ELLINGWORTH & SIMPSON

[2012] FamCA 264

FAMILY COURT OF AUSTRALIA

ELLINGWORTH & SIMPSON [2012] FamCA 264

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Ellingworth

RESPONDENT: Ms Simpson

FILE NUMBER: SYC 5443 of 2011

DATE DELIVERED: 26 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge, SC

SOLICITOR FOR THE APPLICANT: Taylor & Scott

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

Pending further order:

1. Except as otherwise provided in these orders or by agreement between the parties, the children E born … May 2005 and J born … June 2008 live with the mother.

2. The children spend time with their father as follows:

   2.1.Commencing Tuesday 1 May 2012 and each Tuesday thereafter from the time E finishes school to 6.30pm;

   2.2.Saturday 5 May 2012 from 8.30am to 6.30pm;

   2.3.Sunday 6 May 2012 from 8.30am to 6.30pm;

   2.4.Saturday 19 May 2012 from 8.30am to 6.30pm;

   2.5.Sunday 20 May 2012 from 8.30am to 6.30pm;

   2.6.Saturday 2 June 2012 from 8.30am to Sunday 3 June 2012 at 6.30pm and each alternate weekend thereafter during the same times (from 8.30am Saturday to 6.30pm Sunday);

   2.7.During school holidays, at the conclusion of term 2 2012 (and term 3 if no new order is made) for two periods of two consecutive nights by agreement between the parties but failing agreement such time to commence after school on Friday 29 June 2012 and conclude at 6.30pm Sunday 1 July 2012 and from 8.30am on Wednesday 4 July 2012 to 6.30pm on Friday 6 July 2012 and in the school holidays after term 3, two similar periods to be agreed by the parties and failing agreement at times falling on days in a similar pattern;

   2.8.The times referred to in orders 2.1 and 2.6 are suspended during school holidays.

3. The father not discuss with any person the mother’s mental status or the mother’s lottery win, except with his legal advisers so far as those matters may be relevant to any litigation in which the father is involved.

4. The matter may be relisted on 7 days notice by either party after the interviews scheduled with the family consultant in August 2012.

5. Pursuant to s.65DA(2) and s.62B, the particulars of 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 these particulars are included in these orders. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellingworth & Simpson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5443 of 2011

Mr Ellingworth

Applicant

And

Ms Simpson

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Both parents want different interim orders in relation to the time that E born in May 2005 (aged 7) and J born in June 2008 (aged 3 years and 10 months) spend with their father. A number of supplementary orders sought by each party were not the subject of submissions and I do not intend to deal with them at this point. If either party wishes, they can have liberty to pursue any application I have not dealt with after the further interview with the family consultant.

2. The father seeks that the children spend time with him during school term on a fortnightly cycle on four overnight occasions in that fortnight. In addition, he seeks to see the children on two evenings in that same school fortnightly cycle.

3. At the conclusion of terms 2 and 3 2012 he wishes the children to be with him on five consecutive nights. During the 2012/2013 school holidays, he wishes the children to be with him for two weeks.

4. The mother in her further amended response to an application in a case seeks that for an initial four week period the father see the children on two afternoons and two days (no overnights) a fortnight and then for the arrangement to move to one overnight occasion a fortnight with the father spending each alternate weekend with the children and two mid week afternoons with the children.

5. Ironically there is an issue between the parties as to whether or not mid week the father pick the children up from the time E finishes school (the mother’s proposal) or 4.30pm (the father’s proposal). Ultimately, this will not be an issue, given the orders I intend to make, as the father says he can organise his work commitments to get to E’s school at the completion of the school day on two occasions per fortnight.

6. The parties met in 1998 and began living together in July 2003.  They married in April 2009 and separated on 27 June 2010.

7. The current arrangements are that the children live with their mother and spend time with their father on two afternoons each week; Tuesday after school and Sunday from 1.30pm to 6.30pm.

8. There is some inadequacy in relation to the father’s current sleeping accommodation. I accept the father’s proposal that the children will have bunk beds in the room he currently sleeps in and that he will sleep on the lounge room floor until he is able to obtain more suitable premises to accommodate the children on overnight stays.

9. The father asserts that any staging of the introduction of the children’s time with him on an overnight basis is complex and unnecessary.

10. The father asserts that the mother filed a notice of abuse in which she made serious allegations. The father asserts she no longer wishes to press those allegations and her failure to do so will be ventilated at the final hearing. The father’s position is that that notice of abuse was a device used by the mother with a forensic purpose. The mother rejects that contention and I am unable to assess the relevance or weight that should be put on that notice in the context of this interim hearing.

