Davis and Davis

[2012] FamCA 360

FAMILY COURT OF AUSTRALIA

DAVIS & DAVIS [2012] FamCA 360

FAMILY LAW – CHILDREN - Final orders sought save for a dispute about terminology – Where one child is with father for two-fifths of school term time and one half of school holidays – Whether that arrangement should be referred to as “live with” or “spend time with” – Best interests of child considered

APPLICANT: Ms Davis

RESPONDENT: Mr Davis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Casey

FILE NUMBER: MLC 8067 of 2009

DATE DELIVERED: 2 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Lennon, solicitor as counsel
Lennon Mazzeo

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Fletcher, solicitor as counsel

Universal Law, Cameron Bell & Associates

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER Ms M Casey
Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED:

1. That all previous parenting Orders be discharged.

2. That the Father and Mother have equal shared parental responsibility for the children M born … October 1999 and C born … December 2001.

3. M and C live with the Mother.

4. M shall spend time with and communicate with the Father in accordance with M’s wishes.

5. C shall spend substantial and significant time with and communicate with the Father as follows:

   (a)For a two week block in each five week cycle;

   (b)One half of each school term and half of the long vacation holidays being the first half in even numbered years and the second half in odd numbered years;

   (c)The Father and Mother agree to resolve the scheduling of the time it is proposed that C spend with the Father by no later than 30 November in each calendar year and that any subsequent changes to the agreed scheduled timetable be communicated in writing by email and agreed at least two weeks prior to such rescheduling;

   (d)Such other and further times as agreed between the parties from time to time.

6. Without admissions the Father is hereby enjoined and restrained from causing the children M or C (or either of them) from being involved or participating in, observing or otherwise being exposed to:

   (a)chakra puncture;

   (b)esoteric massage;

   (c)esoteric healing sessions or meetings;

   (d)esoteric educational lectures; and

   (e)any other esoteric healing practice.

7. Without admissions each of the Father and Mother are hereby enjoined and restrained from striking the children (or either of them) as a means of punishment or censure.

8. The parties, M and C will continue to attend upon Mr P for family therapy as directed by the family therapist and agreed to by the parties.

9. During the period of family therapy the parties agree that they will each follow the directions of the therapist in relation to M spending time with his Father.

IT IS ORDERED:

1. That the appointment of the Independent Children’s Lawyer is discharged.

2. That pursuant to ss.65DA(2) and 62B 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 set out in Annexure A and these particulars are included in these orders.

3. That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

4. That the reasons for decision this day be transcribed and when settled copies be made available to the parties.

NOTATION:

1. The Father and Mother agree that should there be any disagreement in the future in relation to parenting matters they will attend family mediation prior to any Court application being made.

2. That the Father and Mother agree that the Mother may enrol the children, M and C at B School provided that such enrolment will not alter the Binding Child Support Agreement entered into by the parties and the Father will sign all such documents as may be necessary to give effect to this notation. Furthermore, the Mother acknowledges that she will remain liable for the fees pertaining to the children’s enrolment at B School.

3. That these orders may be altered by the parties as agreed to from time to time and when the parties do so the alteration must be evidenced in writing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davis & Davis 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 MELBOURNE

FILE NUMBER:  MLC 8067 of 2009

Ms Davis

Applicant

And

Mr Davis

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me with the parties and the Independent Children’s Lawyer having agreed to all parenting arrangements in relation to M, born in October 1999, and C, born in December 2001, except for one of terminology.  That is, what the period in which the children are with the father should be called. 

2. It is a difficult parenting case which has been in my docket for some time, whilst the parties, responsibly and commendably, have sought the assistance of Mr P, clinical psychologist, on a therapeutic rather than a reportable basis.  The parties are to be commended for taking the therapeutic course.  They are to be congratulated for reaching an amicable resolution on every substantive matter in issue between them.

3. The child, C (11 years old), is with the father regularly.  The father travels from New South Wales for two out of each five weeks, and lives with C in a house which he maintains for that purpose.  The orders also provide that C will be with the father for one‑half of school term holidays.  So C is with his father for more than two‑fifths of his time.  For the balance of the time, C is in the mother’s household.

4. The arrangements in relation to M (12 years old) are different.  M, is not spending regular time with the father.  It is, however, hoped that he will do so at some time in the future, and the parties will, together, work toward that and other things with Mr P. 

5. The dispute which I am to resolve is whether the period for which C is with the father ought be referred to as C “living with” the father or “spending time” with the father.  It is not a matter of substance.

6. The parties agree that I determine the matter today, based on submissions only.  Each has had an opportunity, through their legal representative, to make those submissions.  The father and his solicitor, Ms Fletcher, have been linked in by telephone, but have been given an opportunity to converse together in private, including during the running of the hearing before me.

