Dolby & Dolby
[2021] FamCA 110
•4 March 2021
FAMILY COURT OF AUSTRALIA
Dolby & Dolby [2021] FamCA 110
File number(s): BRC 10851 of 2019 Judgment of: BENNETT J Date of judgment: 4 March 2021 Catchwords: FAMILY LAW – PARENTING – variation of interim parenting arrangements consequent on children returning to school after easing of pandemic restrictions – relief sought by father opposed by mother on basis that change in circumstances was reasonably foreseeable – orders to operate for short time until a final hearing.
FAMILY LAW – PARENTING – best interests of children.
Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 38 Date of hearing: 4 March 2021 Place: Melbourne Counsel for the Applicant: Ms Colla Solicitor for the Applicant: Lewis & McNamara Counsel for the Respondent: Mr Whitchurch Solicitor for the Respondent: Hicks Oakley Chessell Williams ORDERS
BRC 10851 of 2019 BETWEEN: MS DOLBY
Applicant
AND: MR DOLBY
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
4 MARCH 2021
THE COURT ORDERS THAT:
1.Order 3(b)(iii) of the Orders made 3 December 2019 (relating to alternate weekends), Order 4 (relating to Wednesday/Thursday time), and Order 2 of the Orders made 16 October 2020 (relating to changeover) be discharged.
2.AND IN LIEU THEREOF the husband spend time with the children X born … 2016 and Y born … 2018 ("the children") as follows:
(a)During school terms, for two out of three weekends in a three week cycle as follows:
(i)from 5pm Friday 12 March 2021 to 5pm Sunday 14 March 2021;
(ii)from 5pm Friday 19 March 2021 to 5pm Sunday 21 March 2021;
(iii)from 5pm Friday 23 April 2021 to 5pm Sunday 25 April 2021;
(iv)from 5pm Friday 30 April 2021 to 5pm Sunday 2 May 2021;
(v)from 5pm Friday 14 May 2021 to 5pm Sunday 16 May 2021;
(vi)from 5pm Friday 21 May 2021 to 5pm Sunday 23 May 2021 and continuing in that sequence
(vii)changeover shall occur at the wife's home at the commencement of each visit and at the husband's home at the end of each visit;
(viii)at other times as agreed between the parties
(b)By way of FaceTime video phone calling at 4:30pm each Tuesday and Thursday, commencing on Tuesday, 9 March 2021, with the husband to telephone the wife’s mobile phone or, if the wife is attending full time employment, then the maternal grandmother's mobile phone, and with the wife to ensure the children are at home or other quiet environment and obvious distractions removed
(c)The wife shall forthwith provide the husband with the maternal grandmother's mobile telephone number, and shall keep the husband informed of any change to the maternal grandmother's mobile telephone number within 24 hours of such change of mobile telephone number.
(d)During the Easter 2021 first term school holidays:
(i)from 12 noon Friday 2 April 2021 until 2pm Sunday 4 April 2021; and
(ii)(ii)from 5pm Tuesday 6 April 2021 to 12 noon Sunday 11 April 2021.
3.The final hearing of this matter set down for 17 May 2021 be vacated and in lieu thereof the matter be set down to commence on 24 May 2015 at 10.00 am for five days.
4.The parties do all acts and things necessary to inform the family report writer, Ms B, of the outcome of the proceedings this day.
5.My reasons for decision this day be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.
6.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
7.AND IT IS NOTED that this matter is otherwise listed for mention before me on 19 March 2021 at 4.00 pm to follow upon the conclusion of the private mediation with Ms Alison Burt of Counsel or as otherwise advised by Ms Burt to my Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dolby & Dolby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J
This matter comes before me for a compliance check for a final hearing of parenting and financial issues which is set down for 17 May 2021. The parties have a private mediation with Ms Burt, of counsel, on the 17 March 2021. The family has recently undergone assessment by Ms B, family report writer for an updated family report. I have directed that the parties provide Ms B with a copy of any further parenting orders made today together with these reasons for decision. Ms B’s first family report is dated 6 June 2020.
The husband and wife separated in September 2019 after a relationship of 15 years. The separation occurred when the mother took the children to City C in Queensland, where her parents reside, and did not return. The children concerned are X, born in 2016 so he will shortly be five years old. He is going to prep at a school local to where the mother and children live. Y just turned three and attends three-year-old kinder. Whilst in City C the mother instituted proceedings in the Brisbane registry of this Court, on 10 September 2019, seeking orders enabling her and the children to reside permanently in City C. The father opposes the relocation of the children to City C. The mother reluctantly returned the children to Victoria in December 2019 pursuant to orders which were made by consent.
