Fellows and Fellows
[2011] FMCAfam 318
•8 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FELLOWS & FELLOWS | [2011] FMCAfam 318 |
| FAMILY LAW – Children – parenting orders – best interests of the children – equal shared parental responsibility – substantial and significant time – two children under school age – graduated increase in time. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR FELLOWS |
| Respondent: | MS FELLOWS |
| File Number: | SYC 3782 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 April 2011 |
| Date of Last Submission: | 6 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
BY CONSENT:
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2007.
The children [X] and [Y] are to live with the Mother.
The Father is to spend time with the children [X] and [Y]:
(a)on alternate weekends;
(b)on Father’s Day;
(c)from 8:00am on 23 December in each year until 7:30pm on Christmas Eve in each year;
(d)on each of the children’s birthdays; and
(e)on the Father’s birthday
at times otherwise specified in these Orders.
Neither party is to arrange for either of the children’s hair to be cut or their ears to be pierced without the consent of the other party.
AND IT IS FURTHER ORDERED THAT:
All previous parenting Orders are discharged.
The Father is to spend time with the children as follows:
(a)from 9:00am to 6:00pm on Father’s Day in each year;
(b)on each of the children’s birthdays if the children are not otherwise spending time with the Father according to these Orders for a period of not less than three (3) hours at times to be agreed between the parties PROVIDED THAT if the birthday falls on a day when the child is attending school then from immediately after school until 6:30pm;
(c)on the Father’s birthday if the children are not otherwise spending time with the Father according to these Orders for a period of not less than three (3) hours at times to be agreed between the parties PROVIDED THAT if the Father’s birthday falls on a day when the children are attending school then from immediately after school until 6:30pm;
(d)from 5:00pm on Thursday 21 April 2011 until 9:00am on Easter Sunday 24 April 2011;
(e)each alternate weekend as follows:
(i)until the child [X] commences to attend school from 5:00pm on Thursday until 5:00pm on Saturday;
(ii)from and after the time that the child [X] commences to attend school until 31 December 2016 from immediately after school or day care as the case may be on Friday if that day falls during the school term until 9:00am on Sunday to continue during the school holidays in which case the Father’s time with the children is to commence at 3:00pm;
(f)from and after the time the child [X] commences to attend school during the Autumn, Winter, Spring and Summer school holidays as follows:
(i)in 2012 for a period of two (2) days at times to be agreed by the parties;
(ii)in 2013 for a period of three (3) days at times to be agreed by the parties;
(iii)in 2014 for a period of four (4) days at times to be agreed by the parties;
(iv)in 2015 for a period of five (5) days at times to be agreed by the parties;
(v)in 2016 for a period of six (6) days at times to be agreed by the parties; and
(vi)from and after 1 January 2017 for a period of one (1) week during the Autumn, Winter and Spring school holiday periods commencing immediately after school on the last day of the school term and concluding at 5:00pm one (1) week later and from 9:00am on 12 January until 5:00pm on Australia Day 26 January in each year; and
(g)at such other times as the parties shall agree.
NOTWITHSTANDING THE PROVISIONS OF ORDER (6) ABOVE the children [X] and [Y] are to spend time with the Mother:
(a)from 9:00am to 6:00pm on Mother’s Day in each year;
(b)on each of the children’s birthdays if the children are not otherwise in the care of the Mother according to these Orders for a period of not less than three (3) hours at times to be agreed between the parties;
(c)on the Mother’s birthday if the children are not otherwise in the care of the Mother according to these Orders for a period of not less than three (3) hours at times to be agreed between the parties.
In order to give effect to Orders (6)(a),(b) and (c) the father is to collect the children from the Mother’s residence or the children’s school at the commencement of the time specified in the Order and the Mother is to collect the children from the Father’s residence at the conclusion of the time specified in the Order.
In order to give effect to Order (6)(d) the Mother is to deliver the children to the Father’s residence at 5:00pm on Thursday 21 April 2011 and the Father is to deliver the children to the Mother at the Anglican Church at [suburb omitted] in the State of New South Wales at 9:00am on Easter Sunday 24 April 2011.
In order to give effect to Order (6)(e)(i) the Father is to collect the children from the Mother’s residence or the children’s school or day care at the commencement of the time specified in the Order and the Mother is to collect the children from the Father’s residence at the conclusion of the time specified in the Order.
In order to give effect to Order (6)(e)(ii) the Father is to collect the children from the Mother’s residence or the children’s school or day care at the commencement of the time specified in the Order and deliver the children to the Mother at the Anglican Church at [suburb omitted] at 9:00am on the Sunday morning.
In order to give effect to Order (7) the Mother is to collect the children from the Father’s residence at the commencement of the time and the Father is to collect the children from the Mother’s residence at the conclusion of the time specified in the Order.
