Farrelly & Farrelly
[2021] FCCA 1083
•13 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Farrelly & Farrelly [2021] FCCA 1083
File number(s): SYC 8277 of 2020 Judgment of: JUDGE MORLEY Date of judgment: 13 May 2021 Catchwords: FAMILY LAW – parenting – interim parenting – where Court invites submissions on a parenting proposal outside the contemplation of the parties’ applications – status quo where the children live with their father and spend five nights per fortnight with their mother – status quo where children currently spend no full weekend with their mother during the school term – where mother seeks the children live with her and spend five nights a fortnight with their father – where father seeks the children live with him and spend five nights a fortnight with their mother – where Court invites submissions on the children living with each parent on a week-about basis – where mother supports week-about proposal – where father opposes week-about proposal – where Court applies the presumption of equal shared parental responsibility in section 61DA – where Court finds that equal time is in the children’s best interests – where Court finds that equal time is reasonably practicable.
FAMILY LAW – parenting – interim parenting – dispute as to live with/spend time with arrangements for three children – where the central issue in dispute relates to religious practices of each parent – where mother practices Judaism – where father practices modern orthodox Judaism being a more observant form of Judaism than the mother – where mother seeks to spend more time with the children and to not practice the father’s form of Judaism with the children when the children are with her – where the father’s application is that the children are raised as “Modern Orthodox Jews” – where father opposes the children being raised by the mother in her form of Judaism – where father seeks to limit the time to be spent by the children with their mother on Shabbat and Jewish holidays – where Court applies the presumption of equal shared parental responsibility in section 61DA – where Court makes orders for equal time with each parent – where Court finds it to be in the children’s best interests to make orders for the children to spend time with their parents on Jewish holidays on a two yearly cycle.
Legislation: Family Law Act 1975 (Cth) Cases cited: Goode & Goode [2006] FamCA 1346
Grella & Jamieson [2017] FamCAFC 21
In Re J [2005] UKHL 40
Marvel & Marvel (2010) 240 FLR 367
MRR v GR [2010] HCA 240
N & N (1981) FLC 911-111
Pavli & Beffa (2013) 48 FamCA 144
Re G (Children) (Religious Upbringing: Education) [2012] EWCA Civ 1233
Number of paragraphs: 164 Date of last submission/s: 12 May 2021 Date of hearing: 21 April 2021 Place: Sydney Counsel for the applicant: Mr Tockar Solicitors for the applicant: Messenger Family Law Counsel for the respondent: Ms Dart Solicitors for the respondent: Family Law Group Pty Ltd ORDERS
SYC 8277 of 2020 BETWEEN: MS FARRELLY
Applicant
AND: MR FARRELLY
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
13 MAY 2021
PENDING FURTHER ORDERS, THE COURT ORDERS:
1.That the parents have equal shared parental responsibility for their children X born in 2012, Y born in 2014, and Z born in 2016 (‘the children’).
2.That during the school term and the school holidays at the end of terms 1, 2, and 3, the children spend equal time with each of their parents on a week about basis with changeovers occurring on Friday at the end of school, commencing with the children being in their Mother’s care from the end of school on Friday 14 May 2021.
3.That the children spend equal time with each of their parents during the school holidays at the end of term 4 by being in the care of their Mother for the first half of such school holidays that commence in an even numbered year and for the second half of such school holidays that commence in an odd numbered year, and by being in the care of the Father for the first half of school holidays that commence in an odd numbered year and for the second half of such school holidays that commence in an even numbered year.
4.That order 2 is suspended during the school holidays at the end of term 4 each year and shall recommence at 3:00PM on the last Friday of those school holidays with the children being in their Mother’s care from the Friday when that Friday occurs in an odd numbered year and being in their Father’s care from that Friday when that Friday occurs in an even numbered year.
5.That notwithstanding any other order, during Jewish holidays and festivals, the children shall be:
(a)In their Father’s care in 2021 and thereafter in each odd numbered year and in their Mother’s care in 2022 and thereafter in each even-numbered year:
(i)For the first four days of Passover;
(ii)For the first four days of Sukkot and Simchat Torah;
(iii)For two days on Shavuot;
(iv)For the first four days of Channukah; and
(v)For one day on Yom Kippur; and
(b)In their Mother’s care in 2021 and thereafter each odd numbered year and in this Father’s care in 2022 and thereafter each even numbered year:
(i)For the second four days of Passover;
(ii)For the second four days of Sukkot and Simchat Torah;
(iii)For the two days on Rosh Hashannah;
(iv)For the second four days of Channukah; and
(v)For one day on Purim,
and for the purpose of this order, each such Jewish holiday shall commence one hour before sunset on the eve of the holiday and shall end one hour after sunset on the changeover day.
6.That for the purpose of order 3, the school holidays at the end of term 4 commences at the end of the children’s school attendance for the year and concludes at 3:00PM on the last Friday before the child’s school attendance resumes for the new school year.
7.That in the event the children’s birthdays fall during the children’s time with the father, the children’s time with the father shall be suspended for a period of not less than 3 hours to allow the children to celebrate their birthday with their mother with a lunch or dinner.
8.That in the event the children’s birthdays fall during the children’s time with the mother, the children’s time with the mother shall be suspended for a period of not less than 3 hours to allow the children to celebrate their birthday with their father with a lunch or dinner.
9.That in the event Father’s Day falls during the children’s time with their Mother, the children’s time with the mother shall be suspended from 9:00AM to 5:00PM for that day.
10.That in the event Mother’s Day falls during the children’s time with the Father, the children’s time with the father shall be suspended from 9:00AM to 5:00PM for that day.
11.That notwithstanding any other order except order 5 in relation to Jewish holidays:
(a)The children shall be in their Father’s care on the Father’s birthday from 9:00AM until 5:00PM if it is a non-school day, and from after school until 7:00PM if it is a school day;
(b)The children shall be in their Mother’s care on the Mother’s birthday from 9:00AM until 5:00PM if it is a non-school day and from after school until 7:00PM if it is a school day.
12.Each of the parties is restrained making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or within the hearing of any of the children.
13.Each of the parties is restrained from allowing any of the children to remain in the presence of or within any of the children’s hearing of any other person making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
14.That the Mother is restrained from allowing the children to eat any shellfish or pork-based products without the children’s Father’s consent.
15.That the children shall have telephone, Skype, or other telephone/video communication with the parent who does not have care of them on each Monday and Wednesday at some time between 5:30PM and 6:30PM and at all other times when such communication is requested by any of the children.
16.That any changeovers that do not take place at the children’s school shall take place by the parent into whose care the children are passing collecting the children from the home of the parent whose care the children are leaving.
17.The Mother and Father shall keep each other informed at all times of their residential addresses, email addresses and contact telephone numbers and shall advise the other of any change within seven days of such change.
18.Neither parent is precluded from attending any school functions, or school activities or extra- curricular activities involving the children in the event that such function or activity occurs at a time when the children is living or spending time with the other parent.