The father remains in occupation of the former family home in Suburb D. Upon returning to Victoria, the mother did not want to return to live at the family home in Suburb D and instead decided to rent accommodation. The mother has twice elected to situate herself and the children in Suburb E which is not at all conveniently located to Suburb D. The mother first rented accommodation in Suburb E when she returned from City C. In December 2020, the mother vacated the first rental accommodation and moved into other rental accommodation in Suburb E.
The current arrangements for the children to spend time with the father include each alternate weekend from Friday to Sunday and then every Wednesday night until the conclusion of school on Thursday. This arrangement was ordered when pandemic restrictions were in force in Melbourne and schools were closed. The father’s mid-week time was exercised with the children at his home in Suburb D without the need to take X to school in Suburb E.
In December 2020, the father brought an application to alter periodic time spent with the children to take into account the fact that both children would attend some form of school or kindergarten in 2021. The application was not listed in proximity to the date of filing but was set down today when the matter is before me to check on the readiness of it for a private mediation and the final hearing.
The matter proceeded on the Court’s Microsoft Teams platform. Each party was represented by counsel. Each party participated in the hearing.
Because X goes to school now, the father is required to exercise his Wednesday night time somewhere proximate to X’s school because the distance is approximately 45 minutes by car between the mother’s residence and the father’s residence – even longer during school traffic. The father obtains commercial accommodation for one and a half nights which means that he has use of the accommodation up until a late check-out time on Thursday. The father and Y take X to school on Thursday morning, return to the hotel accommodation until the late check out time. Then Y and the father pick X up from school, they spend a short time in the Suburb E area and the father then takes the boys home to the mother’s residence.
The father’s application is to have the children for two out of three weekends but to discontinue his mid-week time. The father’s application gives the father less time with the children. However, he says that it will be better quality time because they will pass that time in the familiar and consistent surroundings of the former family home (as opposed to hotel accommodation). The mother opposes the father’s application. The mother says that she has now obtained full-time employment, and down time, relaxation and quality time with the children on the weekend is more precious or in shorter supply than it was when she did not work full-time. The mother wants to have at least each second weekend with the children in her home.
The mother contends that a parenting arrangement whereby the children spend two out of three weekends with the father will inhibit the children’s ability to establish themselves in community and sporting life in the Suburb E area. On my enquiry of the mother through counsel, I was informed that X plays soccer on a Tuesday and Thursday, not on a weekend. X or the mother aspires that he become involved in Auskick but, even on the mother’s case, that’s not something he could do each week in Suburb E if the father retains each alternate weekend (as the mother proposes). On the mother’s case, Auskick is an activity that X could only do each second week in Suburb E. I have not had evidence in the matter but I would not be surprised if there’s a certain homogeneity to Auskick across the state and the X may be able to be enrolled in Auskick in two locations.
Essentially, the mother’s case in her affidavit material, is that it is bad luck if the current parenting regime does not work for the father; he can forgo the midweek time and continue to have the boys each alternate weekend. The mother asserts that it was always foreseeable that the children would be entering some sort of formal educational setting this year and X, in particular, would go to school. That is correct. The mother further asserts that the father should have factored the boys’ attendance at school and kindergarten into his arrangements when he was last in Court and the current parenting arrangement was formulated. In short, this is something that the father should have thought about earlier. That is also correct but the same can be said of the mother. That is, she could have raised the transition back to school as a factor to be taken into account. The father appears to have done everything that he could do to spend time with the children on Wednesday evenings overnight, including taking hotel accommodation in Suburb E. Having tried this regime during school term time, he says that it is not workable and seeks an alternative arrangement.
Obviously, the most significant inhibiting factor for ease of the father spending time with the boys is the distance between the mother and the father’s residences. It is recognised that parents have personal freedom of movement but parents must assume responsibility for the consequences of exercising that freedom.
This interim case is, in many ways, emblematic of the long-term difficulties which were identified by the family report writer, Ms B, in the report dated 6 June 2020. Reading from the evaluation section of that report: the children are, in the opinion of the family report writer, clearly impacted by the hostility and poor relationship which the parents have with one another. Ms B identifies, at paragraph [53], that the mother seems to harbour anger and resentment towards Mr Dolby, largely from being required to come back from City C, where she went without permission or consent.