If the Father is required to work at any time on a Friday when the children are spending time with him according to these orders he is either to ensure that the children are supervised by a responsible known adult to the Mother or to place the children into their usual Day Care at his expense.
When the children are spending time with the Father according to these Orders he is to ensure that each child has his or her own bed in which to sleep and appropriate privacy according to their developing needs.
The Father must purchase for the children suitable clothing and underwear for the children to meet their needs during the time when they are spending time with him according to these Orders.
Where each party has provided clothing for the children to wear during the time they spend with the other party then the other party must use reasonable endeavours to wash the clothing and return the clothing to the party who provided the clothing in a clean and dry condition.
The parties are restrained by injunction from removing or attempting to remove the children [X] born [in] 2006 and [Y] born [in] 2007 from Australia without the written consent of the other party or Order of the Court.
If either party wishes to take the children out of the State of New South Wales for the purposes of a holiday that party must give the other party seven (7) days notice and provide the other party with an address at which the children will be staying and a contact telephone number.
Each party must keep the other party informed of his or her home address and landline and mobile telephone numbers and advise the other party of any change within forty-eight (48) hours.
Each party must advise the other of any illness or injury sustained by either child requiring treatment at a hospital or by a specialist medical practitioner as soon as is reasonably possible.
Each party is entitled to receive from any school at which the children attend copies of all school reports, notices, newsletters, advice of school photographs and any other documents usually provided to parents of children attending that school and this order shall be authority to the child’s school to provide such information to each party.
Each party is entitled to attend parent teacher interviews, school social functions or sporting events normally attended by parents of children attending that school.
Each party is restrained by injunction from denigrating or criticising the other party in the presence or hearing of either of the children or from permitting any third party to do so.
AND THE COURT NOTES
The parties agree that they will give reasonable consideration to requests from the other party to exercise flexibility to vary the arrangements provided for in these Orders in order to meet the needs of special occasions of significance to one or other party.
IT IS NOTED that publication of this judgment under the pseudonym Fellows & Fellows is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3782 of 2010
| MR FELLOWS |
Applicant
And
| MS FELLOWS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for parenting orders by the Father of two children, [X], who is nearly five years old, and [Y], who is three years old.
The parties have agreed on certain orders. There is no issue between them that:
a)they are to have equal shared parental responsibility for the children;
b)the children will continue to live with the Mother;
c)the Father will spend time with the children on alternate weekends, on Father’s Day, on the children’s birthdays, on the Father’s birthday, for the two days immediately preceding Christmas Day;
d)that they should be flexible about varying the orders to cater for special occasions; and
e)that neither party should arrange for the children’s hair to be cut or their ears to be pierced without the consent of the other.
Issues in Dispute
There are issues between the parties about:
a)The time to be spent by the children with the Father on alternate weekends and school holidays;
b)Whether the Father is to collect and deliver the children when they are spending time with him or whether the parties should share the travelling equally; and
c)The provision of clothing for the children during the times they spend with the Father.
Background
The parties were married [in] 2003 and separated on 1st January 2009.
There are two children of the marriage.
[X] was born [in] 2006. she will be five years old in June this year. She will start school at the beginning of the first school term in 2012.
[Y] was born [in] 2007. He is three years and four months old. He will not start school until 2013.
The children live with their mother and have done so since the parties separated. The Mother has not re-partnered.
The Father has formed another relationship with a lady. They have been together since January 2010. She has four children from a previous relationship, aged 22, 21, 17 and 11 years old. They all live with her and the Father.
The Mother has complained of violence within the relationship. There was an incident on 12th April 2009 which led to intervention by the NSW Police. The Police made an application to the Local Court at Parramatta for an Apprehended Domestic Violence Order. An order was subsequently made in favour of the Mother, but it has since expired.
The Father commenced proceedings in this Court by filing an application on 17th June 2010. The application came before the Court on 26th July 2010 and, on that day, the parties entered into Interim Consent Orders providing that:
a)The parties would have equal shared parental responsibility for the children;
b)The children would live with the Mother;
c)The Father would spend time with the children in alternate weeks from 8:00am on Friday until 5:00pm on Saturday.
This arrangement continued until a few weeks before the hearing, when it was varied by informal agreement so that the children would spend time with the Father from 5:00pm on alternate Fridays until 5:00pm on the following Sunday.
The Father works as a [omitted]. The [workplace] has a trial program whereby all the time is compressed into four days, from Monday to Thursday. The Father is therefore free on Fridays, although he has a temporary work on a Friday morning.
The Mother works as a [omitted] on a permanent part-time basis on three days a week, being Monday, Thursday and Friday.
Evidence and Submissions
Each party gave oral evidence and made submissions.