19.Each parent will provide such consents and authorities as may be required:
(a)By any school attended by the children to enable both the Applicant Mother and the Respondent Father to receive reports, notices and correspondence relating to the children and to permit both parents to attend special events or other school activities involving the children and to speak to the children’s teachers concerning the performance of the children at school; and
(b)By any hospital, medical practitioner or health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to the child’s health, welfare and treatment.
20.Each parent shall as soon as practicable contact the other parent to advise in the event that the children:
(a)Become seriously ill;
(b)Is hospitalised; or
(c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission into hospital.
21.That in relation to these interim proceedings, each party pay his or her own costs.
THE COURT FURTHER ORDERS THAT:
22.The proceedings are listed for Call-Over on a date and at a time to be advised.
23.The proceedings are listed for further mention and directions at 10:00AM on 2 August 2021 for further consideration of the matter inclusive of matters relating to the appointment of an expert or family consultant.
THE COURT NOTES THAT:
24.The matter has been given an administrative listing of 3 December 2021 at 9:00AM. This is a listing for ease of administration, and the matter will be relisted from this date and time to another date and time in 2022. Appearances are not required, nor will be taken on the December date.
25.In the event that the parties reach consensus in relation to the preparation of a Family Report or an Expert’s Report, the parties are at liberty to approach a consent minute to my Chambers for consideration in Chambers.
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 under the pseudonym Farrelly & Farrelly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
These are the settled written Reasons for Judgment delivered verbally and ex tempore on 13 May 2021.
These Reasons come from an interim hearing occurring on 21 April 2021 in parenting proceedings between Ms Farrelly as the applicant mother (‘the mother’) and Mr Farrelly as the respondent father (‘the father’).
These are also short-form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’), being in relation to interim parenting matters. The proceedings concern parenting issues for the parties’ children X born in 2012, who was nine years of age at the time of the hearing, Y born in 2014, who was six years of age at the time of the hearing, and Z born in 2016, who was four years of age at the time of the interim hearing (‘the children’ or ‘the girls’).
By way of background, the parties commenced their cohabitation at the time of their marriage in 2007 and separated on 5 April 2019. The mother moved out of the matrimonial home on 7 April 2019. Proceedings were commenced by the mother filing her Initiating Application on 27 November 2020 and the father responded by filing his Response on 15 February 2021.
The matter came before the Court for a first mention on 22 February 2021, at which time it was set down for the interim hearing on 21 April 2021 and orders for preparation for the interim hearing were made.
The interim hearing proceeded on 21 April 2021 and I subsequently set the matter down for delivery of a reserved judgment on 4 May 2021 at 4:00PM, but subsequently, during my consideration of the matter, I considered that there was a parenting order that was within my contemplation as perhaps an order proper to be made with the welfare of the children as the paramount consideration that was outside the ambit of the competing proposals of the parties. That proposal was in relation to the children being in the equal care of their parents on a week about basis, and accordingly, and in compliance with authority, instead of delivering Reasons and making orders on 4 May 2021, I indicated to the parties that that was an outcome that was in contemplation of the Court as a possible resolution, and I invited written submissions from the parties, both in relation to that proposal voiced by the Court and also further written submissions from the parties in relation to the care of the children during religious holidays.
A central element in this parenting matter is that the children are of Jewish heritage, their father being of Jewish heritage and their mother having converted to the Jewish faith, and the children have been brought up in the Jewish faith.
MATERIAL RELIED UPON
At the interim hearing, the mother relied on the following documents:
(a)The case outline document prepared on her behalf by her counsel, Mr Tockar;
(b)Supplementary written submissions prepared once again by her counsel, Mr Tockar, pursuant to the invitation the Court made on 4 May 2021;
(c)Her Initiating Application filed 27 November 2020;
(d)Her Notice of Risk filed 27 November 2020;
(e)Her affidavit sworn 1 April and filed 7 April 2021;
(f)The affidavit of Mr B sworn 18 December 2020 and filed that day, Mr B being the partner of the mother; and
(g)The affidavit of Ms C affirmed 22 December 2020, Ms C giving evidence that she is a friend of both the father and the mother.
On interim hearing, the father relied on the following documents:
(a)His case outline document prepared by his counsel, Ms Dart;
(b)The further written submissions provided at the invitation of the Court, also prepared by Ms Dart;
(c)His Response filed 15 February 2021;
(d)His Notice of Child Abuse, Family Violence or Risk filed 15 February 2021; and
(e)His affidavit sworn 7 April 2021.
During the hearing, a printout of the definition of the word ‘frum’ from the Oxford English Dictionary was admitted into evidence and marked as exhibit 1 and the tender bundle prepared on behalf of the applicant mother was tendered, admitted to evidence, and marked as exhibit 2.
Before I go to the competing proposals of the parties, I will just indicate that in the Notice of Risk filed by the mother with her originating documents, she asserts that there is a risk arising from allegations of family violence and she refers therein to the father having exercised coercive control in the past and continuing to do so in relation to the time the children spend with the mother. She also refers to the father, on occasions, becoming angry and shouting at the mother in the presence of the children, which, of itself, does not come within the definition of family violence unless there is a further element to it.[1]
[1] Family Law Act 1975 (Cth) s 4AB.
She also asserts risk to the children in consequence of a serious parental incapacity on the part of the father, and that the children are otherwise at risk, and in giving particulars for the asserted other risks, she commences by saying, “Although I do not believe the children are at risk”. She then goes on to speak of matters relating to the father’s consumption of alcohol, and the father prioritising his religious views over “the needs of the children”.
In the Notice of Child Abuse, Family Violence, or Risk filed by the father, he does not assert any risk element.
THE COMPETING PROPOSALS OF THE PARTIES
The competing proposals of the parties are as follows.
The mother’s orders are as set out in her Initiating Application in which she seeks interim orders which I will summarise briefly as follows (it being a summary thereof, as these are Reasons under section 69ZL of the Act):
(a)She seeks that the parties have equal, shared parental responsibility for making long-term decisions for the children in relation to their health and their names, and any change to living arrangements that make it significantly more difficult for the children to spend time with their parents, but she seeks to have an order made that she have sole parental responsibility relating to long-term decisions affecting the children’s education, including, but not limited to, enrolments at preschools, schools, school activities, extracurricular activities, though she is to consult the father about those issues, and in relation to the children’s religion and cultural upbringing, provided they are brought up in the Jewish faith;
(b)She seeks an order that the children live with her;
(c)She seeks an order that each parent have sole responsibility for decisions relating to the children’s care, welfare, and development on a day-to-day basis - such an order not being necessary at all since the amendments to the Act made in 2006, pursuant to section 65DAE of the Act;
(d)She then sets out the time she seeks that the children spend with their father, being in a fortnightly pattern in week 1 from 9:00AM on Thursday until 9:00AM on Friday, and in week 2 from 9:00AM on Thursday until 9:00AM on Monday;
(e)She seeks the parties have one half the school holidays each, as agreed, and if they do not agree, the father to have the second half;
(f)The father to have time with the children on Father’s Day, and similarly the mother on Mother’s Day;
(g)That they each be able to spend time with the children as she defines in her orders on the parents’ birthdays and the children’s birthdays;
(h)In relation to the question of Jewish holidays through the year, in her Initiating Application she set out one proposal, but she amended that proposal in her supplementary written submissions so as to provide, on base, that the Jewish holidays for the children are shared on an equal basis on a two-yearly cycle, some of those holidays being divisible between the parties each year, but some of those holidays having to be reserved to one parent in one year, the other parent in the other year;
(i)She seeks an order that the children have unlimited Skype and telephone/video contract with the parent when they are in the other parent’s care;
(j)She seeks that any changeovers that do not occur at school occur by the father collecting the children from the mother’s home and returning them to the mother’s home at the end of time;
(k)She seeks the usual orders in relation to the parties keeping each other informed about contact information, addresses, email addresses, telephone numbers, and so forth;
(l)She seeks an order that both parents, in effect, can attend any school function, school activity, or extracurricular activity involving the children to which parents would normally be invited or attend;
(m)She seeks an order that the parents have equal opportunity to have all school information about the children or medical information about the children, that each parent keep the other advised of any medical matter affecting the children; and
(n)She seeks that the father pay her costs.
