DARVISH & DARVISH

[2014] FamCA 290

FAMILY COURT OF AUSTRALIA

DARVISH & DARVISH [2014] FamCA 290

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 – whether the father’s medical condition affects the father’s parenting capacity

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Darvish

RESPONDENT: Mr Darvish

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: PAC 3437 of 2012

DATE DELIVERED: 1 April 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 1 April 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Collins & Thompson

SOLICITOR FOR THE RESPONDENT: Sage Solicitors

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

Orders

1. The Independent Children’s Lawyer is excused from further attending today.

2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the children of having a meaningful relationship with both of the children’s parents;

   (b)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;

   (c)The nature of the relationship of the children with:

   (i)each of the children’s parents; and

   (ii)other persons (including any grandparent or other relative of the children);

   (d)The likely effect of any changes in the children’s circumstances arising from the orders proposed by each of the parents, including the likely effect on the children of any separation from:

   (i)either of the children’s parents; or

   (ii)any other child or other person (including any grandparent or other relative of the children including sibling or step sibling) with whom the children has / have been living

   including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

   (e)The capacity of:

   (i)each of the children’s parents; and

   (ii)any other person (including any grandparent or other relative of the children)

   to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity;

   (f)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

3. The proceedings be relisted no less than seven (7) days after release of the Family Report.

4. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena (order made in Chambers).

5. Orders 4(a) (i) to (iii), 4(c) and 5 in Court Exhibit “A” to the orders made on 17 January 2014 are discharged.

6. B and C are to spend time with the father from 10.00 am on Saturday 12 April 2014 to 7.00 pm on Sunday 20 April 2014.

7. D is to spend time with his father from 10.00 am on Saturday 12 April until 10.00 am Monday 14 April 2014 and from 10.00 am Friday 18 April 2014 to 7.00 pm on Sunday 20 April 2014.

8. During the July 2014 school holidays and each of any other school holiday period that occurs prior to the adjourned Court date:

   (a)B and C are to spend time with their father for a block period of eight days and seven nights; and

   (b)D is to spend time with his father for a similar regime of three days at the beginning and end of that block period.

9. 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 is suspended during the school holiday period and is to commence again on the first weekend falling after the holiday period.

10. 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 is suspended during the school holiday period and is to commence again on the first Tuesday of the school term period.

11. The parties are to complete all documentation required to commence the Keep-In-Contact program at Counselling Services in Suburb E within 7 days of today’s date.

12. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

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

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application in relation to three children spending holiday time in the upcoming school holidays with their father.  The children are B, who is almost 12, C, who is eight, and D, who is three.

2. The mother commenced her application for parenting orders in August 2012 and the father’s Response in relation to it always included the issue of school holidays and his application has been at all times for half of the school holidays.

3. On the last occasion in Court, which was the first day of the Less Adversarial Trial, the parties were mainly concerned with orders relating to weekend time with the father and the issue of school holiday time in April 2014 was stood over until today.  A notation to this effect was made in the Orders of 17 January 2014.  As I understand it, the Orders made on 17 January were to be put in place with the parties assessing how the children managed with the weekend time with their father in the meantime and during this period D commenced spending overnight time with his father for the first time.

4. Neither party filed any further material for the purposes of today’s proceedings and so the only evidence the Court can utilise is any affidavits filed to date and, in my view of particular relevance, the evidence given in the course of the Less Adversarial Trial, particularly that of the Family Consultant.

5. The father is seeking orders for holiday time in the upcoming Easter holidays as well as any holidays that occur prior to the final trial days.  The mother and the Independent Children’s Lawyer only addressed the April 2014 school holiday period.

6. The father proposes that the Court make an order for the two older children to spend between 12 April and 20 April with him and that D also spend two nights and three days with him while his sisters are spending time with him at the beginning and the end of the nine day block.  The mother proposes that the children spend one extra weekend with their father in the school holidays and that is in addition to the alternate weekends that they are spending with him at this stage.

7. In this matter, the parents have joint parental responsibility.  There seems to be no dispute that it is in the best interests of the children to live with their mother and the only dispute relates to time spent with the father.  At the time the children were interviewed by the Family Consultant for the purposes of a Children and Parents Issues Assessment, the children had not spent any overnight time with their father since the separation of their parents.  So far as spending overnight time was concerned, B indicated that she thought it would be alright to stay overnight with her siblings with her father, whilst C, who was seven, said she did not want to sleep over at her father’s house because he had clothes that she did not like.  She did say, however, that she did not feel scared of anything or anyone spending time with her father.

8. The Family Consultant observed interactions of the children with each of their parents and the only matter of significance was that upon separation from his father D became distressed and he also became distressed when his mother and sisters went into the observation room together.

9. One of the mother’s concerns at the time of the interview with the Family Consultant was that the father, who is an epileptic, did not take his epilepsy medication and she was concerned about the risk that that might pose to the children if he were to have an epileptic fit.  The mother said that she did not feel comfortable with the children staying overnight with the father also because she did not know who else was in the house and she did not think that the father could keep the children safe because he spent most of his time sleeping.

