FERN & FERN
[2012] FamCA 545
FAMILY COURT OF AUSTRALIA
| FERN & FERN | [2012] FamCA 545 |
| FAMILY LAW - CHILDREN - PARENTAL RESPONSIBILITY – Where the parents have equal shared parental responsibility – where the mother seeks sole parental responsibility over children’s religion – The Court cannot prefer one religion over another - Morrison & Morrison (1995) FLC 92-639 distinguished - no orders as to allocation of parental responsibility as to religion - where Mother is of the Anglican Church and Father is of the Roman Catholic Faith FAMILY LAW - CHILDREN – With whom the Child spends time – midweek and holiday time – where mid-week time remains unchanged so as to ensure stability for children – where holiday time is allocated so as to ensure the children are not absent from the care of either parent for longer periods |
| Barry & Scott [2011] FamCA 205 Hunt & Theophane [2011] FamCA 205 Morrison & Morrison (1995) FLC 92-639 |
| Family Law Act 1975 (Cth) s 65DA and s 62B |
| APPLICANT: | Ms Fern |
| RESPONDENT: | Mr Fern |
| FILE NUMBER: | NCC | 911 | of | 2011 |
| DATE DELIVERED: | 19 July 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 20 & 21 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tregilgas |
| SOLICITOR FOR THE APPLICANT: | MRM Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bates |
| SOLICITOR FOR THE RESPONDENT: | Galloway Family Law |
Orders
That all previous parenting orders made to date are discharged.
That the parents shall have equal shared responsibility for the children L born … February 2001 and N born … November 2003 (together known as “the children”).
That the children shall live with the father at times set out herein (unless the parties agree to other and/or additional times) and shall at all other times live with the mother
3.1During school terms:
3.1.1in each alternate week from after school Thursday to before school Monday (extending to before school Tuesday if Monday is a public holiday) AND
3.1.2in the other week from after school Thursday to before school Friday.
3.2Order 3.1 shall be suspended from after school on the last day of each school term and resume during the next term as follows:
3.2.1Order 3.1.1 shall resume on the first Thursday of term when the children have been in the father’s care during the first week of the holidays; and
3.2.2Order 3.1.2 shall resume on the first Thursday of term when the children have been in the father’s care during the second week of the holidays.
3.3During school term holiday periods as follows:
3.3.1for the holidays at the conclusion of Terms 1 and 3, for a period of one week commencing in even numbered years at 8.00 am on the first Saturday of the holiday period and concluding at 5.00 pm on the second Saturday of that period; and
3.3.2in odd numbered years from 8.00 am on the second Saturday of the period and concluding at 5.00 pm on the third Saturday of that period.
3.4For the 3 week holiday period at the conclusion of Term 2:
3.4.1In even numbered years:
(a)for a period of 4 days commencing 8.00 am on the first Saturday and concluding at 6.00 pm on the first Wednesday;
AND
(b)for 1 week commencing at 8.00 am on the third Saturday and concluding at 5.00 pm on the fourth Saturday; and
3.4.2In odd numbered years for a period of 10 days from 6.00 pm on the first Wednesday of the period to 6.00 pm on the third Saturday of the period.
3.5For the Christmas school holiday period as follows:
3.5.1In even numbered years commencing in 2012:
(a)
for a period of 2 weeks concluding at 2.00 pm on
25 December 2012 (commencing in 2012 on Tuesday
11 December at 5.00 pm);
(b)for a period of 1 week in January commencing on the Saturday immediately after the expiry of two weeks from Christmas Day (commencing in 2012 at 8.00 am on Saturday 12 January 2013 and concluding at 8.00 am on Saturday 19 January 2013).
3.5.2In odd numbered years commencing in 2013:
(a)for a period of 1 week commencing at 8.00 am on the first Saturday of the holiday period (commencing in 2013 at 8.00 am on Saturday 7 December 2013 and concluding at 5.00 pm on Saturday 14 December 2013);
(b)for a period of 2 weeks from 2.00 pm on 25 December 2013 until 5.00 pm on Wednesday 8 January 2014.