The orders sought by the father are set out in his case outline document prepared by his counsel, Ms Dart. Once again, summarising those:
(a)He seeks that the children live with their father, and that they spend time with their mother as agreed, but failing agreement, on a fortnightly basis, in week 1 from 9:00AM on Sunday to 9:00AM on Tuesday, and in week 2 from 9:00AM on Sunday to 9:00AM on Wednesday;
(b)He seeks that during school holidays, the parents share care of the children for half the school holidays each, and he refers to “half of all gazetted school holiday periods”. I pointed out to the parties during the hearing that including the word “gazetted” means that school holidays start on the Monday after school breaks up, and they finish on the Friday before school goes back;
(c)He seeks orders so that each of the parties can share in special events with the children, being their birthdays, Father’s Day, Mother’s Day;
(d)In relation to Jewish holidays and festivals, he seeks orders that would place the children in his care during Jewish holidays and festivals, with any time lost by the mother in consequence of the children being in the father’s care for the times he specifies being dealt with in this way: “That make-up time shall be afforded to the mother for time suspended in accordance with order 4.”;
(e)He proposes that any changeovers that do not occur at school or preschool occur by the mother collecting the children from the father’s residence at the start of her time, and the father collecting the children from the mother’s residence at the end of her time;
(f)The father seeks the usual non-denigration sort of order, and he seeks orders in relation to parents dealing decently and in a courteous and non-abusive manner with each other;
(g)He also seeks an order that the mother pay his costs of these proceedings on the indemnity basis.
At the interim hearing, the mother was represented by Mr Tockar of Counsel. The father was represented by Ms Dart of Counsel. Mr Tockar made oral submissions on behalf of the mother in addition to the written submissions that he set out in his case outline document, and similarly, Ms Dart made oral submissions in addition to her written submissions in her case outline document. At the end of Ms Dart’s submissions, Mr Tockar made short submissions in reply.
As these are section 69ZL short form Reasons, I say that I have read, carefully considered, and taken into account all of the material relied upon by each of the parties, including all of the material contained in exhibit 1 and exhibit 2.
In relation to exhibit 1, that gives a definition of the word ‘frum’ as that is a word, on the evidence, going to the religious and cultural surrounds of the manner in which the father, in observance of his Jewish faith, lives and in which, he asserts in his evidence, the children have been brought up to this time, and the manner in which he seeks to bring them up from here on.
That definition is “Devoutly observant of Jewish laws; strictly Orthodox or religious.”
I find on the basis of all of the evidence presented to me by the parties that though that word is used in the course of the evidence in the manner describing how the father brings the children up, it would seem that his manner of bringing the children up is not “devoutly observant of Jewish laws, strictly Orthodox or religious”, as he follows a particular manner, or a particular form of the Jewish religion, which I will get to when I go to into his evidence. It would seem, on consideration of the evidence, that that manner is by no means as observant of Jewish law and strictly Orthodox or religious as may perhaps occur in other sects of Jewish religion, and I use that word ‘sects’ without meaning any offence whatsoever.
In looking at the evidence presented by each of the parties, once again, I only go to specific matters to mention in these oral reasons by reason of these being section 69ZL Reasons. That does not derogate from me having carefully considered the entirety of the evidence relied upon by each party, including carefully considering the annexures to their affidavits and the material in exhibit 2, the tender bundle presented on behalf of the mother.
Looking at the mother’s evidence first, in her affidavit of 1 April 2021, she deposes, as I have already said, that the parties began their cohabitation at the time of their marriage. They separated on 5 April 2019 and she left the family home in Suburb D Sydney on 7 April 2019. She re-partnered in mid-2020 with Mr B, who is on affidavit and whom she met in 2019 and they have lived together since 2020.
The mother says that from the time of the separation in April 2019 until 30 January 2020, the girls spent time between their parents in a fortnightly pattern – the whole weekend from Friday to Monday with the mother, and then the next weekend from Saturday to Monday with the mother, and that the parents shared the Jewish holidays with the children.
She says that from 30 January 2020 to 8 October 2020, the girls spent six nights per fortnight with her, being every weekend from Saturday night to Tuesday morning but not including any entire weekend during the school term or any of the Jewish holidays. She says from 8 October 2020, the time she spent with the children was, she says, unilaterally reduced by the father to five nights a fortnight, being 9:00AM on Sunday to Wednesday in week 1, and 9:00AM on Sunday to Tuesday morning in week 2. Once again, this was with no full weekends during school term and no Jewish holidays.
She then says that the school holiday time she was allowed by the father to have with the girls since April 2019 was six weeks in December 2019/January 2020, a few days in October 2020 school holidays and three and a half weeks in December 2020/January 2021 holidays. She notes that there was an agreement between the parties for her to spend time with the children from 4 to 13 April 2021 in the then upcoming end of first term holidays.
She says in paragraph 6 that she and the father lived an Orthodox Jewish lifestyle. From 2010 to 2014 they lived in New York and the father was studying religious studies. The mother says she was the breadwinner for the family whilst the father was studying. From 2014 to January 2018 the family lived in Canberra. The mother says during that time she was at home caring for the children from 2014 until May 2018 when the father worked as a community leader which she indicates generally meant working six days a week including Saturday and Sunday. She went back to work in 2018. She asserts that she was the children’s primary carer throughout cohabitation and that she was the primary homemaker for the family.
She asserts in paragraph 7 that “Throughout our relationship Mr Farrelly was very controlling towards me and at times abusive.” She asserts the father apologised in 2015 by saying “I’m sorry I have been abusive.”
She says that at times, especially after the father had consumed some alcohol, he would get angry and shout at her. She says on occasions he threw her clothes out of the cupboard and pulled the bedding off her bed. She says that as the father was a public figure in the Jewish community, she was concerned that his standing would be damaged should she complain to anyone of his behaviours.
She says that the father controlled the family’s finances, that statement of itself not amounting alone to coercive and controlling conduct.
The mother says that on 13 May 2019, shortly after their separation, she sent an email to the father as follows:
Also, we need to talk about the division of the children. I would like to move to equal shared custody. I think if we each had a week and then switched over at a set day of the week then it would be less chaotic for the kids. I’m thinking that a Thursday morning for switchover would work well for me. Let me know if you think there is a better day and we can work out the logistics together.