At paragraph [54] of the report, Ms B opines that:
Mr and Ms Dolby have a poor parenting relationship fraught with conflict and a lack of cooperation and good will. Of concern is that the children seem to be aware of the parental discord, evidenced by their concerning statements to each parent which, in turn, is interpreted by the other as deliberate manipulation of the children.
Later in the report – at paragraph [57] – Ms B opines the lack of communication between the parents is a clear message of acrimony and hostility to the children.
In relation to the location of the parties’ residences, the family report writer makes the point at paragraph 66 that:
Ms Dolby’s decision to relocate to City C or Suburb E demonstrates she is not making concessions that give priority to the father/child relationships. Both locations put a geographical distance between the boys and their father; although, naturally, City C is a more significant distance but both present an added level of challenge for Mr Dolby in participating in the children’s daily lives.
It is unfortunate, in my view, that since June 2020, when certain deficits were identified and problems were identified by the expert family report writer, the parents do not seem to have moved on to a more cooperative relationship. A cooperative relationship does not have to be underpinned by massive goodwill or affection or a change of attitude; it just has to be underpinned by a change of behaviour. Sadly, that is not something which has occurred.
Ms Colla, counsel for the wife, submitted that the father has not demonstrated a change of circumstances such as would justify an alteration or variation to the extant interim parenting orders. It is true that this Court generally discourages the changing of interim arrangements because any litigation is disruptive for parents and children. But in this case, the father’s time with the children has become more difficult to exercise than it was previously and the parties are before the Court in any event.
The final hearing is coming up in May 2021 and whatever orders I make today will last for only a short time before I can review them in light of evidence by the parties and the family report writer being tested in cross examination. By the same token, if I do not entertain this further round of interim applications, the family will have to live with the current orders only until May 2021. The test is not which parent should be inconvenienced but what outcome is in the best interests of the children. In this case, I am satisfied that the children’s return to school and kindergarten is a sufficient change of circumstances that the interim arrangement can be productively, constructively and appropriately be altered at this time.
I was not addressed in any detail on the additional considerations set out in section 60CC(3) of the Family Law Act 1975 (Cth) for determining what is in the best interests of the children. These children are young: Y has just turned three and X will be five years old soon. It appears that the children are enjoying time with their father. They are, in any event, rather too young to take into account their views at this point in any determinative sense. [1]
[1] Family Law Act 1975 (Cth) s 60CC(3)(a).
In terms of responsibilities to parenthood, [2] the father has a tendency not to think ahead in seeking relief of the Court; hopefully, that will improve. Of course, the mother could have foreseen the change in circumstance and asked the Court to take into account the progression of the boys to school and kinder after the pandemic restrictions were eased and school re-opened to all children. The mother’s affidavit evidence for today is that, if the current mid-week overnight time does not work for the father, he does not have to take it. It is an attitude which may lack regard for the impact of a reduction in face to face overnight time on the children. That said, today, Ms Colla has been able to get some further instructions which put the mother in a more favourable light in relation to holiday time and there was a concession of some extra days during school term holidays.
[2] Ibid, s 60CC(3)(i).
Both children have a good relationship with both parents. [3] On either application, the mother remains the primary caregiver and the father remains a significant person. I take into account that the children’s relationship with the father was disrupted by the wife’s unilateral relocation of the children to City C. I am not satisfied that the children’s time with the father should, at this interim stage, be restricted more than is necessary for it to be workable.
[3] Ibid, s 60CC(3)(b).
The father has taken all opportunities to see the children under circumstances which have presented challenges including extra financial expense and lack of consistency in accommodation. [4]
[4] Ibid, s 60CC(3)(c).
As I said earlier in these reasons, the most significant inhibiting factor for ease of spending time is the distance between the mother and the father’s residences. [5] There is some irony in the fact that distance between residences looms large on an interim basis when the parents both reside in Victoria when it will be a significant consideration in determining the wife’s application to relocate the children’s residence to City C on a final basis.
[5] Ibid, s 60CC(3)(e).
Having read the affidavit material and listened to the submissions of counsel, I am persuaded that it is in the children’s best interests, between now and the conclusion of the matter but subject to the possibility of making further interim orders at the final hearing in May, for there to be an alteration of time between now and the final hearing.
