Dunn & Dunn (No 5)
[2022] FedCFamC1F 509
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dunn & Dunn (No 5) [2022] FedCFamC1F 509
File number(s): ADC 5380 of 2020 Judgment of: BERMAN J Date of judgment: 18 July 2022 Catchwords: FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the current orders provide for the children to live with the mother and spend time with the father – Where the father seeks an increase of time – Where the parties have competing applications for parenting orders – Where the final hearing is soon approaching – Where the mother concedes that there should be a modest increase in the father’s time pending the final determination – Where the Court orders an increase in the father’s time with the children on an interim basis before final hearing Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3), 61DB Cases cited: Marvel & Marvel [2010] FamCAFC 101 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 3 June 2022 Place: Heard in Melbourne, delivered in Adelaide Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person 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:
8 JUNE 2022
IT IS ORDERED UNTIL FURTHER ORDER:
1.That orders made 23 December 2020 be discharged.
2.That the parties have equal shared parental responsibility for X born 2015 (“X”) and Y born 2018 (“Y”) (collectively “the children”).
3.That the children live with the wife.
4.That the children spend time with the husband as follows:-
(a)Each Wednesday from the conclusion of school (or if no school then 2.00pm) until 7.30pm 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 2.00pm) on Wednesday;
(b)Each alternate weekend from the conclusion of school on Friday (or if no school then 2.00pm) to the commencement of school on the following Monday, commencing 10 June 2022;
(c)From the conclusion of school (or if no school then 2.00pm) on Friday 8 July 2022 to 5.00pm on Tuesday 11 July 2022;
(d)Order 4(a) to be suspended during the July 2022 school holidays.
5.That unless otherwise agreed handover shall occur at the McDonald’s Restaurant, K Street, Suburb L.
6.That the parties are restrained and an injunction be granted restraining each of them from:-
(a)communicating with each other, other than by text message to be limited to five (5) communications by each of them per day;
(b)denigrating each other in the presence of the children;
(c)attending at or within 100 metres of each of their separate residences or places of employment.
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 unable to agree the ongoing parenting arrangements in respect of X born 2015 (“X”) and Y born 2018 (“Y”) (collectively “the children”).
The parties’ applications relating to final parenting orders, have been listed for trial to commence on 1 August 2022. The parties now appear as self-represented litigants.
Orders were made on 23 December 2020, which provided for the following:
(1)That the parties have equal shared 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, commencing 1 January 2021.
The interim orders were suspended during the December 2021/January 2022 school holidays.
It is not controversial that the father has sought to extend the time that the children spend in his care, and the mother has historically opposed any significant extension of the father’s time with the children.
On 16 May 2022, orders were made to vacate the final hearing that was listed to commence that day and to adjourn the father’s oral application for an extension of time in respect of the current parenting orders, to 3 June 2022. Trial direction orders were made and the matter was set down for trial to commence on 1 August 2022.
On 3 June 2022, the father’s oral application was made and orders were made that judgment be reserved.
Given the relatively short time frame between the reservation of judgment on 3 June 2022, and the upcoming trial date on 1 August 2022, in the absence of reasons being delivered, the following interim orders were made on 8 June 2022:
(1)That orders made 23 December 2022 be discharged.
(2)That the parties have equal shared parental responsibility for the children.
(3)That the children live with the mother.
(4)That the children spend time with the father as follows:
(a)Each Wednesday from the conclusion of school (or if no school then 2.00pm) until 7.30pm UPON NOTING that the father 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 2.00pm) on Wednesday;
(b)Each alternate weekend from the conclusion of school on Friday (or if no school then 2.00pm) to the commencement of school on the following Monday, commencing 10 June 2022;
(c)From the conclusion of school (or if no school then 2.00pm) on Friday 8 July 2022 to 5.00pm on Tuesday 11 July 2022;
(d)Order 4(a) be suspended during the July 2022 school holidays.
(5)That unless otherwise agreed handover shall occur at the McDonalds Restaurant, K Street, Suburb L.
(6)That the parties are restrained from:-
(a)communicating with each other, other than by text message to be limited to five (5) communications by each of them per day;
(b)denigrating each other in the presence of the children;
(c)attending at or within 100 metres of each of their separate residences or places of employment.
These reasons provide the basis for the orders made.
interim parenting
In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
Application of parenting principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations as set out in s 60CC(2) of the Act, s 60CC(2A) of the Act sets out that the Court is to give greater weight to the consideration set out in paragraph (2)(b).
The Court must also take into account the additional considerations as set out in s 60CC(3) of the Act.
the father’s application
The orders sought by the father were as set out in a draft minute of order. The father sought that his time with the children each alternate weekend be increased from Sunday at 5.00 pm, to Monday at 2.00 pm (or the conclusion of school for X if a school day).
The father also sought an increase of his time each Wednesday from 6.30 pm to 7.30 pm, commencing 1 June 2022, and an increase of his time on the intervening Wednesday through to Thursday morning, commencing 8 June 2022.
The father sought that handovers of Y occur at X’s school, and if not school, then at a McDonald’s Restaurant, unless otherwise agreed.
the mother’s response
The mother’s response sought to resolve all outstanding differences between the parties pursuant to a draft minute of order which, if made, would represent final orders.
The broad thrust of the mother’s response was to concede the following:
(1)That the parties have equal shared parental responsibility.
(2)That the children live with the mother.
(3)That the children spend time with the father:
(a)Each alternate Friday from the conclusion of school and kindergarten (or 3.00 pm if not a school or kindergarten day) until the commencement of school and kindergarten the following Monday (or 10.00 am if not a school or kindergarten day);
(b)From 8 June 2022, until the commencement of term 1 2026, each Wednesday from the conclusion of school and kindergarten (or 2.00 pm if not a school or kindergarten day) until 7.30 pm.
The mother proposed that there be a gradual increase in the time the children spend with the father such that, commencing term 1 2024, the children spend time with the father each alternate Thursday from the conclusion of school (or 3.00 pm if no school) to the commencement of school the following Monday (or 3.00 pm if no school), and that as, and from, term 1 2026, the children spend time with the father each alternate Thursday from the conclusion of school (or 3.00 pm if no school) to the commencement of school the following Tuesday.
Whilst the orders sought by the mother were comprehensive in their scope, they were not relevant to a determination of the interim oral application.
conclusion
It is apparent that the parties are in broad agreement that there should be a modest increase in the father’s time pending the final determination of their competing applications for parenting orders.
The mother was prepared to properly concede that the father’s time should be extended on each alternate weekend to conclude on Monday morning and that a modest increase of one hour on Wednesday night was appropriate.
There was no agreement as to the further proposal of the father namely, that each alternate Wednesday the time should extend from 7.30 pm until Thursday morning.
The basis of the father’s application is that an extension of time would enable him to engage more comprehensively with the children and in particular, their preparation for school and kindergarten.
The orders made 8 June 2022, positively promote the children’s relationship with the father and accordingly, are in their best interests.
It is notable, that in a broad sense, the mother agrees that the children will benefit from a modest increase in time with the father.
There is also the added advantage of reducing the occasions that the parties need to meet in order to effect handover.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 18 July 2022
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