She says that the father’s response concentrated more on financial consequences and that he indicated that he wanted to speak to the Centrelink authorities before making a considered response.
The mother gives evidence that at the moment she supplements her income as a professional at Employer E by driving Uber when the girls are not in her care. She says that from April 2019, when the parties separated, until June 2020, the father employed an au pair to assist him with the care of the girls and that when the girls were not with their mother the au pair collected them from school, did their homework with them, and gave them their dinner. She says since June 2020, the father has used babysitters to care for the girls when they are in his care.
At the end of 2019, the mother planned to take the girls on a trip to Country F to see members of her family, particularly her father, brother, sister, and their paternal grandmother. At that time she was still practicing Judaism in accordance with Orthodoxy but was beginning to move more toward traditional Jewish observance. She says that she was then and remains connected to the Jewish community.
On 25 September 2019 there was an exchange of messages between the parties in relation to which the father said as a part of a message “You can practice whatever you want, the kids are being raised as frum Jews”.
The mother says “frum” means Orthodox.
The parties were at this time seeking to negotiate a parenting agreement between them, and the mother objected to a clause in the proposed parenting agreement relating to what the mother refers to as a ‘religious clause’. The mother indicated that she would not sign a parenting plan with that clause in it. She received a reply from the father on 18 November 2019:
I have said before, the agreement needs to be signed before you take the kids out of the country.
The mother replied:
Are you worried that I won’t bring the kids back from Country F or are you using it to manipulate me into agreeing with whatever you want?
to which the father replied:
I don’t think you would actually do that, but it doesn’t mean I’m not worried about it potentially happening. I’m not trying to manipulate you, I’m not forcing you to sign my version of that one clause. I’m asking you to come back with something that is actually a compromise and is not explicitly vague.
The mother annexes a copy of the message trail as annexure C to her affidavit. That annexure contains a part of the SMS message from the father that the mother has not included in paragraph 12 of her affidavit. The whole first part of that message reads from the father,
I have said before the agreement needs to be signed before you take the kids out of the country. The same as I would expect you to demand that of me. I want to have at least some protection by the law acknowledging where the kids and we reside.
The mother says that she signed the parenting agreement so as to be able to take the children to Country F for the trip. She attaches a copy of that parenting plan as annexure D to her affidavit.
That parenting plan provides that:
(a)The father would have the children 65 per cent of the time and the mother 35 per cent of the time, with the care being divided on a fortnightly basis, being with the father in week 1 from Monday morning to Friday afternoon, and with the mother from Friday afternoon until Monday, and then with the father from Monday until Saturday afternoon, and then with the mother from Saturday afternoon until Monday, being five nights with the mother, and nine nights with the father;
(b)Public Holidays were to be split on a case by case basis;
(c)The Jewish holidays, “to be split equally between both parties (pursuant to religion 2A and 3b)”. References to other paragraphs in the document refer to some significant days, Mother’s Day, Father’s Day and so forth.
(d)In relation to education, it provided that the children’s schooling be mutually agreed between the parents;
(e)Under the heading ‘Religion’, it provided the children should be raised in the Jewish faith and provided, and I should read in full:
(a) In the event that one parent decides to no longer observe Shabbat or festivals according to Halacha, the aforementioned days shall be swapped so that the observing parent will have the children for Sabbaths and Jewish festivals with equal time of parenting transferred to the non-observant parent. Ie, if one parent decided not to be observant of the Sabbath, the days would be swapped too so that the other parent had them after Tuesday morning (swapping Friday for Monday night) – this is an example and does not determine what the arrangement would be.
(b) At all times, the children shall not consume non-kosher meat products or their derivatives (ie, non-kosher rennet or gelatine) and non-kosher seafood products or their derivatives.
(c) Over the festival of Passover, children should only be provided with kosher for Passover according to the full extent of Halacha according to normative Modern Orthodox understanding of the law.
I have quoted that in full because the parties’ now divergent observance of their Jewish faith seems to be a central issue in this matter affecting each party’s position in relation to the division of care of the children.
Having signed that agreement, the mother took the children for a three-week holiday in Country F from 15 December 2019 to 13 January 2020. It was during that holiday, the mother says that she did not wish to herself continue to follow or, as she says “enforce Mr Farrelly’s version of Judaism on the girls when they are with me.”
She says in paragraph 16 that since they had returned from Country F in January 2020, the father withheld the girls from her during Shabbat, being Friday sunset to Saturday sunset, because he says “You no longer agreed to practise Shabbat in the way that I require for the girls.”
She says that on 30 January 2020, the father sent her a text as follows:
I'm not willing to have the kids breaking Shabbat... It’s a non-negotiable for me. It is the reason we have swapped time. So you need to figure what you want to do. Either you can promise the kids will keep Shabbat, or you can have them after Shabbat goes out. I compromised on kashrut, but it’s not happening on Shabbat and Yom tov.
The mother says she did not agree to this new arrangement which was imposed by the father in January 2020 in relation to the girls not being with her during Jewish holidays or Shabbat and only being in her care from Saturday nights to Tuesday mornings each week. That was the time when she was having six nights a fortnight and no whole weekend. She says she complied with what the father was saying should happen in relation to their care of the children as she sought to minimise conflict.
She says that on 19 February 2020, the father stated to her in an email “I will move to six days permanently from when the au pair leaves. We both have a full weekend day.”
She said that when the au pair did leave, the father did not follow through with this proposal. From 30 January 2020 to 8 October 2020, she says she had the children on Saturday nights at 6:30PM, and then on 8 October 2020, she says that at the father’s direction, that was changed so that instead of having the children from Saturday night, she began having the children from Sunday morning on each occasion, which was a reduction to five nights a fortnight with the mother.
In consequence, she says that every occasion under that regime on which the children wake up in her care, it is a school day. The children never have a weekend day when they wake up in the mother’s care. The mother refers to Sundays being the days when children are invited to attend friend’s birthday parties. As they are at a religious school, most parties are held on a Sunday.
She says she lives in a three bedroom house which is a 16 minute drive from the children’s school. She says she has flexible working hours and can choose her working hours and has no issues with picking up the children.
She says that on 24 September 2020, she asked the father if she could have the girls for a week in the October 2020 school holidays, and the father refused. She did have three and a half weeks with the girls in the December 2020/January 2021 school holidays.
In paragraph 22, the mother says:
I will support the girls in religious observance that they choose, but I am no longer willing to enforce Mr Farrelly’s rules on the girls. Both Mr B and I are Jewish. We participate in Jewish traditions, but not to the extent that Mr Farrelly does.
She says:
Currently, the girls are comfortable eating non-kosher meat, but they do not want to eat shellfish or pork-based products. If I had the girls on Friday nights/Saturday or a Jewish festival, I would facilitate the girls in going to Synagogue if they expressed interest in doing so or if we were invited to a celebration such as a bar/bat mitzvah, and would have festive meals and do cultural actions such as lighting candles, but I would not be dogmatic in my practice nor enforce on them to never get in a car on these days nor not to use electronics. As they grow up, if they choose not to get in a car on Shabbat or eat only kosher food, I will facilitate them in their religious practices of their choosing. We generally celebrate Shabbat on Friday nights.