7. The mother seeks that the period C is with the father be referred to as “spending time” rather than “living with”.  Mr Lennon, for the mother, submits that the father’s place of primary residence is New South Wales so that the father merely visits Victoria.  Therefore, the period for which C is with the father could not, on his reasoning, be “living with” time because the father, in fact, “lives” in New South Wales.  It is claimed that C’s time with the father could not be characterised any differently than that of the father who is a visitor in Victoria.  It is submitted, therefore, that C’s time with the father is best referred to as “spending time”.  I reject that submission. 

8. The submission misses the point of the arrangements that the parties have agreed to.  Clearly, that the father is very involved in C’s life and C with the father.  It misses what I understand the legislation is designed to achieve, that is, to regulate periods when children will be with each parent, whilst taking away from the division of time any concepts of a proprietary nature. 

9. It is likely to have been an intentional consequence of the legislature dispensing with nouns such as “residence” and “contact” in favour of verbs such as “live with” and “spend time with”, that we have moved away from definitional concepts.  Accordingly, the legislation now describes what the child does rather than what the parent has.  A child can live with a parent or parents on a boat that goes from port to port or in a hotel.  The relationship that the adult has with his/her surroundings does not alter what the child does.

10. On behalf of the father, Ms Fletcher’s submission is that to classify the period C is with the father as “spending time” devalues the contribution that the father makes to C’s life and C’s involvement in the father’s life.  I can see, on an emotional level, why the father may think that.  He is very involved in C’s life. 

11. I have taken time to refer the parties to, in particular s 65DAA of the Family Law Act, which is the provision which requires the court to consider whether children should spend equal or substantial and significant time with parents who have shared parental responsibility. The parties here have agreed on the periods for which each child will be with the father. However, in the implementation of the provisions of section 65DAA, there are definitions within it which, I think, are illuminating for this case. In particular section 65DAA(3), which provides that “a child will be taken to spend substantial and significant time with a parent only if: -

    (a) the time the child spends with the parent includes both days that fall on weekends and holidays, and days that do not fall on weekends and holidays;  and

    (b) the time the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child;  and

    (c) the time the child spends with the parent allows the child to be involve in occasions and events that are of special significance to the parent.”

12. This is the nature of the period that C spends with the father. 

13. I note that the Act provides for equivalent time to be spent with each parent, which, of itself, indicates to me that there is no legal distinction between “living with” and “spending time with”.  In fact, it is a matter of agreement between the parties that this is a dispute about terminology, not a dispute about substance, although I don’t discount or underestimate the importance to either of them of their respective positions and out of respect for them I will decide this remaining issue about terminology.

14. The Independent Children’s Lawyer, Ms Casey, made submissions in support of her recommendation that paragraph 5 of the minutes that the parties have agreed to ought refer to the periods C spends with the father as “spending time”, rather than “living with”.  She submitted that the children, M and C, should have the same kind of terminology attaching to both of them, so there is not a distinction drawn between them.

15. Even though Ms Casey does not envisage the children perusing the orders in any detail, the Independent Children’s Lawyer thinks it undesirable for the parties, or anyone else, to be able to draw a distinction in the minds of the children as to terminology which refers to the periods that they are with the father.  She does, however, say that it would be appropriate to refer to C’s time as the substantial and significant time which it is, in accordance with the definitions in the relevant legislation.  The father agrees and seeks that, if he does not succeed in his application to have it made a “live with” order, that the time be called substantial and significant.  Mr Lennon, for the wife, says that the wife has no difficulty with it either.

16. As with any parenting order, what I must consider are the best interests of the children.  That is the paramount consideration.  It is not the only consideration.  Of course, I take into account the ownership the parents have in the agreement, and how comfortable they will be in working with the orders with the various terminologies.  I have regard to how far they have come since I first saw them and prior to their involvement with Mr P. It’s a matter of some fairly small compass however and not a matter which, in my view, I will be assisted by going through all of the additional considerations individually.  I need take them into account but I do so generally. 

17. C and M are fortunate children who have parents who are very interested in their welfare, and appear to be doing everything in the current circumstances they can to make things as good as possible for the children.

18. I am satisfied that the period that C spends with the father ought be described as “substantial and significant time”.  I am not satisfied that it should be described as “time in which C lives with the father”, although that is what he will, in the common meaning of the word, be doing. 

19. I am largely persuaded by the submissions of the Independent Children’s Lawyer, that there should be as little distinction between the children as possible. I am satisfied that this outcome is true to the legislative framework we have, at the moment, and that it is the result which is most consistent with the best interests of C, and for that matter, M.

20. I will pronounce the final orders incorporating the concessions that the parties made about C’s time being substantial and significant.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 May 2012.

Associate: 

Date: