Darvish and Darvish

[2014] FamCA 1081

FAMILY COURT OF AUSTRALIA

DARVISH & DARVISH [2014] FamCA 1081

FAMILY LAW – CHILDREN – Interim parenting – best interests of child – should the children spend holiday time with the father – should the younger child’s overnight time with the father be increased during holiday time – best interests of the child

Family Law Act 1975 (Cth)
APPLICANT:	Ms Darvish

RESPONDENT: Mr Darvish

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 3437 of 2012

DATE DELIVERED: 2 December 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Burke of Collins & Thompson

SOLICITOR FOR THE RESPONDENT: Mr Tannous of Sage Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Naidovski of Legal Aid NSW Parramatta Family Law

Orders

(1)The document headed Minutes of Orders sought by Respondent Husband shall become Court’s Exhibit “B” in today’s proceedings.

(2)Orders are made in accordance with paragraphs 1 to 4 of Court’s Exhibit “B”, as follows:

1.         During the December 2014 school holidays:

(a)The Children are to spend time with their father from 10.00am Saturday 20 December 2014 to 6.00pm on 3 January 2015 and 10.00am on 17 January 2015 to 6.00pm Wednesday 21 January 2015;

(b)The Children are to spend time with their mother from 6.00pm on 3 January 2015 to 10.00am on 17 January 2015 and from 6.00pm on 21 January 2015 until the commencement of school.

2.That the regime of the Children spending each alternate weekend with their father set out in order 3 of Court Annexure “A” to the orders of 17 January 2014 is suspended during the school holiday period and is to commence again on the first weekend falling after the holiday period.

3.That the regime of D spending time with his father set out in order 3A of Court Annexure “A” to the orders of 17 January 2014 is suspended during the school holiday period.

4.That order 1(a) is suspended from 3.00pm Christmas Eve to 3.00pm Christmas Day so that the Children spend time with the mother during that period.

(3)Pursuant to Section 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 included in these Orders, annexed hereto.

Notations

(4)The father may wish to take the children for a holiday in or outside the Sydney area during some or all of the time they spend with him during the holiday period.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darwish & Darwish 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 3437 of 2012

Ms Darvish

Applicant

And

Mr Darvish

Respondent

REASONS FOR JUDGMENT

1.This is an application by the father in parenting proceedings for orders in relation to the school holiday period which is due to commence soon.

2.The children involved are two daughters who are 11 and 9 years old and a young son, D who will be four years old in February next year.

3.This is a matter where the mother has been, in my view, quite hesitant to support the children having a relationship with the father that includes overnight time. Having regard to the fact that she has been the primary caregiver including from the time D was very young, it was important and appropriate for her wishes about the children’s level of comfort and what was appropriate for them to be given significant weight.  For this reason, the time that the children spent with their father was more gradually increased for children of their age than one would normally expect in a matter where there are no particular concerns about issues relating to the safety of the children.

4.The mother had previously raised the issue of the father’s health and medical condition being some form of impediment to him caring for the children full-time but I have certainly been satisfied at an earlier stage there is not any impediment and there has been nothing identified by either the Children’s and Parents Issues Assessment or the recent Family Report which suggests that the father is not perfectly capable of looking after the children when they are in his care.  The Family Report also confirms the strength of the relationship between the father and the children and for the siblings between each other.

5.The mother proposes that during the school holiday period the two older children spend a three week block, that is, half of the school holiday period with the father and that within that three week block there be four periods of three days and three overnights for D.

6.The mother says that her regime would be in the best interests of D because she has been his primary carer since he was 13 months, at most he has spent two nights away from her and that previous orders have differentiated between the time D spends with his father and the older two girls having regard to their age differences.

7.The father says that the Children’s and Parents Issues and Assessment report identified that after D was three years of age he should be spending time with his father under a similar regime to that of his sisters. It was also submitted on behalf of the father that this is the first period of time where the father has proposed that he have a more lengthy period of time with all the children which is appropriate for a school holiday period as it enables the father to be able to take the children away on a holiday and spend some extensive and more relaxed time together without having to involve D in a change of care every few days.

8.There is nothing to suggest that D is a particularly anxious child to the extent that it would be harmful for him to be separated from his mother for a greater length of time than has previously been the case.

9.In my view, the father’s alternative proposal, that is, a block of three weeks for two periods with each parent would be too long for D at his age to be separated from his mother and indeed I think even two weeks is more appropriate for all of the children having regard to their relationships with mother and the pattern of the father’s care up until now.

10.It will represent a significant increase to go from two nights to two weeks but D will be supported in the very good relationship that he has with his father which is reported in the Family Report and the excellent relationship that he has with his two older sisters and their caring attitude towards him.

11.As noted there is no particular concern about the father’s capacity or concerns about the nature of the child’s relationship or the likely effect in the circumstances as being away from his mother. Having regard to the various considerations and particularly the emphasis in the Family Law Act 1975 (Cth) on both parents sharing the parenting role and participating with their children in the normal kind of parent/children interactions which include down time during school holidays and the potential for going away on holiday, I am of the view that it is in D’s best interests for him to spend time with his father in accordance with the order proposed by the father and that it is also more appropriate and more in the older girls’ best interests for them to be spending that time which is a two week period followed by a four day period in the holidays rather than the two blocks of three weeks as proposed by the mother.

12.Accordingly, I make the orders as proposed by the Respondent father.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 December 2014.

Legal Associate: 

Date:  5 December 2014