11. The parties and the children had interviews with a family consultant in February and April 2012.

12. Each party seeks different orders in relation to parental responsibility. Neither party made any submissions in relation to which of the proposals should be preferred (the mother wants sole parental responsibility; the father seeks equal shared parental responsibility). The father has been convicted firstly of assaulting the mother and subsequently of breaching an AVO (although the second conviction is the subject of an appeal). As I understand it, the current AVO concludes in June 2012. The father is currently on a three year good behaviour bond.

13. Consequently there is no presumption of equal shared parental responsibility (see s 61DA(2)(b) Family Law Act). Given that this matter was not actively agitated before me, I do not intend to make any order for parental responsibility one way or the other. If any significant long term issue relating to either child arises, the parties, if they are unable to agree, can reapproach the court.

14. In his interview with the family consultant, the elder child said he wanted to live with his mother but also wants to have sleepovers with his father and the elder child was aware of the mother’s graduated proposal in that regard. It was clear the elder child liked going to spend time with his father. The elder child reported that the younger child also loved going to the father’s home.

15. The family consultant reported that the younger child had a very positive view of her mother, father and brother. Both children were observed to relate warmly and positively to each of their parents.

16. The recommendations made by the family consultant, as they are relevant to these interim proceedings, were that the children would benefit from a clarification of the parenting arrangements regarding the time the children spend with their father. The family consultant also commented that it would be important that the children have a separate bedroom when they stay with their father and that it be set up specifically for them.

17. The family consultant seemed generally favourable to the mother’s more graduated plan. She did however indicate that that plan could be accelerated slightly to reach the final arrangement in a shorter period of time. The primary aim of any plan would be to create clarity around arrangements for the children spending time with their father in the future.

18. Given the level of mistrust between the parents at the current time, I accept the family consultant’s view that it would be helpful to reduce the amount of negotiation around arrangements, by defining times.

19. There have been a number of significant incidents of family violence between the parties. As indicated, the father was convicted of assaulting the mother. As at the date of this hearing the father has been convicted of breaching an AVO by following a car in which the mother was a passenger.

20. Counsel for the mother indicated that the mother was attempting to balance her fears and concerns regarding the father with her conviction that it is important for the children to have an ongoing relationship with their father.

21. The mother’s proposal to the family consultant was that the children spend time with the father each week on Tuesday after school and each alternate Sunday from 1.30pm to 6.30pm (at the time of the interviews with the family consultant there was a supervision requirement which the mother intended to pare back). The mother proposed to the family consultant that the children’s overnight time with their father commence mid June after a graduated increase to that point. The proposal the mother now puts before the court in these interim proceedings slightly accelerates the movement to overnight time with the father after the proposed graduation takes place.

22. The history of family violence in this case is not insignificant and I am generally of the view that the proposal of the mother strikes a balance between matters that I need to consider under s 60CC(2) and (3), so far as I am able to do that in the context of an interim hearing, based on the papers.

23. I conclude that I should adopt the recommendation of the family consultant for there to be a graduated arrangement in relation to the time the children are spending with their father. Initially there shall be an increase in the length of time the children spend with the father during the day (from 5 hours to 10 hours on alternate weekends on two occasions) and then to one overnight occasion a fortnight during school term and two periods of two nights in school holidays. The advantages of that proposal outweigh the father’s desire to move immediately to four nights a fortnight.

24. The father asserts that the mother spends a lot of time out of Sydney and that the children are often left with the maternal grandparents and the maternal uncles. The father indicated that he wished an order be made that in the event the mother is unable to personally spend time with the children, he be given the option of having them with him. The order that he seeks is “That in the event the mother is unable to personally care for the children for any overnight period, then she must first offer the father the opportunity to care for the children in her absence, when they would otherwise be with her”. The mother, in order 25 of her amended response, asks that the whole of the father’s application be dismissed and that the orders that she seeks be made. She does not agree to this order being made. I do not believe that the clarification of the times the children spend with the father, on an interim basis, should be complicated by an order of this kind. It maybe a matter which could be further discussed with the family consultant in August or ventilated at any final hearing.

25. The parties have a further appointment to see the family consultant in August 2012 for an assessment as to how any interim arrangements are working and I will give each party leave to apply for further interim orders if that is necessary.

26. The mother also sought that the father be injuncted from talking to anybody about the mother’s mental status or the mother’s lottery win. The father has indicated that he does not intend to disclose those matters to any person other than those to whom he has already made a disclosure, but does not seem to be prepared to provide an undertaking that has been asked for by the mother. I am prepared to accept, on an interim basis, that it is in the children’s best interests that an order be made that the father not discuss those matters with any other person (except so far as is necessary with his legal advisers in the context of this litigation or any other litigation).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 26 April 2012.

Associate: 

Date:  26.4.12