Fernie and Mercer
[2014] FCCA 3024
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERNIE & MERCER | [2014] FCCA 3024 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Interim Orders – where father seeks to spend more time with the children – best interests of the children considered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 65DAA, 68L |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MS FERNIE |
| Respondent: | MR MERCER |
| File Number: | SYC 7344 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 18 December 2014 |
| Date of Last Submission: | 18 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms McIntosh |
| Solicitors for the Respondent: | JNT Legal |
| Independent Children's Lawyer: | Ms Power |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are vacated.
The Applicant mother and the Respondent father are to have equal shared parental responsibility for the children X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2006.
The children X, Y and Z are to spend time with the father as follows:
(a)During school terms as follows:
(i)Each alternate Friday from immediately after school until the commencement of school on the Monday morning, commencing on Friday 19 December 2014;
(ii)Each alternate Thursday from immediately after school until the commencement of school on the Friday morning; and
(iii)In the event that the children’s weekend time with the father falls on a long weekend including a Monday then the children’s time with the father will be extended to 5:00 pm on Monday;
(b)During the end of Term 1, 2 and 3 school holiday periods the children will spend time with the father for a period of seven (7) block days from Friday at 5:00 pm until the following Friday at 5:00 pm with such time coinciding with the time the children would usually spend with their father in accordance with Order (3)(a)(i);
(c)During the end of the Term 4 school holiday period in alternating one week (seven day) block periods to coincide with the times the children would normally spend with the father in Order (3)(a)(i) above, that is, the children will spend time with the father each alternate Friday from 5:00 pm until the following Friday at 5:00 pm;
(d)Order (3)(a)(ii) is suspended during all school holiday periods;
(e)Any variation of the above or additional time as agreed between the parties including not limited to the period 12 to 15 February 2015 when the child Z will spend time with the father at a sporting event in (omitted).
Notwithstanding Order (3)(c) above the children will spend from 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day with the mother in 2014 and all years ending in an even number thereafter and with the father from 4:00 pm on Christmas Day until Boxing Day 26 December 2014 at 1:30 pm.
In the event that the children’s time with the father falls on the weekend of Mother’s Day then the children’s time with the father will conclude at 5:00 pm on the Saturday of that weekend.
In the event that the children are not spending time with the father on Father’s Day in accordance with these Orders then the children will spend time with the father from 5:00 pm on the Saturday before Father’s Day until the commencement of school on Monday morning.
For the purpose of changeover between the parties where the children go from the care of one party to the other on non-school days the father will collect the children from the mother’s residence or as otherwise agreed between the parties.
The mother and father will each be entitled to spend three (3) hours with the children on the children’s birthdays at times by agreement between the parties.
For the purposes of communicating information between the parties the mother and father shall:
(a)Communicate by telephone matters of an urgent nature; and otherwise:
(b)Communicate by email about day to day matters including information about the children receiving invitations when the event is to occur when the child is in the other parent’s care.
The mother must ensure that the father is kept informed of:
(a)Any medical problems or illnesses suffered by any of the children while in the mother’s care; and
(b)Any medication that has been prescribed for any of the children.
The father must ensure that the mother is kept informed of:
(a)Any medical problems or illnesses suffered by any of the children while in the father’s care; and
(b)Any medication that has been prescribed for any of the children whilst in the father’s care.
Both parties are at liberty to receive information from the children’s schools such as newsletters and information regarding school events.
IT IS NOTED that the child X is at liberty to spend time with the father during the school term in accordance with her wishes.
The parties are to attend upon a Family Consultant at a time and on a day nominated by the Director of Child Dispute Servicers for the purpose of interviews towards the preparation of an updated Family Report under the provisions of s.62G of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Fernie & Mercer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7344 of 2012
| MS FERNIE |
Applicant
And
| MR MERCER |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father for a “substantial and significant time regime” with the parties’ three children, X, aged 12, Y, aged 10, and Z, aged 8 years. Up until the present time, there have been no orders setting out a regime whereby the father spends time with the children. What there has been is an informal arrangement between the parties, to the effect that the father spends each alternate weekend with the children from after school on Friday until before school on Monday.
X was born on (omitted) 2002. Y was born on (omitted) 2004. Z was born on (omitted) 2006. They all live with their mother and spend varying amounts of time with their father.
The Family Report in this matter was released to the parties, including the Independent Children’s Lawyer, which contains a number of recommendations. The father seeks parenting orders in accordance with those recommendations. He points out that, due to the strain on the Court’s resources, the final hearing, in respect of property and parenting matters, has been scheduled to run from 2 to 4 December 2015, almost a year away.
The Family Report
The Family Report was completed on 18 August 2014 by Ms R, a Family Consultant at this Registry. In her Report, Ms R noted that the older girl, X, only spends time with her father during the school holidays but the other two children spend every second weekend and half the school holidays with him. The father has been seeing the children at their school and telephones them “sometimes four times a week”[1].