The above Orders shall be suspended when relevant for the children to spend time with each parent as follows:
4.1on each of the children’s birthdays when the children will spend time with the parents they would not be living with on those days, from 4.00 pm to 6.00 pm if the child’s birthday falls on a weekday and from 4.00 pm to 8.00 pm if the child’s birthday falls on a weekend;
4.2with the mother for the weekend of Mother’s Day from 6.00 pm Saturday for the balance of that period;
4.3with the father for the weekend of Father’s Day from 6.00 pm Saturday until before school Monday with the father.;
4.4from 12.00 noon to 4.00 pm Easter Sunday when the children will spend time with the parent they are not living with on that day.
For the purposes of changeovers between the parents:
5.1on school days the father will collect the children from and return the children to school at the commencement and conclusion of each period of time;
5.2on non-school days the father will collect the children from the mother’s home at the commencement of his time and the mother will collect the children from the father’s home at the conclusion of that period.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fern & Fern has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC911 of 2011
| Ms Fern |
Applicant
And
| Mr Fern |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of two children. They are L aged 11 years and N aged 8 years.
These were final defended proceedings.
The parties resolved the property dispute. They also agreed on several aspects of the parenting dispute. What remained were the issues of parental responsibility and aspects of time to be spent with each parent.
A) Parental Responsibility
The orders sought by the applicant mother are as follows:
1. That the mother shall have sole parental responsibility for all matters involving religious instruction of the children provided she shall not change the children’s religion from the Anglican religion without the father’s consent or leave of the Court.
2. The mother shall have sole responsibility for allowing the children to be confirmed according to the rites of the Anglican religion and the father shall do all things to co-operate with the children attending confirmation classes while they are in his care.
3. In all other respects the parents shall have joint parental responsibility relating to the children’s welfare.
The orders sought by the father were that the parents have equal shared parental responsibility for the children.
B) Time to be Spent - Midweek
There was an agreement that the children spend time with their father each alternate weekend from Thursday after school until Monday before school and one night in the other week. The mother’s position was that the night should be Wednesday overnight. The father’s position was that it should be Thursday overnight.
C) Time to be Spent - Holiday Time
The orders sought by the mother were:
(a)Term holidays One period of five continual days from 8.00 am on on the Monday to 8.00 am on Saturday in each term holiday period.
(b)Christmas One week at the beginning of the holiday period,
10 days during the middle section of the holiday period, four days at the end of the holiday period.
The father’s proposal was that each parent would have a two week period and the balance of the time would be divided between the parents.
Short history of the matter
The parties began living together in late 1994 and married in November 1995. After five years of marriage, L was born and almost three years later, N.
In about 2005 the parties separated, but remained sleeping in separate rooms in the same house. They regarded the marriage as finally having broken down in March 2010 and in June 2011, an agreement was reached that the father would move out of the family home in Suburb A, which he did.
There was an interim hearing as to the appropriate parenting arrangements for the children. Those orders have been in place since early August 2011 and by agreement will continue, at least during school terms.
Issue: parental responsibility
Both parties agree, other than in relation to religious instruction, that the parents should have equal shared parental responsibility for the children. They have put behind them the issuing of an Apprehended Violence Order in response to a particular incident.
Since the two separate households have been established, the children have not been exposed to conflict or family violence and clearly both parents expect this to continue. This accords with my own views of the evidence and parents.
Specific issue relating to religious instruction
The mother seeks to have sole parental responsibility for all matters involving religious instruction of the children, for supervision of the children becoming confirmed and for return back to her during periods of time that they are living with their father, for attendance at their usual church. This is proposed both for periods of time during term and at Christmas time. The mother also seeks an order effectively restraining the father from taking the children to his local church, without the mother’s consent.
I was told during submissions that both parties understood and accepted that there was no basis on which the Court could prefer one faith over another (see Barry & Scott [2011] FamCA 205 at [6]; Hunt & Theophane [2011] FamCA 205 at [71] – [82]). However, the mother’s position was that the children having been baptized in the Anglican Church, with the consent of the father, and having attended that church exclusively all their lives until separation, that orders should be put in place to prevent any future disruption to this pattern. I take the view that the parents are united in their commitment to a religious upbringing for the children according to the rites and rituals of the Anglican Church. This does not exclude exposure to their father’s practice of his faith according to the rites and rituals of the Catholic Church.