The Father relied on his affidavit sworn on 11th June 2010. The Mother relied on her affidavit sworn on 15th March 2011.
The Father told the Court that the children had been spending time with him according to the consent orders, subject to the recent change to the arrangements that the parties had made. He confirmed that he was in another relationship. He said that his children get on well with his partner’s children. The sleeping arrangements were that his partner’s children have two bedrooms between them, the older two are young women and the younger two are boys. His two children sleep in the same bedroom as him and his partner. He has single beds for them
The Father said that he and the Mother were able to communicate in an appropriate way about matters concerning the children, although there were still differences between them about other matters.
He expressed a fear that the Mother might relocate the children’s residence out of Sydney, stating that she had family in Newcastle and may wish to move there.
The Father told the Court that he was not seeking to have the children spend time with him for half of the school holidays once they attend school. He conceded that there would need to be a graduated program over time. He wishes to continue to have the children spend time with him for two nights a fortnight and does not wish to revert to the previous arrangement, where the children were only with him for the Friday night.
The Mother raised a concern about the children’s sleeping arrangements in the future. Whilst it was not an issue at this stage, she felt that as her daughter got older she would reach a stage in her development where she would need her privacy and it would be inappropriate for her to continue to share a bedroom with her father and his partner.
The Mother wishes to return to the arrangements as they were until recently. She wants the Father to have the children all Friday because she works on Fridays and the children would otherwise be in Day Care, which was a financial burden on her. She also wants the children to be with her on Sundays, because they attend the Anglican Church at [suburb omitted], which is an important occasion each week. The children go to Sunday School whilst the adults are in church. There are also organised activities for the children, which is good for their socialisation, and then adults and children all get together for morning tea.
The issue of money is important for the Mother, as she is a single parent and she told the Court that the Father did not make child support payments promptly. It is for financial reasons that she would like the Father to undertake the travel both ways for the times when the children spend time with him, at least on alternate weekends.
The Mother raised the issue of the Father’s desire to take the children with him back to Ecuador to see his extended family. It was her view that the travel time would be too much for the children whilst they are young and they would not cope well with being away from her for a lengthy period.
The Father told the Court that he had no plans to take the children to Ecuador at any time in the immediate future but it was a dream that he had that at some time they might be able to make such a trip.
The Mother raised concerns that the Father had complained that she does not provide enough clothing for the children when they spend time with him. She said she sends a backpack full of clothes with the children, and when they return she gets all the clothes back, unwashed. She believes that the Father should provide some clothes for his children.
The Relevant Law
Section 60CA of the Family Law Act 1975 requires a Court, in deciding whether to make a particular parenting order in relation to a child, to regard the best interests of the child as the paramount consideration.
The Court determines what is in the child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3) of the Act. The primary considerations are in s.60CC(2), and they are:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence.
There are a number of additional considerations in s.60CC(3), some of which are relevant to this case. The Court is also required by s.60CC(4) to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent.
Again, where the child’s parents have separated, as they have in this case, the Court is required by s.60CC(4A) to have regard to events that have happened and circumstances that have existed since the separation occurred.
When making a parenting order in relation to a child, the Court is required by s.61DA of the Act to apply a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
If the Court makes a parenting order that provides that a child’s parents are to have equal shared parental responsibility for the child, Section 65DAA of the Act requires the Court to consider whether the child spending time with each parent is:
a)in the child’s best interests; and
b)reasonably practicable.
If the Court does not make an order for the child to spend equal time with each parent, the Court must then consider whether spending substantial and significant time with each parent is:
a)in the child’s best interests; and
b)reasonably practicable.
The term “substantial and significant time” is defined by s.65DAA(3) of the Act to include:
a)days that fall on weekends and holidays;
b)days that do not fall on weekends and holidays (i.e. school days); and
c)time that allows the parent and child to be involved in the child’s daily routine and occasions and events that are of significance to the child or the parent.
The matters that the Court must consider in determining whether it is reasonably practicable to spend equal time or substantial and significant time with a parent, the Court is required by s.65DAA(5) to have regard to a number of factors, including:
a)How far apart the child’s parents live from each other; and
b)The parents’ capacity to communicate with each other.
I have considered all of these matters.
Conclusions
In this case the parties agree that they should have equal shared parental responsibility for their two children. Whilst they have still have their differences, they have each told the Court that they can communicate about matters concerning their children’s care, welfare and development, and it would appear appropriate to apply the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility.
The parties agree that the two children should continue to live with the mother, who is their primary caregiver. Neither party seeks an order for the children to spend equal time with each parent. Such an arrangement would not appear to be practicable in all the circumstances.