[1] Family Report 18.8.2014 at [3]
Ms R noted that the mother proposed that the parenting arrangements should either stay as they are or possibly increase to include Y and Z spending from Thursday after school every second weekend until Monday morning before school. She proposed to continue the arrangement whereby all three children spent half of the school holidays with their father. She sought an order that she should have sole parental responsibility for the children.
Ms R also noted that the father proposed that:
a)Y should live with him and spend time with his mother when he wished to do so;
b)The girls X and Z should spend time with him from Friday after school until before school Wednesday; and
c)The parties should continue to share parental responsibility for the children.
The Family Consultant recorded the following issues in dispute between the parties:
a)Whether or not there should be different parenting arrangements for the children;
b)How much time the children should spend with each parent;
c)Allegations regarding family violence; and
d)Concerns raised by the father about the mother’s alcohol use.
The Family Consultant also identified these issues:
a)The impact of the parental conflict on each child; and
b)The impact of the parental conflict on the sibling relationships.
The Family Consultant, in her evaluation, stated that:
Y and Z both said that they would like to spend more time with their father. Ms R said that she would be happy for the children to spend from Thursday after-school until Monday before school with Mr Mercer.[2]
[2] Family Report page 21 at [60]
The Family Consultant had this to say of X:
X has not been spending regular time with her father but has maintained a relationship with him. Whilst it could cause further problems in her relationship with Mr Mercer to try to force her to spend time with him every second weekend, it could also be detrimental to their relationship not to include her in orders. X seems to think that her father does not care as much about her as he does Y and not including her could reinforce that.[3]
[3] Ibid at [61]
The Family Consultant did not support the mother’s proposal that she should have sole parental responsibility for the children, saying:
Whilst the parents may find it difficult to negotiate with one another, it is important for their relationships with the children to both be actively involved in decisions for them.[4]
[4] Ibid page 22 at [63]
The recommendations in the Family Report are that:
a)The parents should continue to share parental responsibility;
b)The three children should spend from Thursday after school until Monday before school every second week with their father;
c)The children should spend from after school every Tuesday until before school on Wednesday with their father;
d)Each parent should request the assistance of the other in the first instance if they are unable to care for the children or transport them to their activities;
e)Neither parent should attend the children’s schools when it is not their day to pick up or drop off the children; and
f)The children should be referred to the Anchor program
Evidence and Submissions
The mother relied on her affidavit of 1 December 2014.
The father relied on the Family Report and his affidavit of 13 December 2014. His counsel, Ms McIntosh, prepared a Case Outline. She also provided two different proposals for orders sought by the father.
The Independent Children’s Lawyer, Ms Power, prepared a Minute of proposed interim orders. The mother told the Court that she agreed with the interim orders proposed by the Independent Children’s Lawyer, stating that they were moving in accord with the current arrangements. Counsel for the father said that her client agreed with everything proposed by the Independent Children’s Lawyer except for the proposals for him to spend time with the children set out in Order 3 of the Minute. She tendered a Certificate of Attendance showing that the father had attended a course called “Keeping Kids in Mind”.
The Independent Children’s Lawyer submitted that without Orders being in place the children had not needed any additional interim orders. She submitted that one extra night each fortnight would be beneficial for the children and suggested that it should be the Thursday night of the off week of the fortnight.
Ms Power noted that the two younger children had said that they wanted to spend more time with their father[5] and went on to say that the Court should take a small step to start with.
[5] Family Report page 18 at [49]-[50]
The mother submitted that the Family Report should be updated prior to the final hearing in December 2015. She also said that the orders proposed by the Independent Children’s Lawyer would help to set some boundaries in the interim period and would give security and stability to the children. She thought that the children would be happy with this arrangement.
Counsel for the father submitted that if the mother sought stability, routine and safety for the children, there was a very good Family Report that provided recommendations that would meet all of those objectives.
There were some particular points that needed to be decided; one of them was the fact that the youngest child Z was to attend an (omitted) championship in (omitted) from Thursday 12 February to Sunday 15 February 2015. The father wanted to spend that time with Z.
The mother agreed with the proposal for the father to take Z to (omitted) for the entirety of the proposed time and pointed out that Y had a sporting event on Friday 13 February, which meant that he would not be able to go to (omitted). However, she would arrange to take him to this event. As for the father’s school holiday proposals the mother said that she had already made plans for the holidays.
Proposals
The Independent Children’s Lawyer proposed in her Minute that:
a)The parties are to have equal shared parental responsibility for the children;
b)The children should live with the mother;
c)The children should spend time with the father:
i)Each alternate weekend from after school on Friday until before school on Monday morning, extending to 5:00 pm on the Monday if the Monday is a public holiday;
ii)On alternate Thursdays (in the off week) overnight until before school on Friday morning;
iii)A block of seven days during the Terms 1, 2 and 3 school holidays; and
iv)Alternating seven day blocks with the father during the end of Term 4 school holiday period.
The mother told the Court that she agreed with this proposal.
The father submitted two proposals.
Proposal One, his preferred proposal, was that the children would live with the mother and spend time with him:
a)In the first week of each fortnight, from after school on Thursday until before school the following Tuesday;
b)In the second week, from after school on Tuesday until the commencement of school on Wednesday, commencing in March 2015.