The father’s position was that he is a practising Roman Catholic and has attended his own local Catholic Church throughout his life. He continued to do so during the marriage, sometimes dropping the mother and children off at the mother’s Anglican Church and then continuing on to attend his own service. He was supportive of the children being baptized as Anglicans and content for the children to attend church with their mother.
The situation changed when the father moved out of the home. When the children were with him, he took them along to church with him. The father does not oppose the children continuing to be involved in the Anglican Church, or to be confirmed in due course if that is their respective wish. Simply as a matter of parenting, he now includes the children in his own religious observation. The father made this statement: “I was parenting them, I kept them with me.” I accept that he was not attempting to subvert their involvement in the Anglican Church.
The mother accepted during her evidence that it was likely that the children would be interested to know about the religious difference between their parents, whether or not they had remained together, and no harm could come from such curiosity and education. I consider that there would be no benefit to the children in being returned to their mother for attendance at their own local church and then back to their father at conclusion. The message that would be conveyed to them would be a puzzling one and would be an unjustifiable disruption of their time with their father.
I was referred to the decision in the matter of Morrison & Morrison (1995) FLC 92-639. In that matter, orders were made restricting the husband from taking the children to a particular church without the written consent of the wife and requiring the husband to give the wife notice of an intention to involve them in various other church activities. However, those orders were made in a context of one parent being assessed to be dogmatic and having assumptions of superiority in his own faith and the parent in that case was dismissive of the mother’s views of religion. Accordingly, orders were put in place to ensure the children could participate in the beliefs of both parents without being adversely affected by their father’s single minded views.
In this matter in my view, there is no need for orders at all in relation to religious observation. There is no conflict between the parents in terms of parental responsibility that request a mechanism for conflict resolution. The parties have agreed and continue to agree, that the children will continue as members of the Anglican Church.
There is no evidence that the father has attempted to convert the children to his faith, or to subvert their confidence in their mother’s guidance. It will be a positive benefit for the children to come to understand that within the overall Christian faith, there are different points of view. Accordingly, there is an order for both parents to share equally in parental responsibility. There is simply a difference of religious preference between the parents, which has had no adverse impact on the children. There is no need for interference by the Court in this aspect of the children’s lives.
Issue: midweek time
Time to be Spent Midweek – Wednesday or Thursday night
The application of the mother is that the overnight visit in one week with the father should move from Thursday after school to Wednesday after school. The evidence in support of this position is contained in paragraphs 4 to 8 inclusive of the mother’s affidavit filed 10 February 2012, heading ‘Children’s Issues’.
The mother says that she works 35 hours a week, 8.30 am to 4.15 pm on Monday and Friday and 8.30 am to 5.00 pm Tuesday to Thursday. The mother is somewhat flexible in that she is able to work off-site up to five hours per week for family purposes.
The mother says that she works two evenings per week when she is available by mobile phone to address staff issues. She does not say which two evenings these are. However, the thrust of her application appears to be this. She, being employed in the education sector, is involved in the promotion of certain educational institutions, to promote their advantages and that the best and most preferred time for her to undertake those duties was on Wednesday night and Thursday morning. However, there is no evidence as to when those activities are presently undertaken.
The father’s position is that since the interim orders were made, he has made arrangements to be fully available to the children on Thursday afternoon, Friday morning and Thursday afternoon in each alternate week, so as to be fully available to them. The father conceded that he could adjust his arrangements so as to be available to the children on Wednesday evenings and Thursday mornings. However, the basis for his position was that he considered that it was a benefit to the children to know that they would always be at their father’s house on Thursdays.
There is force in this argument in my view. The children know that they go to school on Thursday in their dress uniform, taking their sports clothes ready to wear to school on Friday. They know that every week of term Thursday is the day that they go home with their father. L may be able to make the adjustment and remember that it’s Wednesday in one week and Thursday for the extended weekend in the other, but at eight, N will still be very much assisted by the predictably of the arrangement. The orders therefore continue in the previous pattern of Thursday overnight in the off-week.