X and Y attended G School, a private Jewish school. Z attends day care.
In the affidavit of Mr B of 18 December 2020, he confirms that he is the mother’s partner. He is 42 years of age. He was born in Country H. He is in good health and works as a professional at Employer E. He moved in with the mother in 2020 and it is his intention to sell his property in Country H in the new year so that he and the mother can buy a property in Sydney that will allow the girls to have a separate bedroom as they grow older, because currently, in their home, each of the girls have their own bed, but X sleeps in a separate room from Y and Z who share a large bedroom.
In paragraph 5, he gives his evidence in relation to his relationship with X, in paragraph 6, his relationship with Y, and in paragraph 7, his relationship with Z.
I have read and considered the balance of that affidavit.
In the affidavit of Ms C affirmed 22 December 2020 she deposes she that is a friend of both father and the mother, and she is the Manager of the Region O Jewish Community Centre.
She met father and mother when the father took up position as a public servant and community leader to the Region O Jewish Community Centre between 2014 and 2017. She then gives some evidence in relation to her knowledge of the parenting of each of the parties and the parties themselves.
The father’s evidence is in his affidavit sworn 7 April 2021. In that affidavit he deposes that he is a community leader at Employer J.
He says, as a public servant and community leader, his children and he interact with the full spectrum of the community. He says:
Modern orthodox Jews are observant Jews, who view academia and the modern world in partnership with the religious Jewish world. We have fidelity to Jewish law, culture and philosophy as well as science, modern medicine and all forms of secular academia. Modern Orthodox Jews are distinctly different from ultra-orthodox Jews who tend to isolate themselves from the secular world and weigh Jewish law and philosophy as more important than secular values and education.
He confirms the mother’s evidence already given in relation to their marriage and when they separated and that the children X and Y attend G School and Z attends G Early Learning Centre Day Care five days a week. The children are in good health.
He says he commenced a romantic relationship with his partner Ms K in 2020, and the children were introduced to Ms K in 2020. He and Ms K do not cohabit and have no immediate plans so to do.
He says Ms K is Jewish, but not fully observant, but when she spends time with the children and during the Sabbath or on religious Jewish holidays, she is observant to avoid causing confusion for the children, and out of respect for the father and children’s religious beliefs.
In paragraphs 12, 13 and 14, the father gives his evidence in relation to his relationship with each of X, Y, and Z and gives some evidence about the children’s characters.
In paragraph 15, the father says, referring to the children “They have become very close with my partner as they have with Ms Farrelly’s partner.” This strikes the Court as a very refreshing piece of evidence to read in parenting proceedings.
He confirms that he remains in the former matrimonial home at Suburb D, and after moving out of the matrimonial home, the mother moved to accommodation in Suburb M, but she now resides in Suburb N in inner Sydney city. The father refers to communication between the parties in the early days of their separation, and particularly from August 2019 when they were working up toward and beginning to arrange their parenting plan.
He says that until August 2019, both he and the mother were observant Modern Orthodox Jews and that prior to the birth of the children, they agreed and thereafter raised their children and observed the customs and practices of the Modern Orthodox Jewish faith. He says that following separation, the mother communicated to him that she was not going to maintain all her observances. He refers to the clause that I read in full from the parenting plan in relation to the children’s religious observance, and both he and the mother signed the parenting plan on 9 December 2019.
He says in paragraph 29 that despite the agreement represented by the parenting plan:
… once Ms Farrelly decided to no longer observe the modern Orthodox faith, she refused to facilitate the children’s ongoing observance whilst they were in her care. This, in turn, triggered clause 1 under the heading ‘Religion’ on page 3 of the Parenting Plan, with the consequence that neither Ms Farrelly nor I have the children in our care for a full weekend.
He says in paragraph 30 that the mother refuses to facilitate the children eating kosher food, and that as a compromise he asked the mother to not feed the children non-kosher meat. He says that on occasions, the children said to him that whilst in the mother’s care, she had wanted them to eat pork dumplings, but that they did not want to. He says that, to avoid ongoing dispute with the mother, he resolved himself to the fact that the mother would not facilitate or encourage the children to observe the Sabbath during the time they spend with her during the school holiday period.
That relates to what may appear to be an anomaly in the father’s proposed orders, in that the children would be with him over the particular Sabbath period from sundown Friday to sundown Saturday, going into the mother’s care at 9:00AM on Sunday in each week, but with the parents sharing the school holidays on a half-half basis, the children are in the mother’s care during the period of the Sabbath occurring during school holidays when they are in her care.
He says in paragraph 32:
I strongly object to the children’s non-observance of Sabbath or the observances of religious festivals, in times other than school holiday periods.
The father’s explanation for the differentiation between during school term Sabbaths and school holiday period Sabbaths is, on my reading of the evidence, only found in the opening words to paragraph 31 “To avoid ongoing dispute between Ms Farrelly…” meaning, between mother and father.
He says that at the end of January 2020, the care arrangements for the children changed. They continued living with him, and spend time with the mother four nights each fortnight during daylight savings, six nights each fortnight in all other months.
He said there was an agreement to so amend the parenting plan, but that the mother refused to sign the amended parenting plan. On the evidence of both parties, by that time, the parenting plan was not being observed by either parent.
The father says that he is solely responsible for the payment of the children’s school fees and day care fees, and all costs associated with the elder girls’ attendance at G School and Z’s attendance at G Early Learning Centre, other than in relation to school uniforms, which the mother pays for.
G School is an Orthodox Jewish school. The parents agreed, when they were moving from the ACT to Sydney, that they would send their children to that school.
The father accepts, in paragraph 70, that the mother should be meaningfully involved in the children’s lives, and he says, in the next paragraph:
I believe that Ms Farrelly is a good parent. The children love her and love spending time with her. Since she had partnered with Mr B, I have noticed the children feel more stable, and they often talk about him to me.
Once again, it should be said, that is extremely refreshing evidence to read from a party in a parenting matter.
In paragraph 76, the father vehemently denies any allegations raised by the mother in relation to excessive consumption of alcohol by him, or that he was controlling or abusive during the relationship.
Exhibit 2 – which is the tender bundle on behalf of the mother, which was admitted into evidence without objection – contains some financial documents relating to the father and details of communication between the parties themselves by email chain, and communication between the parties’ respective solicitors – also communication between the parties by SMS text messages and by the WhatsApp exchange.
THE LAW
All parenting proceedings at court must follow the legislative pathway set out in the Act, even though these are interim proceedings, as made clear by the High Court of Australia in MRR v GR [2010] HCA 240, and the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346, and Marvel & Marvel (2010) 240 FLR 367.
The Court must give attention to section 60B of the Act in Part VII, which sets out the objects of Part VII of the Act, and sets out the principles underlying those objects, and I have considered those objects and the principles behind them in relation to formulating these Reasons.
Section 60CA of the Act requires that, when making a particular parenting order, the Court must regard the best interests of the children as the paramount consideration. There are, of course, other considerations – considerations relating to the parents, new partners, extended families, and so forth – but the children’s interest must always be the paramount consideration.
