Fabian and Rathburn
[2011] FMCAfam 171
•8 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FABIAN & RATHBURN | [2011] FMCAfam 171 |
| FAMILY LAW – Child spending equal time with parents – whether in best interests of child to attend two schools – equal time not in best interests of child – substantial and significant time in bests of child, but not reasonably practicable. |
| Family Law Act 1975, ss.60CC, 60CD, 61DA, 65DAA |
| Applicant: | MR FABIAN |
| Respondent: | MS RATHBURN |
| File Number: | MLC 10298 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing date: | 24 February 2011 |
| Date of Last Submission: | 24 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hutchings |
| Solicitors for the Applicant: | Perisic & Thomas Lawyers |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Duane Portway Family Law |
ORDERS
The child [Z] born [in] 2010 live with his father.
BY CONSENT IT IS ORDERED THAT:
[Z] spend time with his mother as follows:-
(a)Each alternate weekend from 5.30pm on Friday to 5.30pm on Sunday commencing Friday 11 March 2011; and
(b)Each Thursday from 5pm to 8pm commencing Thursday 10 March 2011.
Changeovers for the purposes of Order 2 are to occur at Ms F’s house situated at [address omitted], or at another location as agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Fabian & Rathburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10298 of 2010
| MR FABIAN |
Applicant
And
| MS RATHBURN |
Respondent
REASONS FOR JUDGMENT
The parties have five children that are involved in this matter. They are:
·[V] born [in] 1994 (16)
·[W] born [in] 1995 (15)
·[X] born [in] 1998 (13)
·[Y] born [in] 1999 (11)
·[Z] born [in] 2001 (9)
The parties agree that the issues concerning [Y] should be dealt with on a date in six to eight weeks. That hearing is set down for 14 April 2011 at 10am.
The only issue to be dealt with today is ‘with which parent [Z] is to live?’.
The parties agree that [Z] will attend the school nearest to the parent with whom he is to live. The parties agree also that [Z] will spend time with the non-resident parent on alternate weekends from 5.30pm Friday until 5.30pm Sunday, and each Thursday from 5pm to 8pm. It was agreed that changeovers are to occur at Ms F’s house at [address omitted] or another location as agreed.
The competing alternative proposals
The father wants [Z] to live with him in [D], subject to [Z] spending time with the mother as set out above.
The mother wants [Z] to live with her in [S], subject to [Z] spending time with the father as set out above.
The school [Z] is to attend will follow from the decision as to who he is to live with.
It is agreed that although [X] currently lives with her mother, she should be free to choose to move between the parent’s residences.
Agreed or uncontested facts
It is uncontested that the parents live about an hour’s travel from each other; that [X] lives with her mother; that [Y] lives with his mother; that [V] and [W] live with their father; and that [E] lives with her father.
Consideration of s.60CC of the Family Law Act 1975 (the “Act”) factors
Section 60CC(2)(a) – [Z] will benefit from having a meaningful relationship with both of his parents.
Section 60CC(2)(b) – There is no evidence that [Z] has been subjected to physical or psychological harm.
Section 60CC(3)(a) – [Z] wants to continue to spend time with both parents (s.11F memorandum dated 2 February 2011 “11F memo”). [Z] wants to spend more time with [V] and [W] (who live with their father) and “see [Y] at Dad’s but he won’t do that” (the issue of with whom [Y] is to live is to be heard on 18 April 2011). The Court places great weight on [Z]’s desire to spend more time with [V] and [W]. This can best be achieved by [Z] living with his father.
Section 60CC(3)(b) – [Z] appears to have a good relationship with both parents; he wants to continue to spend time with both of them (11F memo p2.7).
Section 60CC(3)(c) – Both parents are willing and able to facilitate and encourage close and continuing relationships between [Z] and the other parent. This is evidenced by the ready agreement by the parents as to [Z] spending time with the other parent. Also, the mother is willing to drive [Z] to [D] each weekend so that he can be involved in the [D] Football Club activities.
Section 60CC(3)(d) – [Z] continuing to live with his father will cause less change to his circumstances than if he lives with his mother; He will be able to be involved with the same football club, the same school and friends, and will have significant time with [V] and [W]. [X] will also be there at times. Those matters are of considerable weight. [Z] wants to continue to live with his father, and this will cause less disruption than if he moves to his mother’s house in [S] and to the school at [M].
Section 60CC(3)(e) – [Z] continuing to live with his father will cause less practical difficulties and expenses compared with living with his mother.
Section 60CC(3)(f) – Both parents and their other siblings have the capacity to provide for [Z]’s needs. There is no evidence to suggest that one parent is better able to provide for his intellectual needs.
Section 60CC(3)(g) – not relevant.
Section 60CC(3)(h) – not relevant.
Section 60CC(3)(i) – Both parents demonstrate a good attitude towards [Z].
Section 60CC(3)(j) – There is no evidence of family violence.
Section 60CC(3)(k) – There is no evidence of family violence orders.
Section 60CC(3)(l) – As [Z] has been living with his father and wants to continue to live with him, and he will have [V] and [W] living with him there, an order that he live with the father is least likely to lead to the institution of further proceedings about him.
Section 60CC(3)(m) – There are no other relevant factors.
Section 60CC(4) – Both parents are attempting to accept their responsibilities as parents .
Section 60CC(4)(a) – Both parents have taken the opportunity to spend time with [Z].
Section 60CC(4)(b)(i) –The mother enrolled [Z] in [M] Primary School without consulting the father, when [Z] was already attending [D] Primary School.
Section 60CC(4A) – [Z] has been living with his father since separation.
Section 60CD
Section 60CD(2)(c) – The Court takes into account the views expressed by [Z] that are included in the s.11F Memo. Although he is only nine years old he is described as a “thoughtful and intelligent boy”. The Court takes into account his wish to continue living with his father and to spend more time with [V] and [W].
Section 61DA
Section 61DA – The Court considers that equal shared parental responsibility is in the best interests of [Z].
Section 65DAA
Section 65DAA(1) – The Court does not consider spending equal time with each parent would be in the best interests of [Z]. This has occurred in the past and resulted in [Z] attending two schools in alternate weeks. Also, spending equal time would remove [Z] from [V] and [W] for half of the time, which is contrary to his wishes. The Court finds that it is not reasonably practicable for [Z] to spend equal time with each parent. If he attends only one school as he should, in every second week he would have one hours travel each way each day.
Section 65DAA(2) – It is in [Z]’s best interests to spend substantial and significant time with each parent.
Section 65DAA(3) – Because of the distance between households it would be difficult for the mother to be involved in [Z]’s daily routine [s.65DAA(3)(b)]. It is therefore not reasonably practicable for [Z] to spend substantial and significant time with his mother as defined in s.65DAA (3) of the Act.
On an interim basis it is agreed between the parties that [Z] will spend every second weekend and Thursday evening with his non-resident parent, being his mother. That is in [Z]’s best interests.
The Court therefore determines that [Z] should continue to live with his father, and spend time with his mother as set out above.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Associate:
Date: 7 March 2011
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