The children would spend half of the mid-year school holidays with him, alternating between the first half in 2015 and subsequent odd-numbered years and the second half in 2014 and subsequent even-numbered years.
The father proposed that the children would spend a block of three weeks with him during the Christmas school holiday period.
Proposal Two, the father’s alternate proposal, was that the children would live with the mother and spend time with him:
a)In the first week of the fortnight, from after school Thursday until before school on the following Monday;
b)Commencing in March 2015, in the second week of the fortnight from after school on Tuesday until before school on Wednesday morning; and
c)Commencing in May 2015, from after school each Tuesday until before school on Wednesday morning.
The school holiday proposals were identical to those in Proposal One.
The Relevant law in regard to parenting applications
When the Court is considering making parenting orders, whether final orders or orders until further order (interim orders), it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, the Court should have regard to the provisions of:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or children) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in children’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.
All of those matters have been considered, so far as they are relevant.
Relevant matters in section 60CC of the Family Law act
The Full Court of the Family Court, in Goode & Goode[6], requires the court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:
…in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[7]
[6] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[7] (2006) 36 Fam LR 422 at 445 [82]
In this case, the primary considerations in s.60CC(2) are the benefit to the children of having a meaningful relationship with both parents and the need, if such there be, to protect the child from physical or psychological harm from abuse, neglect, or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.
In my view, the family violence alleged is verbal rather than physical, and it is claimed to have been directed at the mother rather than the children. The father deposes in his affidavit of 15 December 2014:
I do not have any criminal convictions
I have never been charged nor convicted of any criminal offence.
I have never been a defendant in any Apprehended Domestic Violence Order proceedings.
I do not physically discipline the children who are at all times safe in my care. Rather, I love the children dearly and would never do anything to hurt them.[8]
[8] Affidavit of Mr Mercer 15.12.2014 at [5]-[8]
The mother has not led any evidence to deny those assertions.
It appears that the worst that can be said is that the father is claimed by the mother to have used abusive language to the mother in the presence of one of the children. I am not satisfied that there is any unacceptable risk to the children.
The primary consideration in s.60CC(2) is the benefit to the child (or children, in this case) of having a meaningful relationship with both of their parents. It would seem to me that spending a bit more time with their father by means of another night each fortnight would be conducive to this, and a pick up from school on the Thursday afternoon with a return to school the following morning would avoid the parents having to meet at changeover.
A very important additional consideration in s.60CC(3) is found at paragraph (a):
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The Court may inform itself of views expressed by a child by having regard to anything contained in a Family Report under s.62G(2) or by having the child’s independently represented by a lawyer under s. 68L (s.60CD(2)). Both Y and Z have expressed a wish to spend more time with their father, as reported by the Family Consultant, and an additional night a fortnight will help to meet the children’s wishes.
Equal shared parental responsibility and section 61DA of the Act
The Court is required to decide whether the presumption in s.61DA that equal shared parental responsibility is in the children’s best interests does or does not apply.
The Family Consultant recommends in the Family Report that the parents should have equal shared parental responsibility for the children. The Independent Children’s Lawyer, with whom the mother agrees, proposes in her Minute of Proposed Orders that the parties should have equal shared parental responsibility for the children.
The father, in both of his Proposals, seeks an order that the parents should have equal shared parental responsibility for the children.
I consider it appropriate to make an order that the parties should have equal shared parental responsibility for the children.
Section 65DAA of the Family Law Act
Section 65DAA of the Act requires the Court, when a parenting order provides that a child’s parents should have equal shared parental responsibility for the child, to consider whether the child spending equal time, or in the alternative, substantive and significant time, with each parent is both in the child’s best interests and reasonably practicable.
The poor communication between the parents does not augur well for an equal time arrangement, even though the parties only live about three kilometres apart. It must be made clear that the fact that parents live relatively close to each other is not the final determinant whether an arrangement is reasonably practicable. Subsection 65DAA(5) provides that the Court must also have regard to:
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
I am not satisfied that an equal time arrangement would either be in the children’s best interests and reasonably practicable. In considering substantial and significant time, the children are clearly spending substantial and significant time with their mother but are not doing so with their father at present.
The arrangement proposed by the Independent Children’s Lawyer would come close to meeting the definition of substantial and significant time in subsection 65DAA(3) of the Act.
Orders that are in the children’s best interests
In my view, the interim orders proposed by the Independent Children’s lawyer are in the children’s best interests at this stage. They provide for extra time for Z and Y with their father, which is what they have both been mentioned that they would like. They also provide for X to spend time with her father during the school term, according to her wishes.
The proposed orders also provide for the children to spend Fathers’ Day with their father and Mothers’ Day with their mother, as well as making provision for the children’s and parents’ birthdays. The father would like to spend a longer block of time with the children over the Christmas/January school holidays, rather than alternating blocks of a week at a time, but that is a matter that can be considered at a final hearing. In the meantime, the parties now have a structure within which to work over the various school holidays as well as during the school term.
I will order that an updated Family Report should be prepared, noting that it will be nearly a year until the final hearing can take place.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 7 January 2015
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