In determining what is in the children’s best interest, the Court must give attention to the primary and additional considerations set out in section 60CC of the Act, and make appropriate findings. The cases tell us that the Court does not need to consider, in each case, every one of the additional considerations, only those that are relevant in the context of the matter before the Court.
Section 61DA provides that when making a parenting order in relation to children, the Court must apply a presumption that it is in the best interest of the children for their parents to have equal shared parental responsibility. The presumption does not apply where a parent has perpetrated family violence or abuse, and when applying, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal share of parental responsibility.
In relation to interim hearings, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied.
If the Court is making an order for equal shared parental responsibility, or such order exists and will go on, then the Court must give attention to section 65DAA of the Act, which provides that the Court must consider whether the children spending equal time with each of their parents would be in their best interests, whether that would be reasonably practicable as defined in section 65DAA(5), and if the answer to both is yes, the Court must consider making an order to provide for the children to spend equal time with each of their parents.
If the Court does not do that, the Court has to consider whether the children spending substantial and significant time, as defined in section 65DAA(3), with each of their parents would be in the best interests of the children, whether such would be reasonably practicable, and if the answer to both is yes, the Court must go on to consider whether making such an order is appropriate.
If the Court does not make an order for equal time or substantial and significant time with each of the parents, then the Court must go on to consider what order is proper to be made with the best interests of the children as the paramount consideration, per section 65D.
As for what is proper, and how the Court’s discretion is to be exercised, I refer to the comments to the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21, at paragraph 18:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
This is not a risk matter. This is not a matter where either parent is asserting that the children are at any form of risk whilst in the care of the other parent, because both of the parents are seeking orders placing the children in the multi-night care of the other parent.
Both the parents seek that the children live with them and spend time with the other parent. This is a case that turns, to a large extent, around parental capacity and care, and the parents’ differing views in relation to their children’s observance, together with them, of their own particular observance of the Jewish faith (on the father’s side, Modern Orthodox Jewish; on the mother’s side, a less strict form).
Once again, that is not a value judgment in using the term “less strict”. There are, on what I have been presented in this case, far stricter forms of observance of the Jewish faith than Modern Orthodox Judaism.
The legislative pathway
Turning to section 60CC, the primary considerations are the benefit to the children of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) mandates that the Court must give greater weight to the consideration related to any need to protect children over the benefit to the children of having a meaningful relationship with both of their parents.
I will start that by going simply into the mother’s Notice of Risk, where she asserts that there are elements of risk that I outlined earlier when I was talking about the material relied upon.
I carefully considered all of the evidence presented by the mother including the evidence that she points to in section 3 and section 4 of her Notice of Risk filed 27 November 2020, and I find that there is nothing presenting a risk for the children in the care of either parent. There is no need to protect the children from anything by way of physical or psychological harm, or exposure to abuse, neglect, or family violence.
Returning back to the other primary consideration. On all of the evidence, these children are lucky enough to have a close and loving relationship with both of their parents; that is, perhaps, the best form of meaningful relationship. It is self-evidently to the benefit of X, Y, and Z to have a meaningful relationship with both of their parents, to continue those meaningful relationships, and to have the opportunity to further develop those meaningful relationships as they grow up.
Additional considerations
Turning to the additional considerations.
Just pausing there; the cases tell us that the meaningful relationship children have with parents when their parents are separated is perhaps not the optimal relationship, a meaningful relationship that children could have when they are being cared for in the one household family unit by both their parents, but is the best meaningful relationship the circumstances can provide.
(a) any views expressed by the children
This is not a case where views have been expressed by the children, though the evidence of the father contains some asserted quotes from the children indicating their wish to follow, certainly, food-rule aspects of their Modern Orthodox Jewish faith. But, as to wishes in relation to division of care between their parents, there is no appropriate evidence, nor, if there was such evidence, would it carry any weight at all for Z and Y, and very little weight at all for X, who, having turned nine years of age, has, in all probability, gone past what is known as the cognitive age for human beings (the age at which we start making decisions based upon a primitive logic, rather than an impulse thought we think would be best for ourselves), but is still not of an age where any view she expressed would get any weight.
(b) The nature of the relationship of the children with each of their parents and any other persons
In relation to the parents, all three of these children, as I have already said, are lucky enough to have a close and loving relationship with each of their parents, and the parents, similarly, are each lucky in that. As Mr Justice Altobelli of the Family Court of Australia was happy to sometimes say, when his Honour was a Judge of this Court, this is one of those cases, unfortunately not too frequent, where good people and good parents come before the Court, people not open to criticism in their parenting.
On the father’s evidence, the children have an excellent relationship with the mother’s cohabitive partner, Mr B, which is also set out in Mr B’s evidence and the mother’s evidence. There is no reason to find other than that the children also have a similarly excellent relationship with the father’s partner, Ms K, though they are not in a cohabitive relationship at the present time.
(c) The extent to which each of the parents has taken or failed to take opportunities of decision making, spending time with the children, and communicating with the children
In relation to the extent to which each of these children’s parents has taken, or failed to take an opportunity to participate in making decisions about long term issues, spend time with the children, communicate with the children, there is no criticism to be levelled against either parent on the basis of the evidence I have.
The mother asserts that there are occasions where the father has made unilateral decisions without consulting her. The father denies that in his affidavit material, and asserts that, on any occasion where there has been a long term decision to be made, he has consulted with the mother, and given her the opportunity to be involved in that process.
Both of the parents have taken the opportunities available to them to spend time with and communicate with the children. There is no finding to be made there, to the detriment of either parent.
(d) The extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the children
I find no evidence of a failure, on the part of the parents to maintain the children. The father has maintained responsibility for payment for their education costs and day care fees and so forth. Each of the parents is paying for the care of the children when they are in their individual care.
(e) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other person
The orders proposed by the mother would entail the children passing into her care for the greater part of the fortnight, where since the time of the parties’ separation, they have been used to being in the father’s care for the greater part of the time. Similarly, in relation to the father’s proposal, that perpetuates the circumstance where they are in his care for the greater part of the time including through all of the Jewish holidays and festivals.
The main change that would be effected for the children if orders were made in accordance with the mother’s application, or if orders were made in accordance with the possibility voiced by the Court, in relation to which submissions were invited and provided, of the children being in the equal care of the parents on a week-about basis, the change would be that the children would no longer be in their father’s care each Sabbath, but would be so every second weekend. On either of those two proposals, the mother’s proposal, or the one voiced for comment by the Court, the children would be in the father’s care on one weekend and the mother’s care on the other weekend.
That is a change that for school term time, the father strenuously opposes, in that he seeks that the children be in his care during school time over the Sabbath each week, so that they can observe, with him, their Modern Orthodox Jewish faith in the manner they have been used to. However, and as the father comments twice in his affidavit evidence, and as referred to in the written submissions, the father’s proposal in relation to school holidays is different. He proposes that during that half of school holidays when the children are in the mother’s care, over a period of Sabbath they remain with the mother and not return to the father, barring the Jewish festival occasions.