This may represent inconvenience to the mother, but the basis for this determination is the best interests of the children and not adult inconvenience. The mother’s submission was that her career has taken second place to the career of the father and it is now her opportunity with a long working life ahead of her for that position to be reversed. However, the mother has the benefit and the burden of majority care of the children whilst working fulltime. For her, as for both parents, in the event that there are compelling work requirements during the evenings or at other times when the children are in their care, alternative arrangements including a request for assistance from the other parent, will need to be put into place.
Issue: holiday time
The children attend H School. They have an additional week holiday during the second term break, a total of three weeks, and an additional period between one and two weeks at Christmas time. This year the last day of term for the school year is 5 December 2012. Altogether annual holidays for the children are between 14 and 15 weeks in total.
The mother has 11 weeks leave, two weeks between each term and five weeks at Christmas. The father has four weeks leave with some capacity to draw on additional holiday time and extended long service.
The parents agree that for the first week of the second term holiday and for the one or two weeks at the beginning of the Christmas holiday period, there is no holiday care available and they would each have to make arrangements for care of the children during the day when they are working. The mother’s leave expires before the end of the school holiday period and both parents will be working in that last week.
Each parent seeks something different for all of the holiday periods. In particular the mother seeks orders for the children to spend five days in each of the term holidays commencing at 8.00 am on Monday and concluding at
8.00 am on Saturday. It is difficult to see why there should not be a sharing of the term holidays and an inclusion of at least one full weekend in each holiday period. No particular submission was put forward in support of this proposal. Indeed, there was agreement between the parents that the children enjoy their time with the father and the extended paternal family when there are opportunities to see them.
The father’s proposal was that there should be a week in each of the term holidays running from the end of school for a period of one week. This arrangement is unlikely to be suitable for the children given that they would have to take their clothes and equipment for the holiday with them to school on that last day, which is an uncomfortable and unnecessary burden for them.
I accept the evidence of the mother that she was annoyed on the Sunday before the commencement of this hearing, when the father arrived at her home with the washed and ironed clothes of the children rather than sending them back with the children in their school bag. She regarded these actions as both an intrusion on her time and an attempt by the father to spend time with the children when they should have been exclusively with her.
It seems unlikely therefore that there could be an agreement that the children’s bags could simply be collected by the father from the mother’s home on the Friday. Accordingly, the orders provide for term holiday periods to commence at 8.00 am on Saturday morning.
In relation to Christmas, there was an agreement between the parties that the children would spend time with the father from 2.00 pm 24 December until 2.00 pm 25 December in each alternate year and from 2.00 pm 25 December until 2.00 pm 26 December in each odd year.
The parties did not otherwise agree. They did agree that simply dividing the holidays in half was not appropriate. Each thought that three and a half weeks would be too long for the children to go without seeing the other parent. There is a need for the children to spend free time with each of their parents, as well as time when arrangements have been made for their care by third parties.
Accordingly, the orders provide for time to conclude at 2.00 pm on Christmas Day in even numbered years and to commence at 2.00 pm on Christmas Day in odd numbered years, for periods of two weeks at a time. That allows each parent to spend at least two weeks, a little more for the mother, of an unbroken holiday period. There is benefit to the children in being able to go away in the usual way camping with their mother and to visit their paternal grandfather and other relatives with their father.
In relation to other orders, I was told that there had been an agreement about special days. However, the orders sought in respect of Mother’s Day and Father’s Day were different for each party. Accordingly, rather than determine a dispute as to whether time on those special days should start at 10.00 am or 11.00 am and for what period of hours they should be, I have taken the view that the benefit for the children would be to spend the whole of that special day from the time they wake up until the time they go to sleep with the relevant parent.
Accordingly, the orders provide for each of those days to commence on the Saturday evening prior to the special day and to continue to school on the Monday morning.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19th July 2012.
Associate:
Date: 19th July 2012
Key Legal Topics
Areas of Law
-
Family Law
0
0