10. The father, who had originally sought an equal time arrangement with the children, told the Family Consultant that he was no longer seeking that as it did not make sense.  He said that he did not feel that his epilepsy was a problem for the care of the children and he advised that he had some concerns himself about the mother’s care of the children and suggested that she had been neglectful on occasions.  He was also concerned about her mental health.  He described he and the mother as having zero communication. 

11. In summary, the Family Consultant said the children appeared to have positive relationships with both of their parents.  So far as overnight time is concerned, she said that if the Court were to make such an order that involved overnight time, the children might find it easier to adjust if the time was gradually increased.  She also said that with respect to B and C, considering their ages and stages of development, they should not have significant difficulty making the adjustment.  So far as D was concerned, she said that it would be ideal for overnight time to commence after he turned three and at that stage, she said it would be considered developmentally appropriate that he have the same spend time arrangements as B and C.

12. The Family Consultant expressed some concern in September 2013 that the mother on a particular occasion did not appear to be encouraging of D to spend time with his father and seemed to be inflexible around that issue.

13. At the first day of the Less Adversarial Trial the mother, the father and the Family Consultant were all concerned about the parents’ inability to communicate as the main issue for them and they recognised their inability to communicate was placing stress on the children.

14. As far as overnight time with the father was concerned, the Family Consultant said her only concern was his age and it might benefit him to increase time gradually and then spend the same time as the other two children with the father.  She said that the older girls would benefit from overnight time with their father and the advantage of overnight time is that that parents are able to parent in more aspects of the child’s life, such as preparing meals and bed time and the like, and it also provides quality time with that parent.  The Family Consultant said that D’s time with his father should start by two occasions with the father during the week.  It should then be moved to one overnight and then into two overnights, but that overnight time was not recommended for under three years of age.  She said that the two older girls could see their father weekly or fortnightly, but D should see him more frequently, but for shorter times.

15. So far as the making of the orders is concerned, the Court must, of course, consider the application as against the objects and principles in the part of the Family Law Act 1975 (Cth) that deals with parenting. Considering that this is a matter in which the parties have equal shared parental responsibility, in the ordinary course the Court must also consider equal time and substantial and significant time.

16. The application of the father is that he spend half the upcoming holidays with the two older children and lesser time with D, whereas the mother’s proposal is significantly less than even substantial and significant time with the father.

17. In relation to the s 60CC considerations, this is a matter where the benefit to the children of having a meaningful relationship with both of their parents is particularly significant.  Issues of the need to protect the children from physical or psychological harm from being subjected to abuse, neglect or family violence, do not, in my view, arise in this application.  It is difficult for the children to develop a meaningful relationship with their father if they have limited time with him in the school holidays and, in my view, it is of concern that they have not had significant periods of time with him since separation. 

18. The views of the children have been referred to and, in my view, some weight should be attached, in particular to the eldest child’s views in light of her age.

19. Each of the children has a good relationship with the parents.  It was suggested by the mother in opposing the order and in making submission that the father was, particularly initially after separation, not particularly child‑focused.  It seems to be suggested that he has failed to take his responsibilities seriously.  This appears to be a submission directed to the issue of the father’s attitude to the children and responsibilities of parenthood.  On the evidence before me, which, of course, I must only consider the uncontested evidence and, in my view, particularly the evidence that arose on the first day of the Less Adversarial Trial, I am not of the view that the father has shown an irresponsible attitude to parenthood.  Indeed, the whole tenor of his application to spend time with the children on the weekend and in holidays appears to be responsible and child‑focused. 

20. So far as the likely effect of any change in the children’s circumstances by moving from weekend time to a block of eight days in the holidays is concerned, I consider the submission made by the mother that it is a big significant step from going from one night overnight to eight.  I have to consider the evidence of the Family Consultant and the ages of the children and, in my view, in light of that evidence this change is likely to benefit them.  The Family Consultant’s evidence was to the effect that, although there should be a gradual change moving from frequent regular daytime contact between D and his father to overnight time, that fairly soon after he has turned three his regime of time with his father should be similar to that of his older sisters.  In this application the father is only seeking so far as D is concerned, two overnights with the father at the beginning and the end of the block period. 

21. There was an issue of suggested incapacity or impaired capacity of the father to provide for the children’s needs due to his diagnosis of epilepsy which arose on the first day of the Less Adversarial Trial, but in light of the medical evidence that has been filed, this is, in my view, not an issue.  Each of the doctors expresses the view that the father’s epilepsy does not inhibit or impair his capacity to care for his children.

22. No issue of family violence arises in this matter.

23. In summary, this is a matter where there are, in my view, no significant issues of impairment of either parent to care for their children.  Currently, they share parental responsibility for the children and this is intended to continue in the future.  A regime which gives effect to the primary consideration of children having the benefit of a meaningful, or as the authorities say a significant relationship with each of their parents, would be better promoted, in my view, by the orders proposed by the father, rather than the mother.  Accordingly, those are the orders that will be made.  In my view, it is also appropriate to make orders providing for a regime for the children to spend a similar pattern of time with their father in each of the school holidays prior to the next occasion upon which the matter is in Court and that is after the release of the Family Consultant’s report.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 April 2014.

Legal Associate: 

Date:    6 May 2014