That is an inconsistency in approach, which, I find, speaks against the father maintaining a stance that the children must, strictly, and at all times, observe Sabbath in the manner that would follow the modern Orthodox Jewish observance. Why there is a different circumstance proposed by the father for school holiday time, as to what is proposed for school term time, is not clear. As I said, the father’s only explanation for it being those words “To avoid ongoing dispute between Ms Farrelly [and I].” The “and I” I have put in square brackets because it is the sense of it, but it is not found there in the sentence.
I find that the benefit to the children of being able to share with each of their parents in those occasions of particular significance to them, not only in their religion but in their culture, is an important part of their having, maintaining and developing their meaningful relationship with each of their parents. I find that the children being able to spend the quality time, the fun time, the weekend time, with each of their parents over a whole weekend, so that they can engage in leisure activities on those two days a week away from school with each of their parents, is an important part of the children having, maintaining, and developing their meaningful relationship with each of their parents.
The mother adverts to, under the arrangement proposed by the father, the children not waking up in her care, on any weekend day. The mother adverts to the prevalence of school friends’ or day care friends’ birthday parties occurring on Sunday because of the religious nature of the school and day care attended by the children, thereby, using up part – I do not know what part from occasion to occasion, but part – of the day being the only day or part of the weekend she has with the children.
I find that a change in the children’s circumstances, whereby they begin to spend weekend time over the whole weekend with each of their parents, and taking into consideration the mother’s evidence that she intends to continue observance of the Sabbath, is in the best interests of the children.
I find that the nature of the relationship of each of the children, and their attachment, given the history outlined in the evidence of each of the parties, even and including Z, who is a bit over four and a-half years of age, is such that the children being in the care of either parent on a live-with basis, as proposed by the father on his side, as proposed by the mother on her side, or the children being in the care of the parents week-about on an equal shared basis, would not be such as to cause them a disturbance, by way of missing the other parent for that period of time that would outweigh the benefit to the children of being able to spend the greater period of time with each of their parents.
(e) The practical difficult and expense of the children spending time with and communicating with a parent
In relation to the practical difficulty and expense of the children spending time with and communicating with each parent, the father lives at Suburb D in the eastern suburbs. The mother lives at Suburb N in the inner city. The father gives some evidence about the time taken to travel between one place and the other. The mother does not express, in her evidence, any difficulty in relation to picking up the children from school, taking them to school, any exchange that may occur between parents and so forth consequent from the distance between them. In terms of the Greater Sydney area, the difference between Suburb D and Suburb N is, certainly, not a great distance so as to impose difficulties relating to travel in the matter.
I find that the travel is not a consideration, but I do find that the number of times that the children would be changing back and forth between the parents, under the proposals put forward by each of the parents, would give increased opportunity for any flashes that may occur between the parents. That is not to say that it is a common occurrence, because that is not put in the evidence but, in general terms, the more occasions that children can have a buffer between leaving one parent and going to the other parent, such as a whole day at school (six hours odd) to reacclimatise, and a minimisation of the occasions when children are passing out of the immediate care of one parent to the immediate care of the other parent, by and large, would seem to be in the children’s best interests.
(f) The capacity of each of the parents and any other person to provide for the needs of the children including emotional and intellectual needs
In relation to parenting capacity, I have carefully considered the evidence by each of the parents, in particular, the evidence given by the mother in relation to the father consequent upon what she directed the Court’s attention to in her Notice of Risk, and I find that there is no basis upon which to make a finding that either parent lacks proper, appropriate, capacity to provide for the needs of these children including their emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents, and any other characteristics of the children that the Court thinks relevant
Consideration of the maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children is another important consideration here.
The father seeks the arrangement for their care proposed by him on the basis that he seeks to have the children in his care on the important occasions such as Sabbath and religious holidays and festivals, so that he can share with the children, in the first place, and assist and, perhaps, instruct them as he is eminently suited to do so, in relation to their observance of the Modern Orthodox Jewish faith. The mother, on her part, says that she intends to maintain her own Jewish faith, that she is following an observance of Jewish faith that is less strict (I have explained why I have said that word previously) than modern Orthodox Jewish observance, but that she intends to respect the children’s wishes in relation to religious observance.
It is here that I refer to the very helpful references provided by each of the counsel in the case outlined documents, to cases relating to parenting issues dealing with matters of religion for children. In relation to the case outline prepared by Mr Tockar, he referred the Court to In Re J [2005] UKHL 40, an English case, at paragraphs [37] to [39], and also Re G (Children) (Religious Upbringing: Education) [2012] EWCA Civ 1233, another English case, at paragraph 36. He has provided quotes from those cases. He also referred the Court to a number of other cases from the Australian jurisprudence.[2]
[2] See especially pages 20 and 21 of the mother’s Case Outline.
Similarly, Ms Dart in her case outline presented for the interim hearing, referred the Court to the decision the Full Court back in 1981 of N & N (1981) FLC 911-111 at pages 76,828 to 829 and provided a quote therefrom. I have considered those references provided by counsel for each of the parties.
By and large, the Court seeks not to interfere in parental decisions relating to religion for children, but to leave that as a matter for parental responsibility, and leave that for the parents to decide, either between themselves, or individually in relation to the children being in their care.
I find that based upon all of the evidence, it is in the children’s best interest when they are in their father’s care, to be guided by him in relation to their observance, and when they are in their mother’s care, to be guided by her in relation to her observance, but with the caveat that she puts before the Court in her evidence that she will respect the children’s wishes in relation to their observance of their Jewish faith, and that means the children’s wishes in relation to their observance of their Jewish faith, as Modern Orthodox Jews.
These are interim proceedings. The testing of the mother’s evidence is in the performance.
Now, Z is only four years of age. She is unlikely to be in a position to fully understand, let alone express her wishes in relation to such matters. And the Court would expect that what is provided by the mother for Z is guided by any wishes expressed particularly by X and also by Y.
(i) The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Finally, in relation to the consideration of the attitude to the children and responsibilities demonstrated by each of the parents I find that each of them demonstrates an appropriate attitude to the responsibilities of parenthood. Difficulties arise from their relationship having broken down, each with the other, and their different views following the breakdown of their relationship and their separation in relation to how the children are to be raised observing their Jewish faith.
I find, in this matter, on the whole of the evidence, in which I find that each of these are caring, loving and careful parents, that it is appropriate to leave the children’s religious observance and circumstance to each of the parents when they are in their care. I note, again, as I have already said at least once, the evidence of the mother in relation to her intention to continue her and the children’s observance of the Jewish faith and the Sabbath.
Parental responsibility
Turning to section 61DA, and the presumption of equal share parental responsibility.
The mother seeks an order that the parents have equal shared parental responsibility, except that she have sole parent responsibility in relation to matters going to the children’s religion and the children’s education.
If an order is made splitting parental responsibility in any manner into component parts, so that one parent has sole parental responsibility for some aspects of parental responsibility and both parents have shared parental responsibility for other aspects, then pursuant to the decision of Watts J in Pavli & Beffa (2013) 48 FamCA 144, if an order is made for sole parental responsibility for some aspects, then any combined responsibility is a shared parental responsibility. It cannot be an equal shared parental responsibility provision.
