Dunn & Dunn
[2022] FedCFamC1F 29
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dunn & Dunn [2022] FedCFamC1F 29
File number(s): ADC 5380 of 2020 Judgment of: BERMAN J Date of judgment: 1 February 2022 Catchwords: FAMILY LAW – CHILDREN – With whom a child shall spend time with – Interim parenting – Where the children currently live with the mother and spend time with the father – Where the father seeks an increase of his time with the children for the school holiday period – Where the mother opposes the application – Where the mother considers there has not been a change in circumstances since the father’s last application – Where the father considers the mother has concealed information regarding her employment – Best interests of the child – Orders. Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 21 December 2021 Place: Adelaide Counsel for the Applicant: Ms Tinning Solicitor for the Applicant: Clelands Lawyers Adelaide Pty Ltd Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 5380 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUNN
Applicant
AND: MR DUNN
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS:
1.That Order 3 of orders made 22 December 2020 be suspended during the December 2021/January 2022 school holidays.
2.That the father’s time with X born … 2015 and Y born … 2018 (collectively “the children”) as provided for in Order 3 of orders made 22 December 2020 recommence on Friday 4 February 2022.
3.That during the December 2021/January 2022 school holidays the children shall spend time with the father as follows:
(a)Each Wednesday from 10.00 am to 7.30 pm commencing 29 December 2021; and
(b)Each alternate weekend from Friday 2.00 pm to Monday 7.30 pm commencing 29 December 2021.
4.That the father spend time with the children from 3.00 pm on 5 February 2022 to 10.00 am on 6 February 2022.
5.That the parties jointly instruct Ms E or if not available then such other suitably qualified child expert to prepare an updated or addendum report to be distributed on or before 31 March 2022 NOTING THAT if jointly agreed by the parties a report will be ordered pursuant to s 62G(2) of the Family Law Act 1975 (Cth).
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunn & Dunn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Dunn (“the mother”) and Mr Dunn (“the father”) are the parents of X born in 2015 (“X”) and Y born in 2018 (“Y”) (collectively “the children”).
The parties are not able to agree the future parenting arrangements for the children. By orders made on 25 November 2021 all applications for final orders in respect of both parenting issues and property settlement have been adjourned for hearing on 16 May 2022.
By Amended Response to an Amended Application in a Proceeding (“Amended Response”) filed 7 December 2021, the father seeks orders that would extend the children’s time with him during the December 2021/January 2022 school holiday period.
The parties are able to agree that Ms E (formerly Ms C) prepare an updated family assessment report given that Ms E prepared a family report dated 14 June 2021 pursuant to s 62G(2) of the Family Law Act 1975 (Cth). There is some uncertainty as to the availability of Ms E to undertake an updated family report in circumstances where she has left the employment of the Court and may not be accepting private instructions. The parties have been advised that if Ms E is not able to undertake an updated report then subject to the parties not being able to agree an alternative child expert to prepare a family report, provided notice is given in a timely fashion, a report can be prepared by Court Children’s Services prior to the date of final hearing.
Other than noting that the parties appear to have agreed that they will attend mediation on 25 January 2022, the balance of the Amended Response can be dismissed.
CHILDREN’S TIME WITH THE FATHER
On 23 December 2020, orders were made summarised as follows:
(1)That the parties have equal parental responsibility for the children.
(2)That the children live with the wife.
(3)That the children spend time with the husband as follows:
(a)Each Wednesday from the conclusion of school (or if no school then 2.00 pm) until 6.30 pm UPON NOTING that the husband will collect Y from the wife as may be agreed or in default of agreement from the wife immediately prior to the conclusion of school (or if no school then 2.00 pm) on Wednesday;
(b)Each alternate weekend from the conclusion of school on Friday (or if no school then 2.00 pm) to Sunday at 5.00 pm.
The father seeks to suspend the interim orders during the December 2021/January 2022 school holidays and for the following orders to apply;
(1)Each Wednesday from 8.00 am to Thursday at 7.30 pm.
(2)Each alternate weekend from Friday at 2.00 pm to Monday at 7.30 pm.
Any extension to the current interim orders is opposed by the mother. The father’s application is supported by his Affidavit filed 7 December 2021. It is not in dispute that the father has sought to extend his time with the children. In opposing the father’s application, the mother highlights that there have been two attempts by the father to increase his time with the children but without success. The import of submissions put by counsel on behalf of the mother is that there has not been any change in the circumstances, that a careful reading of the family report would provide no basis for any extension of time and that the father’s various applications have an ulterior purpose namely, to exhaust the mother’s ability to continue to fund the litigation.
For his part, the father alleges that the mother has engaged in a deliberate concealment of evidence in respect of her employment circumstances and that criminal proceedings have been pursued by the mother, resulting in a charge being laid for an alleged assault on 14 December 2019.
The mother’s counsel promotes a preliminary argument that the father’s contentions in respect of the mother’s alleged non-disclosure have little or no nexus with parenting considerations and therefore would not provide a basis for the Court to revisit the interim arrangements. Without more, there is considerable force in that submission.
Whilst it might seem that the mother’s current employment would be a relevant consideration in circumstances where other arrangements for the children’s care and supervision are made necessary by her work obligations, there is a dispute as to the extent to which the mother’s employment obligations require her to leave the home. The matter is not capable of determination but on the mother’s case, she indicates that she has considerable flexibility assisted by her ability to work from home.