The children spend substantial and significant time with their mother, but the Father’s time with the children would be somewhat less than that at this stage. The children are below school age. [X] does not start school until 2012 and [Y] is due to start school in 2013. It would be more suitable, and more in the children’s best interests, for their time with their father to increase steadily over time, so that they will be more comfortable spending longer periods of time with him in the future.
When considering whether substantial and significant time is reasonably practicable, it is relevant to note that the Father lives in [omitted] and the Mother lives in [omitted]. Whilst they are both suburbs of Sydney, they are a considerable distance apart and the Mother has raised concerns about the cost of fuel when travelling between the parties’ residences.
The parties have agreed about spending time with the children on days of significance to the parties and to the children. The Father is originally from Ecuador, and in that culture Christmas Eve has more significance than Christmas Day, so the parties agree that the children should be with him on that day and with the Mother on Christmas Day as a permanent arrangement.
It is in the children’s best interest to have a meaningful relationship with each parent. Whilst the Mother has good reasons to want to return to the arrangements that previously applied, those arrangements only saw the children spending one night a fortnight in their father’s care. The Mother does not oppose the children spending time with their father, but it is the practical details that are the problem. She conceded that the arrangements would need to be revised once the children commenced school. Her proposed orders would see a change once both children are at school.
In my view, the children should be spending more than one night a fortnight with their father. Whilst the Father’s accommodation is rather cramped at present, this will not always be the case. It is likely that his partner’s two daughters, who are both young adults, may well obtain their own accommodation in the foreseeable future. Why cannot the children go to their father’s home on alternate Thursday nights? That way, they can spend Thursday and Friday night with him.
The Father has temporary work on a Friday morning, but otherwise he is not required to work at his permanent job. Friday seems to be a good day for the children to be in his care whilst the children are not at school, an did the Father has a temporary commitment on the Friday morning then he should make appropriate arrangements for the children to be supervised over that relatively short time. The children should not spend the entire in day care at their mother’s expense when their father is going to be available. If he cannot arrange appropriate supervision for that limited time, the children could go into day care at his expense.
The arrangements should change once the older child, [X], starts school. There will be a major change in her routine then, and the orders to be made need to accommodate that fact.
I am not persuaded that the Father should do all the transporting of the children for the times that they are spending with him. It is a burden usually shared by the parents.
There is no evidence that the children are at risk of harm in the care of either parent.
The children are too young for their views to be considered.
The parents have a willingness and an ability to facilitate a close and loving relationship between the children and each of their parents. The Mother’s concerns are that the time with the Father needs to be built up slowly and gradually, so that they are comfortable spending extended periods of time with him. The Father concedes that this is necessary.
There is no real practical difficulty in the children spending time with each parent. The parents live in suburbs of Sydney, although they are a fair way apart.
It is relevant that the children’s father comes from Ecuador, so they have this cultural heritage on their father’s side that should add a depth and richness to their lives. There is only a small Ecuadorian community in Sydney, but there are cultural events from time to time, so it would be beneficial for the children to spend time with their father so that they may participate in such things from time to time.
There are no current family violence issues and there is no current family violence order in force.
It is desirable to make the orders that would be least likely to lead to the institution of further proceedings in respect of the children. Clearly, this would require orders that the children continue to live with their mother, who has been their primary caregiver, and spend reasonable time with their father, increasing over time.
Obviously, the factors causing irritation between the parties should be alleviated.
The Father should purchase some clothes for the children for use when they are spending time with him. Accidents happen and little children spill things on themselves or otherwise soil their clothes, so it is only common sense that there should be spare clothes available for the children to change into when necessary.
The Father presumably has a washing machine at his home. It would be surprising if the clothes in his household, which comprises himself, three women and two boys, were all washed by hand. In those circumstances, it would not be too onerous a task for the Father to put the children’s clothes in the washing machine when necessary. It would no doubt be a pleasant surprise for the Father to return some of the children’s clothes to her clean rather than dirty.
If the children are going to spend more time with their father over time, as the orders to be made will provide, the Father will need to spend more time looking after the children’s needs, including washing the children’s clothes.
The Father will have to spend gradually increasing time with his children so that their relationship with him develops. He should be able to participate in activities involving their schooling, once they are old enough to attend, and the children will spend more and more time with him over the school holidays, as they get older.
I order to alleviate any fears that either parent may have about the other parent removing the children from Australia, an injunctive order will be made to ensure that the children do not leave Australia without the consent of each parent or order of the Court. There is no need to make an order placing the children’s names on the Airport Watch List.
The Mother has concerns about the financial cost of raising two children as a single parent who works part time. Until both children are at school, she will be unable to work full time. The regular payment of child support by the Father will be an important factor and, if payments are made on time, it is likely that the relationship between the parents will be more cordial.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 April 2011
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