The father, does not seek an interim order in relation to parental responsibility. That would leave the circumstances under section 61C, with each parent having parental responsibility. This is a different legal situation to equal shared responsibility or orders splitting up parental responsibility, as the Full Court of the Family Court outlined in Goode & Goode, previously referred to.
I find that the presumption of equal shared parental responsibility applies in these proceedings, there being nothing, as is referred to in section 61DA(2), that would cause the presumption not to apply.
I find that there is nothing in the whole of the evidence that would lead me to find that the presumption is rebutted in this case.[3] I find that it is appropriate, even though these are interim proceedings, that the presumption should be applied and an order should be made for these parents to have equal shared parental responsibility for their children, bringing with it the requirement that they consult in relation to long term parental responsibility issues and make their best efforts to reach agreement.
[3] Family Law Act 1975 (Cth) s 61DA(4).
Section 65DAA
That being the case, I have to give attention to section 65DAA of the Act and consider, as I have outlined, the concept of equal time for the children with each of their parents, and if that is not the appropriate order, to consider the children spending substantial and significant time with each of their parents.
Is the children spending equal time with each of their parents in their best interests? I find, on the basis of all the considerations I have gone through under section 60CC of the Act, that the children spending equal time with each of their parents is in their best interests.
I find that the possibility of such order as voiced by the Court to the parties and consequent invitation to make further written submissions led to cogent and detailed written submissions being provided by each counsel, and I have very carefully considered both those sets of supplementary written submissions.
In her written submissions on behalf of the father, Ms Dart refers to a lack of effective communication between the parents and a breakdown of their co-parenting relationship. She referred to them as polarised parents and submits that that circumstance would have a detrimental effect on the children in the event that an order was made that they spend equal time with each of their parents.
I carefully considered all of those submissions, but I find, on the basis of the evidence and considerations under section 60CC and the submissions made by Mr Tockar on behalf of the mother in his supplementary submissions, that a week-about arrangement is, even on this interim basis, the proper order to be made, with the best interests of X, Y, and Z as the paramount consideration.
I find that it is in each of the children’s interests that an order be made that they spend equal time with each of their parents. I find that the children spending equal time with each of the parents is reasonably practicable, still keeping in mind the father living in Suburb D, the mother living in Suburb N, and the school attended by the children.
Accordingly, I consider that making such an order is in the best interests of the children and that such an order will be made. I do not have to then go on and consider the further matters in section 65DAA.
Additional orders sought
In addressing some of the particular orders sought by the parties beyond the day to day care of the children, I find it is appropriate to make orders to assist the parties in the event they cannot reach agreement in relation to the time the children spend with the parents for Jewish holidays. In keeping with what I have found in relation to the week-to-week care of the children, I find that similar considerations apply to Jewish holidays and festivals.
I find that it is in the best interests of the children to make orders in that regard as proposed on behalf of the mother in the supplementary submissions presented by Mr Tockar.
I find it is also appropriate to make orders of a blended nature as proposed by each of the parents for the children spending time with the applicable parent on the children’s birthdays, parents’ birthdays, Father’s Day, and Mother’s Day.
In relation to school holidays at the end of terms 1, 2, and 3, on my determination that the appropriate order for care during school term is equal time, I find that such equal time should be week-about and that can continue through the term 1, 2 and 3 school holidays, and that the term 4 school holidays can be shared between the parents on first-half-second-half basis, flipping over year by year.
In relation to the mother seeking an order that the children have unlimited telephone, Skype, and telephone video contact with both parents in the other parents care, I find that there is no need for that level of communication, but a more appropriate order is somewhat less than that. No order in relation to telephone and video communication is sought by the father, but I find an appropriate order is to lessen that to such occurring on Monday and Wednesday with the parent with whom the children are not living, at some time between 5:30PM and 6:30PM, and at all times, when such communication is requested by any of the children.
In relation to changeover, under an order that the children are in equal care of the parents on a week-about basis, most changeovers, particularly during school term, will occur at the children’s school. But for changeovers that do not occur at the children’s school, I find it is appropriate that such changeovers occur by the children being collected by the parent into whose care they are moving from the home of the parent whose care they are leaving.
In relation to the orders relating to exchange of information, keeping updated in relation to education, medical, and so forth, I find that the orders sought by the mother in that regard are appropriate, as is an order that both parents can attend school functions, school activities, and extracurricular activities involving the children, even when that is occurring when the children are in the care of the other parents.
The mother seeks an order, as I have said, that the father pay the costs of these proceedings. I will address that after making orders.
In relation to the orders sought by the father in relation to the parents not criticising or denigrating the other parent, I find in this matter – as in pretty well every matter in which I make parenting orders – that it is appropriate, in the interests of the children, to make an injunctive order restraining parents from denigrating the other parent and other important persons on each parent’s side, and also to not allow the children to be exposed to any other persons who are denigrating the other parent or other important persons in the other parent’s side.
I will address the father’s application for costs after making orders.
THE APPLICATIONS FOR COSTS
In relation to this matter, each of the parties has sought an order that the other party his and her costs.
The mother seeks that that order be an order for costs of suit. The father seeks an order that the mother pay his costs of these interim proceedings on the indemnity basis.
The applications for costs are governed by section 117 of the Act, and as provided by section 117(1) the general rule is that each party pay his and her own costs.[4]
[4] “Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs”; Family Law Act 1975 (Cth) s 117(1).
Section 117(2) provides that if in proceedings the Court is of the opinion there are circumstances that justify it in doing so, the Court may, subject to certain subsections, and in particular subsection (2A) and the Rules of Court, make such order as to costs as the Court considers just.
Section 117(2A) sets out the matters the Court must have regard to when considering making an order in relation to costs under section 117(2).
I have considered the financial circumstances of the parties.[5] I find that each of these parties is in a position to address costs of the other party.
[5] Family Law Act 1975 (Cth) s 117(2A)(a).
Paragraph 117(2A)(b) refers to whether any party to the proceedings is in receipt of assistance of Legal Aid. Neither party is.
Paragraph 117(2A)(c) refers to the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.
That consideration is directed to, as it says, “Conduct in the proceedings”, not conduct generally, conduct one to the other and so forth. I find that there is no conduct by either party in these proceedings that justifies a finding for costs.
Paragraph 117(2A)(d) refers to whether proceedings were necessitated by a failure of a party to comply with the previous order. That does not apply here.
Paragraph 117(2A)(e) refers to whether any party to the proceedings has been wholly unsuccessful in the proceedings. Neither party has been wholly unsuccessful, and neither party has been wholly successful.
Paragraph 117(2A)(f) refers to whether either party to the proceedings has made an offer in writing to the other party. I find, in terms of the orders that I have found it proper to be made, in the best interests of X, Y and Z today, that there are no applicable offers.
Paragraph 117(2A)(g) refers to any other matter the Court considers relevant. I find there are no such other matters.
I find on consideration of the whole of this matter that there is nothing in these interim proceedings, given the outcome, that would justify the Court departing from the general rule that each party pay their own costs of these interim proceedings.
Accordingly, on the basis that each party has an application for costs, I make the order as set out at the start of these Reasons for Judgment.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 24 May 2021
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