The relevance of the criminal proceedings are even more nebulous. Whatever might have been the mother’s position as to whether she would pursue the laying of a criminal charge against the father or his understanding as to whether criminal proceedings were to be pursued is significantly off point. It is not the status or eventual outcome of any criminal proceedings alleging assault that is relevant but rather the circumstances that underpin any alleged assault. Family violence is always a factor to be considered and if established then it is afforded significant weight.
At present, the mother has alleged that there was an incident in December 2019 whereas the allegation is strongly denied by the father.
By reference to the father’s affidavit, he asserts that the children are happy and settled when in his care. To the extent that there was some initial concern that Y would experience separation anxiety, the father asserts that has not been his observation. He considers that the children very much enjoy their time with him.
It also appears that the father’s mother and stepfather have a good relationship with the children. It is reasonable to find that before the parties separated each of the parties’ parents were involved in assisting with the care of the children.
The significant difference is that the father seeks time over the Christmas school holidays when X and to a lesser extent Y are relieved of school and early learning involvement. Simply put, there is more time available to the father to spend with the children.
The circumstances of the mother in terms of her employment are irrelevant. Any parenting order requires that it be based upon the best interests of the children. The father considers that a modest increase in time during the school holidays will help cement and establish the relationship that already exists with the children and that it is a logical and reasonable extension of his time given the interim orders have been in place one year and the children have developed cognitively during that period.
THE FAMILY REPORT
Each of the parties place reliance on aspects of the family report that they consider assists their application.
The family consultant interviewed the parties and the children in May 2021. Six months have passed since the family consultant made the following recommendations:
(1)That the children spend time with their father each Wednesday and for X to spend the overnight with her father, but for Y from 3.30 pm to 7.00 pm on the Wednesday.
(2)The children spend time with their father each alternate weekend from Friday night 5.00 pm to Sunday 5.00 pm.
The observations of the father with the children were observed to be “business like” and with the suggestion that the father may favour X over Y. The family consultant considered that the father had enough knowledge to know what should be done with the children.
Whilst the family consultant considered that the conflict between the parties was too high to contemplate orders sought by the father that the care of the children be shared, the recommendations provided a foundation for orders to be made that provided the father with three periods of contact with the children in each fortnight, including two overnight periods.
The father seeks to increase that time to five overnight periods.
APPLICATION OF PARENTING PRINCIPLES
I do not propose to repeat the applicable principles in respect of interim parenting orders. Those matters have been set out in earlier judgments.
It is important that the children have an ability to establish and maintain a meaningful relationship with each of the parties. There is no doubt as to the strong emotional attachment between the mother and the children. The contention of the mother is that the children do not necessarily have a strong attachment to the father and that the observations of the family consultant support a finding that there is a parenting deficiency in terms of the father’s relationship with the children.
The uncertainty expressed by the family consultant in June 2021 should be considered against the litmus test of the last six months.
At its highest, the mother observes that Y is clingy when he returns home but it is not suggested that the children display overt distress or are overly anxious. To the extent that the mother would suggest that the children are not keen to spend time with the father, similarly the father’s contention is that the children do not want to leave his care and have taken active steps to ask the mother whether they can spend more time with him. I am not able to divine and determine the accuracy of the position adopted by the mother or the father.
In circumstances where the interim orders have been in place for one year, there is a family report which provides a reasonable basis for overnight time and the advent of school holidays with the children now a year older, this would invite a consideration of whether there should be an extension of time.
There is no magic about overnight time. There is no evidence that a child will be at greater or lesser risk if remaining with a parent overnight than if the time is restricted to day access only.
I propose to extend the father’s time each alternate weekend to the following Monday evening. The school holidays represent a good opportunity for the children to spend more time with the father in circumstances where the normal day to day rigor of school and other curricular activities to which X is involved is significantly lessened during holidays.
The children are developmentally one year older.
I have considered the father’s application for an extension of time on each Wednesday. I do not consider that it is warranted. I am conscious that on each alternate week, if orders sought by the father were granted, the children would be with the father from Wednesday morning to Thursday evening, would return to the mother’s care until 2.00 pm on Friday when they would then return to the father’s care.
The proximity of each Wednesday and the alternate week promoted by the father may well be a stressor on the children. I do not doubt that the father would wish to spend as much time with the children as possible, but in the current circumstances my focus must be on how the children will cope with the separate proposals of the parties not how the parties will react to orders that might be made.
The father acknowledges that whilst there is no admission by him that a cautious approach is required, he does not seek that the Court be more robust in its consideration of the interim arrangements.
I propose therefore to increase the father’s time on each Wednesday, enabling the children to be returned to the mother in preparation for the alternate weekend time with the father.
CONCLUSION
I regard a modest extension to the children’s time with the father to be in their best interests. It is unlikely to cause or exacerbate any distress or anxiety that the children might have in terms of being separated from the mother. It enhances the opportunity the father has to be more responsive to the children and to put in place what he says are the skills that he learnt from his parenting course.
Irrespective of that aspect, it appears that the children’s time with the father has been largely uneventful. What is sought by the father is modest and whilst it is difficult to find any jurisprudential basis to either support or oppose a modest increase in the father’s time with the children, a more practical and pragmatic approach would be to support a modest increase in the father’s time during the Christmas school holidays. The suspended interim orders are enlivened after the conclusion of the holiday period.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 February 2022
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