communication between the parties as Y will be picked up and dropped off at school.

3. The parties are, however, capable of written communication via mobile telephone text message and/or e-mail. The Orders made will facilitate written communication.

4. It appears that Z may have been used by the parties as a go-between in the past. This unsatisfactory situation is largely resolved by the consent orders.

5. I give particular weight to Y’s express views regarding more time with her Mother, including equal time. However, I note that Ms R felt that Y was somewhat immature.

6. Having regard to all the evidence, especially Y’s closeness to her Mother and for her desire to spend more time with her together with Ms R’s observation that:

   “Y seems to be progressing well whilst living with her Father. Perhaps due to her age, gender, and her personality, Y appears to be craving more time with her Mother. There are no indications that Y is at risk of harm in her Mother’s care or that there are any particular problems in their relationship that would suggest a need to limit Y’s time with her Mother.”

7. I also have regard to the fact that there are some uncertainties in the Mother’s household, as to work commitments in particular. I am therefore of the opinion that it would be in Y’s best interests to spend the second Tuesday of the off week per four-week cycle overnight with her Mother. For the first Tuesday of the off week per four-week cycle, Y will spend from after school to 8:00pm with the Mother. The Mother then has certainty in relation to any future employment commitments.

8. I note that this Order affects Y only.

9. The situation is somewhat complicated by the fact that X has a discretion as to whether he will spend time with the Mother when Y is there.

10. Accordingly, it may be that X will only want to spend time with the Mother in between after school and 8:00pm on the second Tuesday in the off weeks of the four-week cycle but not stay overnight. In such a circumstance, I am of the opinion that the Mother should make appropriate arrangements for X to be returned to the Father house.

11. As previously stated, there was no evidence as to any Family Violence which was tested apart from the incident involving Mr J which was, on the evidence presented, ‘one-off’ and quickly resolved by the Mother with the best interests of the children paramount in her mind. I have previously referred to the troubled relationship between X and the Mother.

12. For these reasons, I find my additional Orders to the consent orders are appropriate and should be made.

Costs

1. The ICL made an application for costs against the Father in the sum of $3,700 as a contribution to Legal Aid.

2. This application was opposed by Counsel for the Father.

3. Counsel for the Father submitted that the consent Orders are substantially in accordance with the Orders the Father sought at the outset.

4. No cost Order was sought against the Mother who was funded by Legal Aid

5. I am mindful of the demands on the Legal Aid budget and also the submissions of the Father.

6. Section 117 of the Family Law Act 1975 (Cth) sets out a number of matters to be considered. Of these, I give particular weight to the outcome of the case and the financial circumstances of the Father.

7. As submitted by Counsel for the Father, Final Orders are largely in accordance with what the Father initially sought, but not completely so. Further, although no evidence was given as to the financial circumstances of the Father but I take into account that he is largely responsible for the care of all three children and that he will be paying for X’s additional counselling which is expensive.

8. The matter has been on-going for almost three years. Both parties have benefitted from the assistance of the ICL; the parties have managed to resolve many of the issues. The Court is grateful for the very positive role played by the ICL.

9. The ICL sought costs in the sum of $3,700. However, in all of the circumstances I am of the opinion that a costs order against the Father in the sum of $1,500 is appropriate and should be made

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe.

Date:       13 July 2016