The children’s interests will be best served by my acceding largely to the application of the father; that is, that the children see him for two out of each three weekends. The parties seem to be in agreement as to times; I ask counsel to draw minutes of orders reflecting these reasons.
In terms of holidays which fall prior to the date for final hearing, the father holiday time with the children between 6 and 11 April – that would be five nights. The mother seeks four nights which Ms Colla submits is in line with the family report writer’s recommendation. The recommendation, as it appears in paragraph [81] of the family report, was for four consecutive nights in 2020 which could be increased to five consecutive nights in 2021. The father had four consecutive nights in September 2020 and during the long summer school vacation of 2020/21 so I construe the family report writer’s opinion as supportive of the father having five nights now. Independently of the family report assessment by Ms B, I am satisfied that holiday time of five nights duration is appropriate for these children. Whereas it might be viewed in isolation as a lot for three-year-old Y, he has the buffer of X who is now five years old and a schoolboy.
RECORDED : NOT TRANSCRIBED
The mother seeks an alteration in FaceTime calls so that they occur at 7 pm on Tuesday and Thursday instead of 4.30 pm on Tuesday and Thursday. It was submitted on behalf of the wife that 7 p.m. better accommodates the wife’s full-time working schedule. Clearly, it would, if the communication was preconditioned on the wife being present with the boys when they communicate with the father. However, it is not necessary for the wife to be with the boys when they speak to the father. Given the conflict between the parties, to which I have earlier referred, and the fact that the children are aware of the conflict, it seems to me appropriate and desirable that the FaceTime communication occur between the children and the father whilst the mother is at work and they are in the care of their maternal grandmother in their home.
RECORDED : NOT TRANSCRIBED
The mother seeks an order that neither parent allow the children to attend church or expose the children to their, or their family members’, religious views without the involvement and prior written permission of the other parent. By involvement it is clarified that the wife seeks prior consultation by way of a conversation, which is fairly obviously taken into account if there is going to be prior written permission.
The evidence in relation to that is scant. The mother’s evidence is that, at paragraph 42 of her affidavit:
I verily believe that the father’s parents have taken the children to church without my knowledge or consent. I would hope that this is a matter that we do not need orders in relation to. That is, I hope that neither parent exposes the children to their religious views without the involvement of the other parent.
The father in his response, which appears at paragraph 33 of his affidavit is:
I have asked the children’s paternal grandparents as to whether they have taken the children to church, after Ms Dolby recently expressed this had occurred. They told me that they had not taken the children to church.
During the course of the hearing, the father informed the Court that his parents are practising Baptists but that he has no religious beliefs to which he would want to expose the children. By way of further particulars, the paternal grandparents do not, for instance, say grace. The father says that the children have not been to church, he will not be taking them to church and he agrees that they should not be exposed to formal religious education. I have suggested that a church fete would not be formal religious activity. But, by the same token, if they can stay away from the fete, that is probably a good thing for all.
The mother nonetheless presses for an injunction directed to the husband. That is curious given the manner in which the wife’s affidavit is expressed, including the words, “I would hope that this is a matter that we do not need orders in relation to.” The father says that it will not occur. It seems that the mother’s hope is fulfilled. There will not be an injunction in the terms sought by Ms Colla.
There was an arrangement in relation to Mother’s Day, whereby the boys would remain with the mother on that weekend, and any weekend time to which the father is entitled would be suspended until the next following weekend. As it turns out, no adjustment is necessary because the father is not due to have the boys on the weekend of Mother’s Day. For consistency, the same approach could be taken for Father’s Day.
In relation to the parents’ birthdays, the mother’s birthday falls on a Saturday this year. It was agreed, or not the subject of opposition, that that weekend, if it was a spend time weekend, the father’s time would be postponed to the next weekend on which he would not otherwise have the boys. The father’s birthday falls on a Monday this year. He sought time on that weekend on the same basis. Going forward, I am not confident that I would make those orders where the parents’ birthdays do not fall on weekends although I might entertain that formula for birthdays that do, henceforth, fall on a weekend.
As best I understand it, that covers all of the matters in respect of which the parties sought orders and which will fall for operation before the final hearing.
I am satisfied that the Order is consistent with the children’s best interests.
RECORDED : NOT TRANSCRIBED
The final hearing dates have been altered so that this matter will commence on 24 May 2021, estimated to take five days.
I thank counsel for preparing minutes of order reflecting these reasons.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 9 April 2021
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